CC 266 - Assault/Domestic violence case after citizenship applied.

[best_67]

Hi Everyone.

I applied for my citizenship application in Sep 2020. I and x-spouse separated nov 2020. She made allegation that I push her. We both called 911 on our separation day. but she made the allegation for pushing her. which i never did. but I was charged by assault 266CC. Case is still open and my trial is in December. So my x-spouse didnot want me to citizen because she sponsorsed in Canada and now our marriage ended. So my citizenship test was done. Today I got the letter from IRCC that they will not processing my application becuase I was charged by domestic assault, They need the letter of explaination and wants court detail for my case which is

The document(s) must indicate the following information:
 Type of offence: summary or indictable.
 Court decision: conviction, discharge, or other (e.g. Not Criminally Responsible).
 Sentence imposed: probation, fine, jail term, etc.
 A criminal docket is not an acceptable document.
 If you received a conditional discharge, you must provide confirmation of this fact and
the terms of the discharge, i.e. length of probation.
 If the case is still pending and the charge is Crown elect (i.e., the offence is a hybrid
offence), we must know if the Crown has made a decision yet on how the case will
proceed (i.e. summarily or by indictment). This information may be on the Court
Information Sheet, or you may also have to send us your Charge Screening Form.
 If the charge has been stayed, you must obtain documentation from the court indicating
that the charge was summary, or confirmation from the Crown that the charge will not be
re-activated.
 If you were acquitted, you must provide confirmation of this fact.

I am not sure what to do. Please help me

Thanks

 

[Das67]

Go get a lawyer !

 

[BadGamer6]

Go get a lawyer !

I agree. Asking here wouldn't help because no one really is a professional but fellow applicants. Get a lawyer involved in this case please.

 

[dpenabill]

I absolutely concur in the admonitions to hire a lawyer. Soon As Possible.

But you may want to seriously consider TWO lawyers. A lawyer experienced in practicing criminal law. And an experienced immigration lawyer. Of course obtaining the assistance of a second lawyer will require coordination with the first one. And you probably need to do some serious homework and make a concerted effort to obtain the assistance of a GOOD lawyer, not just any lawyer. I will elaborate below.

And you must timely respond to the IRCC request . . . making sure to follow all their instructions. You will need to obtain and submit records from the court detailing the information as requested. Time is probably of the essence.

As @BadGamer6 observed, no one here can be relied on to provide information which will guide you through how to approach and handle this situation now.

But I will offer some additional observations, largely to help you get started and to grasp the scope of things PENDING getting help from a lawyer -- once you have obtained the assistance of a lawyer, go with the lawyer's advice and not what I or anyone else here says.

UP FRONT; How Much Risk Is At Stake? BIG FACTOR: Case Proceeding as Summary or Indictable?

Do you know if the prosecution (the Crown attorney) has made a formal election regarding whether to proceed to prosecute the case as a summary offence or an indictable offence? This is critical.

Section 266 in the Canadian Criminal Code (should link) is what is called a "hybrid" offence, meaning it can be prosecuted as either a summary offence or an indictable offence.

If SUMMARY: If you know FOR SURE that the prosecution has made an election to proceed on the basis of a SUMMARY offence, you can exhale a big, big sigh of relief. As the respective item says, in the list of information that the IRCC requests, this may may be on the Court Information Sheet, or you may need to refer to your Charge Screening Form. If it is FOR SURE (and I really mean FOR SURE) that the case is being prosecuted as a summary offence, it will have NO direct impact on your eligibility for citizenship; a summary offence does not constitute a prohibition. Still go to a lawyer and follow the lawyer's advice, but in the meantime you can relax in terms of how this will affect you (not so relaxed as to delay getting a lawyer, but feeling fairly relieved along the way).

If Indictable: If you know or believe that the prosecution has made an election to proceed on the basis of an indictable offence, get a Criminal Defense lawyer ASAP. Make no mistake, in this situation you need a lawyer as soon as you can get one. Your account of the situation aside, this would signal the prosecution considers this a SERIOUS crime. In addition to potentially serious penalties (including possible imprisonment), technically this would mean you are currently prohibited from a grant of citizenship (even if ultimately you are innocent) since a pending charge for an indictable offence constitutes a prohibition, this is prescribed by Section 22(1)(b) in the Citizenship Act (should link). I am not familiar with whether or not IRCC currently suspends processing citizenship applications in this situation, waiting for a definitive outcome in the criminal proceedings, or proceeds to deny the application; but just being charged with an indictable offence is grounds to deny the application (again, regardless of the ultimate outcome later, even if you were found to be not guilty).

If No Formal Election between Summary and Indictable: At this stage it is likely an election has been made, one way or the other, as the matter has been scheduled for trial. If you are not sure which way this is going, or the Court's records do not clearly indicate whether the case is proceeding as Summary or Indictable, this is one among many reasons for getting a lawyer involved ASAP. As my observations above should illuminate, this distinction is HUGE.


Some Further Observations:

There are, potentially, some additional tangents in a situation like this that can complicate things considerably. Which is why you may need both a criminal defense lawyer AND an immigration lawyer. If you apprehend the case might proceed on a charge for an Indictable offence, you for sure need an experienced criminal defense lawyer, and it would be prudent to at least arrange for you or that lawyer to consult with a good immigration lawyer. If you are very confident the case will proceed as a Summary offence prosecution, you may be comfortable with just an immigration lawyer.

Note: your account of the facts in the criminal case are of NO import to IRCC. How this is handled and its outcome in the criminal court will determine the impact on your citizenship application. Thus, for example, your account of the X's motive to fabricate or exaggerate the alleged assault, means nothing to IRCC; that would be part of the defence in the criminal case, and for that you really, really need to rely on the lawyer's guidance.

Potentially Compromised Credibility:

I offer these further observations with caution, with the caveat again that you should obtain the assistance of qualified legal counsel and rely on that. And with the caution that this is just one of the potentially problematic tangents, albeit one of the more obvious ones.

You do not say whether or not you proactively notified IRCC that you had been charged with a criminal offence, or that during the test event you disclosed the charge. My guess is you did not. If you did, you can ignore this tangent. If you failed to notify IRCC, or otherwise disclose this charge during the test event, that would not be unusual . . . but it is potentially problematic.

In particular, despite the clear legally mandated obligation to have notified IRCC of this, and the applicant's affirmation, when making the application for citizenship, that they will notify IRCC of a change in the information (which of course includes the information in regards to prohibitions), despite that, it is all too common for applicants to FAIL to notify or disclose such charges without being asked directly. Which is technically MISREPRESENTATION by omission. Itself a crime, although rarely charged. Itself a stand alone ground for denying the citizenship application, although this too is at least uncommon so far as anecdotal reporting reveal. BUT obviously it has an impact on how IRCC official's perceive the applicant's credibility. Even if IRCC does not make this an explicit issue, compromised credibility tends to hurt in ways that can make the subsequent processing more difficult.

MOSTLY GET LAWYERED-UP . . . SOON, VERY SOON!

Hi Everyone.

I applied for my citizenship application in Sep 2020. I and x-spouse separated nov 2020. She made allegation that I push her. We both called 911 on our separation day. but she made the allegation for pushing her. which i never did. but I was charged by assault 266CC. Case is still open and my trial is in December. So my x-spouse didnot want me to citizen because she sponsorsed in Canada and now our marriage ended. So my citizenship test was done. Today I got the letter from IRCC that they will not processing my application becuase I was charged by domestic assault, They need the letter of explaination and wants court detail for my case which is

The document(s) must indicate the following information:
 Type of offence: summary or indictable.
 Court decision: conviction, discharge, or other (e.g. Not Criminally Responsible).
 Sentence imposed: probation, fine, jail term, etc.
 A criminal docket is not an acceptable document.
 If you received a conditional discharge, you must provide confirmation of this fact and
the terms of the discharge, i.e. length of probation.
 If the case is still pending and the charge is Crown elect (i.e., the offence is a hybrid
offence), we must know if the Crown has made a decision yet on how the case will
proceed (i.e. summarily or by indictment). This information may be on the Court
Information Sheet, or you may also have to send us your Charge Screening Form.
 If the charge has been stayed, you must obtain documentation from the court indicating
that the charge was summary, or confirmation from the Crown that the charge will not be
re-activated.
 If you were acquitted, you must provide confirmation of this fact.

I am not sure what to do. Please help me

Thanks

 

[Mjkab]

hi, I have the same situation. I am a permanent resident though.
Could you please help me by giving me more info about your situation? thank you.

 

[Divya15]

I am looking for expert advise on this matter.
We have mailed our citizen application in sep 2021, AOR in Dec . But in Oct 2021 , We had a heated argument ( Husband and Wife) and in the moment of heat i have called cops. They have taken my statement and my husband’s statement. My husband is charged assault cc 266. He is discharged on conditions . We dont have any trial date yet . So far his background check , finger print request , Citizen test all are completed but still Probation is pending . Do you think, his application will be refused ?

 

[Muhammadpk]

I am looking for expert advise on this matter.
We have mailed our citizen application in sep 2021, AOR in Dec . But in Oct 2021 , We had a heated argument ( Husband and Wife) and in the moment of heat i have called cops. They have taken my statement and my husband’s statement. My husband is charged assault cc 266. He is discharged on conditions . We dont have any trial date yet . So far his background check , finger print request , Citizen test all are completed but still Probation is pending . Do you think, his application will be refused ?

Hello
I am same stuation but my first hearing is 5june so plz o need adivse what happen first hearing

 

[CoorsHeavy]

Hi Everyone.

I applied for my citizenship application in Sep 2020. I and x-spouse separated nov 2020. She made allegation that I push her. We both called 911 on our separation day. but she made the allegation for pushing her. which i never did. but I was charged by assault 266CC. Case is still open and my trial is in December. So my x-spouse didnot want me to citizen because she sponsorsed in Canada and now our marriage ended. So my citizenship test was done. Today I got the letter from IRCC that they will not processing my application becuase I was charged by domestic assault, They need the letter of explaination and wants court detail for my case which is

The document(s) must indicate the following information:
 Type of offence: summary or indictable.
 Court decision: conviction, discharge, or other (e.g. Not Criminally Responsible).
 Sentence imposed: probation, fine, jail term, etc.
 A criminal docket is not an acceptable document.
 If you received a conditional discharge, you must provide confirmation of this fact and
the terms of the discharge, i.e. length of probation.
 If the case is still pending and the charge is Crown elect (i.e., the offence is a hybrid
offence), we must know if the Crown has made a decision yet on how the case will
proceed (i.e. summarily or by indictment). This information may be on the Court
Information Sheet, or you may also have to send us your Charge Screening Form.
 If the charge has been stayed, you must obtain documentation from the court indicating
that the charge was summary, or confirmation from the Crown that the charge will not be
re-activated.
 If you were acquitted, you must provide confirmation of this fact.

I am not sure what to do. Please help me

Thanks

Get a lawyer , and professional advice !!! No comments

 

[ldn123]

Hello
I am same stuation but my first hearing is 5june so plz o need adivse what happen first hearing

hi, i sent you a message. let me know if you wnt to talk

 

[yeasir1987]

I absolutely concur in the admonitions to hire a lawyer. Soon As Possible.

But you may want to seriously consider TWO lawyers. A lawyer experienced in practicing criminal law. And an experienced immigration lawyer. Of course obtaining the assistance of a second lawyer will require coordination with the first one. And you probably need to do some serious homework and make a concerted effort to obtain the assistance of a GOOD lawyer, not just any lawyer. I will elaborate below.

And you must timely respond to the IRCC request . . . making sure to follow all their instructions. You will need to obtain and submit records from the court detailing the information as requested. Time is probably of the essence.

As @BadGamer6 observed, no one here can be relied on to provide information which will guide you through how to approach and handle this situation now.

But I will offer some additional observations, largely to help you get started and to grasp the scope of things PENDING getting help from a lawyer -- once you have obtained the assistance of a lawyer, go with the lawyer's advice and not what I or anyone else here says.

UP FRONT; How Much Risk Is At Stake? BIG FACTOR: Case Proceeding as Summary or Indictable?

Do you know if the prosecution (the Crown attorney) has made a formal election regarding whether to proceed to prosecute the case as a summary offence or an indictable offence? This is critical.

Section 266 in the Canadian Criminal Code (should link) is what is called a "hybrid" offence, meaning it can be prosecuted as either a summary offence or an indictable offence.

If SUMMARY: If you know FOR SURE that the prosecution has made an election to proceed on the basis of a SUMMARY offence, you can exhale a big, big sigh of relief. As the respective item says, in the list of information that the IRCC requests, this may may be on the Court Information Sheet, or you may need to refer to your Charge Screening Form. If it is FOR SURE (and I really mean FOR SURE) that the case is being prosecuted as a summary offence, it will have NO direct impact on your eligibility for citizenship; a summary offence does not constitute a prohibition. Still go to a lawyer and follow the lawyer's advice, but in the meantime you can relax in terms of how this will affect you (not so relaxed as to delay getting a lawyer, but feeling fairly relieved along the way).

If Indictable: If you know or believe that the prosecution has made an election to proceed on the basis of an indictable offence, get a Criminal Defense lawyer ASAP. Make no mistake, in this situation you need a lawyer as soon as you can get one. Your account of the situation aside, this would signal the prosecution considers this a SERIOUS crime. In addition to potentially serious penalties (including possible imprisonment), technically this would mean you are currently prohibited from a grant of citizenship (even if ultimately you are innocent) since a pending charge for an indictable offence constitutes a prohibition, this is prescribed by Section 22(1)(b) in the Citizenship Act (should link). I am not familiar with whether or not IRCC currently suspends processing citizenship applications in this situation, waiting for a definitive outcome in the criminal proceedings, or proceeds to deny the application; but just being charged with an indictable offence is grounds to deny the application (again, regardless of the ultimate outcome later, even if you were found to be not guilty).

If No Formal Election between Summary and Indictable: At this stage it is likely an election has been made, one way or the other, as the matter has been scheduled for trial. If you are not sure which way this is going, or the Court's records do not clearly indicate whether the case is proceeding as Summary or Indictable, this is one among many reasons for getting a lawyer involved ASAP. As my observations above should illuminate, this distinction is HUGE.


Some Further Observations:

There are, potentially, some additional tangents in a situation like this that can complicate things considerably. Which is why you may need both a criminal defense lawyer AND an immigration lawyer. If you apprehend the case might proceed on a charge for an Indictable offence, you for sure need an experienced criminal defense lawyer, and it would be prudent to at least arrange for you or that lawyer to consult with a good immigration lawyer. If you are very confident the case will proceed as a Summary offence prosecution, you may be comfortable with just an immigration lawyer.

Note: your account of the facts in the criminal case are of NO import to IRCC. How this is handled and its outcome in the criminal court will determine the impact on your citizenship application. Thus, for example, your account of the X's motive to fabricate or exaggerate the alleged assault, means nothing to IRCC; that would be part of the defence in the criminal case, and for that you really, really need to rely on the lawyer's guidance.

Potentially Compromised Credibility:

I offer these further observations with caution, with the caveat again that you should obtain the assistance of qualified legal counsel and rely on that. And with the caution that this is just one of the potentially problematic tangents, albeit one of the more obvious ones.

You do not say whether or not you proactively notified IRCC that you had been charged with a criminal offence, or that during the test event you disclosed the charge. My guess is you did not. If you did, you can ignore this tangent. If you failed to notify IRCC, or otherwise disclose this charge during the test event, that would not be unusual . . . but it is potentially problematic.

In particular, despite the clear legally mandated obligation to have notified IRCC of this, and the applicant's affirmation, when making the application for citizenship, that they will notify IRCC of a change in the information (which of course includes the information in regards to prohibitions), despite that, it is all too common for applicants to FAIL to notify or disclose such charges without being asked directly. Which is technically MISREPRESENTATION by omission. Itself a crime, although rarely charged. Itself a stand alone ground for denying the citizenship application, although this too is at least uncommon so far as anecdotal reporting reveal. BUT obviously it has an impact on how IRCC official's perceive the applicant's credibility. Even if IRCC does not make this an explicit issue, compromised credibility tends to hurt in ways that can make the subsequent processing more difficult.

MOSTLY GET LAWYERED-UP . . . SOON, VERY SOON!

Hi, I have a DUI charge prosecuted as a summary offence. I have applied for citizenship two days ago mentioning that I have a summary DUI charge. Will they process my application or will they withhold it till the conviction? A response is much appreciated.

 

[dpenabill]

Hi, I have a DUI charge prosecuted as a summary offence. I have applied for citizenship two days ago mentioning that I have a summary DUI charge. Will they process my application or will they withhold it till the conviction? A response is much appreciated.

As you have read in other conversations, including some lengthy posts by me, the impact of criminal charges on PRs (including those applying for citizenship) is a complex subject, with lots of variables and tangents. As I stated in the post you quote (so I assume you have read it), and this is about as fundamental, as basic as it gets:

I absolutely concur in the admonitions to hire a lawyer. Soon As Possible.​

​

But you may want to seriously consider TWO lawyers. A lawyer experienced in practicing criminal law. And an experienced immigration lawyer. Of course obtaining the assistance of a second lawyer will require coordination with the first one. And you probably need to do some serious homework and make a concerted effort to obtain the assistance of a GOOD lawyer, not just any lawyer.​

Which in effect I also suggested in the other topic where I responded to you, where I will offer further observations since it is probably a better thread (more specific to your situation).

I realize that my comments in this thread, those you quote, are in response to a different criminal charge, and there are indeed some significant differences in the charges, the way they can be and usually are handled in the justice system, which in turn can have an impact on how they might affect a PR generally, and an applicant for citizenship in particular. Cannot emphasize it enough: as simple as it can be, especially for citizens, these things tend to get complicated, and can get real complicated. This is NOT amateur-hour stuff. I suspect I dive as deep into this stuff as anyone else here, and I have spent a lot of time wrangling with PR inadmissibility and citizenship prohibitions for well over a decade now, and I have a background (a lengthy, extensive background) in jurisprudence outside Canada, BUT I am still very much an amateur in regards to these matters . . . and no amount of researching the law and reviewing anecdotal accounts will make up for my total lack of practical experience in dealing with these matters in Canada.

So . . . I do not know . . . I cannot say . . . how a pending DUI charge being prosecuted as a summary offence will affect processing the citizenship application. Obviously IRCC will know about it. Or at least almost certainly will (some criminal charges appear to slip through this or that crack, but that is more and more unusual these days).

There is no provision in the Citizenship Act comparable to Section 36(3)(a) IRPA (immigration law) providing:

. . . an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily​

So, for example, on its face a summary offence DUI conviction in Canada does not constitute a prohibition under the Citizenship Act, and thus does not itself preclude a grant of citizenship. But I do not know what IRCC practices are in regards to pending hybrid criminal charges, which for purposes of immigration law and inadmissibility are considered indictable offences (even when the conviction is for a summary offence).

I plan to post some further observations in the other topic, but I have some errands to attend to for awhile, so that will be later.

 

[yeasir1987]

As you have read in other conversations, including some lengthy posts by me, the impact of criminal charges on PRs (including those applying for citizenship) is a complex subject, with lots of variables and tangents. As I stated in the post you quote (so I assume you have read it), and this is about as fundamental, as basic as it gets:

I absolutely concur in the admonitions to hire a lawyer. Soon As Possible.​

​

But you may want to seriously consider TWO lawyers. A lawyer experienced in practicing criminal law. And an experienced immigration lawyer. Of course obtaining the assistance of a second lawyer will require coordination with the first one. And you probably need to do some serious homework and make a concerted effort to obtain the assistance of a GOOD lawyer, not just any lawyer.​

Which in effect I also suggested in the other topic where I responded to you, where I will offer further observations since it is probably a better thread (more specific to your situation).

I realize that my comments in this thread, those you quote, are in response to a different criminal charge, and there are indeed some significant differences in the charges, the way they can be and usually are handled in the justice system, which in turn can have an impact on how they might affect a PR generally, and an applicant for citizenship in particular. Cannot emphasize it enough: as simple as it can be, especially for citizens, these things tend to get complicated, and can get real complicated. This is NOT amateur-hour stuff. I suspect I dive as deep into this stuff as anyone else here, and I have spent a lot of time wrangling with PR inadmissibility and citizenship prohibitions for well over a decade now, and I have a background (a lengthy, extensive background) in jurisprudence outside Canada, BUT I am still very much an amateur in regards to these matters . . . and no amount of researching the law and reviewing anecdotal accounts will make up for my total lack of practical experience in dealing with these matters in Canada.

So . . . I do not know . . . I cannot say . . . how a pending DUI charge being prosecuted as a summary offence will affect processing the citizenship application. Obviously IRCC will know about it. Or at least almost certainly will (some criminal charges appear to slip through this or that crack, but that is more and more unusual these days).

There is no provision in the Citizenship Act comparable to Section 36(3)(a) IRPA (immigration law) providing:

. . . an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily​

So, for example, on its face a summary offence DUI conviction in Canada does not constitute a prohibition under the Citizenship Act, and thus does not itself preclude a grant of citizenship. But I do not know what IRCC practices are in regards to pending hybrid criminal charges, which for purposes of immigration law and inadmissibility are considered indictable offences (even when the conviction is for a summary offence).

I plan to post some further observations in the other topic, but I have some errands to attend to for awhile, so that will be later.

Hi,

Thanks a lot for your helpful feedback. I have a criminal lawyer right now. I am not sure what an immigration lawyer will do at this stage of the process. Why do you think I should get an immigration lawyer right now? What will he be giving us at this stage of the prosecution? What is even the service that I should be getting from him at this stage as there is no hearing for a removal order or from IRCC/CBSA? A response is much appreciated.