Hello Respected Lawyers/Experienced persons,
I have no previous criminal record, but currently having some charges pending/ongoing (not decided yet). My lawyer said these are Summary Offences.
As a PR my 3 yrs stay in Canada will complete in March 2022. Then can I apply for Canadian Citizenship with the ongoing charges? Need accurate information please; the government website doesn't have any specific information about it.
Thanks
Ok. But even if I am convicted, the charges will be summary offence. So will that matter? Thanks
Foremost: if you have a lawyer, talk to your lawyer. Be aware that lawyers doing criminal defense work are often not well acquainted with immigration or citizenship law. But the lawyer is still a better source than an open forum like this.
I am
NO expert . . . but I can offer some observations:
I am a fan of waiting to apply for citizenship longer than most.
This is mostly about having a margin over the minimum physical presence that is big enough no total stranger bureaucrat will wonder if there is any chance the applicant was not IN Canada enough to easily meet the presence requirement. But in other circumstances it can be about waiting long enough that circumstances which might trigger non-routine processing are resolved enough to at least minimize the nature and extent of non-routine processing. So, for example, while I disagree that a pending summary offence will cause IRCC to put a citizenship application on hold (and in fact that would be contrary to the law governing procedure for citizenship application processing), I agree with the gist of what
@canuck78 says, that details underlying the charge are very important, that "
initial charges may not be [the]
final charge," and this can make a difference in how things go.
Waiting long enough the criminal case reaches a final disposition, so that there is no doubt about the conviction being for a summary offence (or something even lesser), is the SAFE approach . . . that is, waiting longer to apply could mean taking the oath sooner.
That said, be aware that depending on the details in how you were charged, what the specific charges were initially apart from what charges the Crown actually proceeds with, and certain specifics like whether there was an arrest, be aware that any criminal charges increase the likelihood IRCC will ask for finger prints and will also engage in other non-routine processing to verify there are no prohibitions. So there is a significant chance your application will take longer than it does for the median (averages do not mean much at all . . . how long it take to process half plus a bit of the applications is the key indicator of how long most applications take).
Even when there is no prohibition, the more fully resolved a criminal case is when IRCC opens the application and does its first GCMS screening (which includes a name-record search in RCMP and FBI/NCIC criminal databases), the better the odds it will have less negative impact on processing.
Further Observations; Beware Hybrid Offence Prosecuted as a Summary Offence is NOT the SAME as Being Charged with a Summary Offence:
Generally a conviction for a summary offence is NO problem for a PR applying for citizenship. Even if it was a hybrid offence, or even more serious to begin with, a summary offence conviction is NOT a prohibition, not a problem for a citizenship application.
Pending charges are a little different. And, whether the offence charged is defined to be a summary offence in the Criminal Code, or it is an offence that could be prosecuted by indictment but is being prosecuted as a summary offence, makes a difference.
A pending charge for a summary offence is not a problem. No prohibitions are implicated. So, as noted, I disagree that IRCC would put a citizenship application on hold because the applicant has a summary offence case pending.
So, if you are CERTAIN you were charged with an offence defined in the criminal code to be a summary offence and NOT a hybrid offence, NO PROBLEMS, no worries about prohibitions, worst case scenario is a finger print request and some delays for non-routine background scrutiny. Waiting to apply until the criminal case is fully resolved is probably a good idea but not imperative.
A hybrid offence being prosecuted as a summary offence is a more complicated situation. And it is the far more common one.
Note, for example, for a Foreign National and what constitutes inadmissibility, a hybrid offence prosecuted as a summary offence, resulting in a conviction for a summary offence under the Criminal Code, nonetheless renders the FN inadmissible for having been convicted of an indictable offence . . . because the offence itself is defined to be an indictable offence, that is, one that could be prosecuted by indictment.
That is not directly relevant to PR inadmissibility, or prohibitions precluding a grant of citizenship, but it illustrates that how the matter is handled in the criminal case does not control its impact in regards to immigration status.
Problem is many who think they are charged with a summary offence are actually charged with a hybrid offence, an offence that can be prosecuted as either a summary or indictable offence. Many think and refer to this as being charged with or prosecuted for a summary offence.
BUT when the offence itself, as defined in the Criminal Code, is actually a hybrid offence, that is different.
The vast majority of what are defined to be summary offences, NOT hybrid offences, are so minor that few charged get a lawyer and the process typically proceeds to a final outcome in relatively short order. In contrast, the underlying facts in many if not the majority of cases involving charges for a hybrid offence are minor enough they are prosecuted as a summary offence . . . and many refer to this as being charged with a "
summary" offence when, in a manner of speaking, unless and until there is a final disposition it is actually still an indictable offence, just one that is being prosecuted as a summary offence.
I do not know how criminal defense lawyers characterize these cases. I suspect some, perhaps many criminal defense lawyers are prone to reassuring clients they are facing a summary charge when what is really happening is they are charged with a hybrid offence that is being prosecuted as a summary offence. The lawyers are not deceiving the client. For purposes of the criminal law, once the prosecution has elected to proceed with a summary case the defendant is indeed facing a summary offence charge which ordinarily cannot be upgraded to an indictable offence. So, even though the offence is defined as a hybrid offence under the Criminal Code, meaning it is an indictable offence, once it is being prosecuted as a summary offence, for purposes of the criminal law the person is charged with and being prosecuted for a summary offence.
The impact of a still pending hybrid offence, on a citizenship application, is not as clear. Indeed, it appears to vary.
THUS . . . if the charge is a hybrid offence (being prosecuted as a summary offence):
For a PR considering making a citizenship application, while they have a hybrid offence charge still pending, among the things to consider is how to respond to the prohibitions questions in the application, and question 16.3. in particular, which asks the applicant if they are now charged with "
an indictable offence in Canada." Probably not misrepresentation to respond "
no" based on an understanding the case is being prosecuted as a summary offence.
BUT when IRCC opens the application and does a GCMS background screening (which is repeated throughout processing), this includes screening name-records in RCMP and FBI/NCIC criminal record databases, the odds are the charge generates a hit . . . so, for example, if the charge is a simple assault (such as a domestic assault), even if it is being prosecuted as a summary offence, the processing agent sees a charge for what is an indictable offence. Application flagged and likely referred into a non-routine processing stream.
Would it be better to check "
yes" and explain the charge is being prosecuted as a summary offence? My sense is yes
BUT I AM NO EXPERT, so the best I can offer, if the original charge is a hybrid offence or otherwise was indictable, is --
-- wait to apply until after there is a final disposition documenting a conviction for a summary offence (at worst), or
-- consult with an attorney who you are confident understands immigration and citizenship law as well as the criminal law, and follow their advice, or
-- proceed with the application prepared to deal with nonroutine processing, using YOUR BEST JUDGMENT about how to respond to 16.3. in the prohibitions part of the application
