Citizenship oath taking on hold because of dui
- Thread starter Charlen78
- Start date
HilariousSeriously, as the others said, don't wait. Take the oath.
On the plus side, you'll possibly get two ceremonies to enjoy
For OP:
It is always risky to opine about criminal cases or issues involving criminal prosecutions without knowing a lot of precise details, including precise formalities. And this forum is NOT an appropriate venue for sharing enough of that information to support an opinion about the individual case.
These matters tend to especially invite uninformed or even outright misinformation, and even if relatively accurate it is often misleading.
Sure, there are some easy to assess scenarios. A conviction for driving while impaired resulting in death for which the individual is actually imprisoned for a period of years, for example, that is a scenario for which it is easy to conclude that there is both a prohibition (prohibiting a grant of citizenship) and grounds for IRCC to determine the individual is inadmissible on the grounds of serious criminality. The latter would result in the loss of PR status and COULD then lead to actual REMOVAL proceedings.
It appears this particular offence occurred prior to December 20, 2018, and thus was an offence under the PREVIOUS law. Probably OK to ignore comments above based on changes to the law as they probably have NO relevance.
I am NO expert and again the precise details make a huge difference . . . but it seems likely this matter was prosecuted as a SUMMARY offence, and thus the reason for the hold on citizenship is that the disposition in the case included a term of probation. As long as a PR is on probation the PR is prohibited from being granted citizenship. How IRCC in fact handles such situations appears to vary. Technically it is grounds to deny/reject the application and make the PR start over. But it appears that sometimes (many times? I do not know) IRCC will not do this for a summary conviction and will simply put the application on hold and proceed with it once probation is terminated (probably when the interlock device comes off).
My understanding is that under the prior law there could have been a prosecution by indictment. That would have invoked a prohibition for four years.
RE SOME MISLEADING OR MISINFORMED OBSERVATIONS:
See further observations below.
See further observations below.
At the other end of the matter, as to what constitutes "serious criminality" and is thus grounds for a determination of inadmissibility for serious criminality (See Section 36 IRPA https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-8.html#h-24 ), it is NOT true that serious criminality "only happens if you are sentenced for more than 6 months." The other alternative is being convicted of an offence "PUNISHABLE" by a maximum term of imprisonment of at least 10 years.
Thus, there are two alternative ways in which a conviction can make a PR "inadmissible on grounds of serious criminality," and that is if the conviction:
OVERALL PROCESS OBSERVATIONS:
While a PR determined to be inadmissible on grounds of serious criminality has "no right of appeal," there are several steps in the process affording the PR procedural fairness. Nothing is "automatic." Even when determined to be inadmissible, and PR status is thereby terminated, in addition to potential judicial review of that decision the individual cannot be summarily deported . . . while I am not well acquainted with all the precise avenues of recourse available (such as the formal pre-removal risk assessment process), such matters populate scores of Federal Court cases.
WHICH BRINGS THIS AROUND TO CURRENT DRIVING WHILE IMPAIRED OFFENCES:
DATE of OFFENCE: First, the question of WHEN the offence took place.
My understanding is that the increased punishment for driving while impaired offences did not take effect until late December 2018 (180 days after the date of Royal Assent). It appears that the offence referenced by the OP is approaching the end of a year since date of disposition, let alone date of the offence. If so, it is NOT likely the new law governs this offence; rather it is probably the previous less serious punishment provisions that apply, so that there is NOT serious criminality implicated here. (A similar issue, regarding older changes in the law, has been to some extent litigated, when Harper-Kenney were pursuing PR criminality aggressively, but I do not clearly recall the result of that litigation; pursuant to the outcome of that litigation it may be POSSIBLE the amended punishment could be what currently defines serious criminality even if the underlying act in the offence predated the new law, but my strong impression is that these particular changes are more comprehensive and substantive and probably NOT applicable to acts done prior to the late December 2018 effective date.)
SEVERITY OF THE CHARGE ITSELF:
The new driving while impaired provisions are complex, intended to cover a wide range of variable situations and circumstances.
The run-of-the-mill, so to say, driving while impaired offence, is fairly basic albeit subject to some enhanced minimum penalty provisions, such as higher mandatory minimum fines for specified higher blood-alcohol content.
BUT there is a huge distinction depending on whether the offence is prosecuted by indictment or by summary offence. ONLY IF THE OFFENCE IS PROSECUTED BY INDICTMENT IS A CONVICTION PUNISHABLE BY A TERM OF IMPRISONMENT OF TEN YEARS (or less).
As I previously observed, one prong of what constitutes "serious criminality" as grounds for PR inadmissibility is based on the actual term of imprisonment. If actually imprisoned to more than six months, that is grounds for serious criminality. Even if the offence was prosecuted as a summary offence.
The other prong of serious criminality is defined as a conviction for an offence PUNISHABLE by a term of imprisonment for 10 or more years. Even if NO jail time is imposed, if the offence can carry a term of imprisonment for 10 years, a conviction constitutes serious criminality.
THUS, for DRIVING WHILE IMPAIRED (new law as of December 2018):
All that said, it continues to be likely that run-of-the-mill first and second driving while impaired offences, where no accidents (no injuries, no deaths) are involved, no fleeing police or other aggravating circumstances, will USUALLY be prosecuted as a summary offence and NOT result in imprisonment that will trigger the serious criminality provisions of Section 36(1) IRPA.
And, in turn, that said, make no mistake: driving while impaired is serious and has serious risks. Even when an accident is not the fault of an impaired driver, if there are injuries let alone death the consequences can be severe. And it is always possible that even the most run-of-the-mill driving while impaired offence might be prosecuted by indictment, and that would make a conviction meet the serious criminality definition even if there is NO jail time.
It is always risky to opine about criminal cases or issues involving criminal prosecutions without knowing a lot of precise details, including precise formalities. And this forum is NOT an appropriate venue for sharing enough of that information to support an opinion about the individual case.
These matters tend to especially invite uninformed or even outright misinformation, and even if relatively accurate it is often misleading.
Sure, there are some easy to assess scenarios. A conviction for driving while impaired resulting in death for which the individual is actually imprisoned for a period of years, for example, that is a scenario for which it is easy to conclude that there is both a prohibition (prohibiting a grant of citizenship) and grounds for IRCC to determine the individual is inadmissible on the grounds of serious criminality. The latter would result in the loss of PR status and COULD then lead to actual REMOVAL proceedings.
It appears this particular offence occurred prior to December 20, 2018, and thus was an offence under the PREVIOUS law. Probably OK to ignore comments above based on changes to the law as they probably have NO relevance.
I am NO expert and again the precise details make a huge difference . . . but it seems likely this matter was prosecuted as a SUMMARY offence, and thus the reason for the hold on citizenship is that the disposition in the case included a term of probation. As long as a PR is on probation the PR is prohibited from being granted citizenship. How IRCC in fact handles such situations appears to vary. Technically it is grounds to deny/reject the application and make the PR start over. But it appears that sometimes (many times? I do not know) IRCC will not do this for a summary conviction and will simply put the application on hold and proceed with it once probation is terminated (probably when the interlock device comes off).
My understanding is that under the prior law there could have been a prosecution by indictment. That would have invoked a prohibition for four years.
RE SOME MISLEADING OR MISINFORMED OBSERVATIONS:
NOT likely. For sure NOT necessarily. And depending on the date of the offence, possibly NOT at all.
See further observations below.
Likewise: NOT likely. For sure NOT necessarily. And depending on the date of the offence, possibly NOT at all.
See further observations below.
Deportation is rarely "automatic." It is for sure NOT automatic for Canadian Permanent Residents. PRs are entitled to be in Canada. The only "automatic" termination of PR status occurs when the PR becomes a citizen OR there is a cessation of protected person status (applicable to refugee-PRs).
At the other end of the matter, as to what constitutes "serious criminality" and is thus grounds for a determination of inadmissibility for serious criminality (See Section 36 IRPA https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-8.html#h-24 ), it is NOT true that serious criminality "only happens if you are sentenced for more than 6 months." The other alternative is being convicted of an offence "PUNISHABLE" by a maximum term of imprisonment of at least 10 years.
Thus, there are two alternative ways in which a conviction can make a PR "inadmissible on grounds of serious criminality," and that is if the conviction:
-- results in actual imprisonment for more than six months, or
-- results in being convicted of an offence punishable by imprisonment for 10 or more years
-- results in being convicted of an offence punishable by imprisonment for 10 or more years
OVERALL PROCESS OBSERVATIONS:
While a PR determined to be inadmissible on grounds of serious criminality has "no right of appeal," there are several steps in the process affording the PR procedural fairness. Nothing is "automatic." Even when determined to be inadmissible, and PR status is thereby terminated, in addition to potential judicial review of that decision the individual cannot be summarily deported . . . while I am not well acquainted with all the precise avenues of recourse available (such as the formal pre-removal risk assessment process), such matters populate scores of Federal Court cases.
WHICH BRINGS THIS AROUND TO CURRENT DRIVING WHILE IMPAIRED OFFENCES:
DATE of OFFENCE: First, the question of WHEN the offence took place.
My understanding is that the increased punishment for driving while impaired offences did not take effect until late December 2018 (180 days after the date of Royal Assent). It appears that the offence referenced by the OP is approaching the end of a year since date of disposition, let alone date of the offence. If so, it is NOT likely the new law governs this offence; rather it is probably the previous less serious punishment provisions that apply, so that there is NOT serious criminality implicated here. (A similar issue, regarding older changes in the law, has been to some extent litigated, when Harper-Kenney were pursuing PR criminality aggressively, but I do not clearly recall the result of that litigation; pursuant to the outcome of that litigation it may be POSSIBLE the amended punishment could be what currently defines serious criminality even if the underlying act in the offence predated the new law, but my strong impression is that these particular changes are more comprehensive and substantive and probably NOT applicable to acts done prior to the late December 2018 effective date.)
SEVERITY OF THE CHARGE ITSELF:
The new driving while impaired provisions are complex, intended to cover a wide range of variable situations and circumstances.
The run-of-the-mill, so to say, driving while impaired offence, is fairly basic albeit subject to some enhanced minimum penalty provisions, such as higher mandatory minimum fines for specified higher blood-alcohol content.
BUT there is a huge distinction depending on whether the offence is prosecuted by indictment or by summary offence. ONLY IF THE OFFENCE IS PROSECUTED BY INDICTMENT IS A CONVICTION PUNISHABLE BY A TERM OF IMPRISONMENT OF TEN YEARS (or less).
As I previously observed, one prong of what constitutes "serious criminality" as grounds for PR inadmissibility is based on the actual term of imprisonment. If actually imprisoned to more than six months, that is grounds for serious criminality. Even if the offence was prosecuted as a summary offence.
The other prong of serious criminality is defined as a conviction for an offence PUNISHABLE by a term of imprisonment for 10 or more years. Even if NO jail time is imposed, if the offence can carry a term of imprisonment for 10 years, a conviction constitutes serious criminality.
THUS, for DRIVING WHILE IMPAIRED (new law as of December 2018):
-- If prosecuted as a summary offence but an actual term of imprisonment for more than six months is imposed, that makes it grounds for serious criminality inadmissibility.
-- If prosecuted by indictment, regardless what actual penalty is imposed, a conviction is grounds for serious criminality inadmissibility (because it is punishable by ten years imprisonment).
-- If prosecuted by indictment, regardless what actual penalty is imposed, a conviction is grounds for serious criminality inadmissibility (because it is punishable by ten years imprisonment).
All that said, it continues to be likely that run-of-the-mill first and second driving while impaired offences, where no accidents (no injuries, no deaths) are involved, no fleeing police or other aggravating circumstances, will USUALLY be prosecuted as a summary offence and NOT result in imprisonment that will trigger the serious criminality provisions of Section 36(1) IRPA.
And, in turn, that said, make no mistake: driving while impaired is serious and has serious risks. Even when an accident is not the fault of an impaired driver, if there are injuries let alone death the consequences can be severe. And it is always possible that even the most run-of-the-mill driving while impaired offence might be prosecuted by indictment, and that would make a conviction meet the serious criminality definition even if there is NO jail time.
nanni_doc
Star Member
- Jun 4, 2014
- 42
- Category........
- Visa Office......
- warsawa
- NOC Code......
- 3112
- Job Offer........
- Pre-Assessed..
- App. Filed.......
- 15 December 2014
- Doc's Request.
- 13 May 2015
- IELTS Request
- submitted with application
- File Transfer...
- dont know
- Med's Request
- 14 May 2015
- Med's Done....
- 15 May 2015
- Interview........
- Third Line Update - 28 May 2015, DM/FLU - 25 June 2015
- Passport Req..
- 7th July 2015; passports submitted: 7July 2015; Passports received back: 16 July 2015
- VISA ISSUED...
- 26 june 2015
- LANDED..........
- Hopefully in November
Everyone is keyboard lion these days lol
But seriously calling what it is. Getting a DUI is if not dumb irresponsible. If they get a good lawyer its highly unlikely they will get deported. But you have to be a dumbass to ruin it for the rest.