Ok Friends so here is an interesting situation of mine.
I got finger print request which i sent on time.Then received another request from CIC that they want more details related to the criminal charges shown on my finger print result.
History
I had criminal charges due to domestic assault and got conditional discharge with 1 year probation.
Cic wanted documents from court showing that i got conditional discharge related to criminal charges. I have already provided the information now from court which shows that i completed my probation successfully so as per my understanding i should have no issues
and should be able to count the time during probation as well coz i completed it successfully.
Now i am nervous and hopeful that any one among you who are familiar with this kind of situation guide me for the next steps.
I am hoping to get test invite now but just wanna know if previous record will create any issues. Thank you in advance.
Some of the possible fact situations will indicate NO PROBLEM, no problem at all. There are, however, numerous variables which, if those are the facts, could mean there is a likely problem.
The easy one, the NO PROBLEM one:
If this criminal case was TOTALLY RESOLVED, so that the court's disposition shows a final discharge date (probation completed and any other conditions met) as of a DATE BEFORE the date you applied for citizenship, AND you checked "yes" in the physical presence calculator, and reported the from and to date for the period of time on probation, and the presence calculation total showed you meet the requirement to be physically present in Canada (for 1095 in five years if you applied on or after October 11, 2017), then it is almost certain this is NOT a PROBLEM. Of course I am no expert. This observation is subject to particular details. BUT basically if it was ALL DONE, probation over, BEFORE you applied, AND you entered the from-to dates of probation in the presence calculator, all really should be well. No worries.
But, I am guessing you did
NOT enter the dates you were on probation in the presence calculator. And if you deduct the days on probation, you do not meet the physical presence requirement.
Which muddies the waters.
THUS in what follows
I am going to take the long, long way around to conclude I DO NOT KNOW the answer to your query. I take the long way around for two reasons:
-- to illuminate why you should not rely on me or anyone in a forum like this to give you a reliable answer (to be frank, I doubt you can get a reliable answer to this from a help centre telephone agent . . . too many details and complications involved)
-- to illuminate enough for you to have a better sense for yourself about what potential issues could be (depending on various facts in your specific situation), enough to make a reasonable decision whether to see a lawyer or to simply WAIT and see what IRCC does
My guess (emphasis on it being a
guess) is you can wait and see, and trust IRCC to make the correct, proper decision. To be more sure, you could consult with a lawyer experienced in immigration and citizenship.
In the meantime, taking the long, long way around . . .
The particular details in the criminal case charges and disposition determine how the case affects an individual's eligibility for citizenship AND how it may affect the calculation of days physically present. Sorting out such matters is typically beyond the expertise anyone in a forum like this can reliably do, and in particular I do NOT have the expertise to adequately evaluate how the criminal charges and the outcome in those proceedings affect your citizenship application.
I can offer some information about how criminal charges affect citizenship applications generally, and cite the relevant provisions in the Citizenship Act.
Unfortunately, however, I may NOT be offering good news . . . DEPENDING on the details in your physical presence calculation.
Foremost, there are TWO MAIN but SEPARATE ISSUES which relate to how criminal charges can affect a citizenship applicant.
These are, in very basic terms:
-- whether the individual is subject to a PROHIBITION which would make the person NOT eligible for citizenship, or
-- if the criminal case resulted in time which cannot be counted as time present in Canada (this is the one which appears might be problematic for you, but again I am NO expert so I do not know for sure how this works in all cases)
The latter poses the more difficult question to answer. I will address prohibitions in some depth in a subsequent post, but first . . .
AFFECT ON CALCULATION OF DAYS PRESENT IN CANADA:
If you still have enough days present to meet the minimum requirement AFTER deducting days on probation, you should be OK, no worries, no problem.
I'm sensing that is not the case.
And this appears to be the more probable issue POSSIBLY affecting you (I do not know it is but apprehend it might).
Days on probation do not count as days present in Canada. Days on probation in effect count as days
ABSENT from Canada. This is prescribed in Section 21(a) of the Citizenship Act. See:
http://laws-lois.justice.gc.ca/eng/acts/C-29/page-6.html#docCont
If you followed the instructions in completing the online presence calculator, answered yes to question about having spent any time on probation or a conditional sentence, and then properly entered the dates you were on probation during the eligibility period . . . and then your presence calculation still met the minimum requirement, again THAT IS OK. The presence calculation would deduct those days (count them essentially the same as days NOT in Canada).
It appears, however, this may not be how you went about this. You state it is your understanding:
"[you]
should be able to count the time during probation as well coz [you]
completed it successfully"
That is contrary to my understanding and not what
the statute states (should link). To be clear, the statute states:
21 Despite anything in this Act, no period may be counted as a period of physical presence for the purpose of this Act during which a person, under any enactment in force in Canada, . . . (a) has been under a probation order
Again, I am NO expert so I do not know for certain how IRCC actually interprets and applies these things . . . and especially so in regards to a period of probation which has been a successfully completed pursuant to totally discharging the charges, with NO criminal conviction at all.
On one hand, the literal meaning of Section 21(a) is that any days on probation "under
any enactment in force in Canada" DO NOT COUNT.
In contrast, the physical presence calculator asks:
Did you spend time serving a sentence for an offence in Canada (e.g. "term of imprisonment", conditional sentence, probation and or parole) between yyyy/mm/dd and yyyy/mm/dd?
Key terms in this include "servicing a
sentence for an
offence." But "conditional sentence" and "probation" also loom as important.
The statutory language literally excludes any days on probation. The presence calculator appears to depend on there being a "sentence for an offence." Whether IRCC considers a completed period of probation followed by a full discharge to be "for an
offence" or not, I cannot so much as guess.
Whether this is something you want to go to a lawyer for a consultation about, that is for you to decide. IRCC will let you know how they do approach this situation, and the odds are high that the decision IRCC makes will be a proper and legal decision, almost certain to be upheld upon review. So you could simply wait to see what IRCC does. Odds are high you can rely on what IRCC decides.
As I said, I was taking the long, long way around to saying I do not know how this will affect the application. And I think no one else here can say so either, not reliably.
I will address prohibitions some in another post . . .
