First part is for sure. As I have stated and restated:
And even though the conviction is for a SUMMARY OFFENCE, the term of probation affects a PR's path to citizenship in two ways:
-- the PR is PROHIBITED from a grant of citizenship while the PR is on probation, and
-- the period of time a PR is on probation is counted as time ABSENT from Canada
The second part of your post, regarding probation attendant a conditional discharge, is NOT correct, at least not insofar as I can discern (but I am NO expert either). Once the charge is in fact DISCHARGED, the time on probation no longer matters. That is, once the offence is dismissed, that is "discharged," which is what happens when all the conditions have been met including going through the period of probation without any breach of the peace, it is then as if the individual was NOT charged. So, that time on probation still counts toward days in Canada for the presence calculation. BIG, BIG advantage in getting a conditional discharge.
This is explained in FAQs for the Physical Presence Calculator, question 11, where the answer states:
- Time on probation as a result of a conditional discharge may count towards physical presence if the probation was completed successfully (i.e. you were not charged with a breach of probation or a failure to comply during that probation). This time does not have to be declared for the purposes of the physical presence calculator.
The question being wrestled with here is whether or not there was a period of probation imposed in the particular cases discussed here (and if so, for what period of time). And it would be helpful to know if a conviction for driving while impaired typically includes a period of probation (my guess is that it does), and if so, for how long.
That is, we know what the consequences of probation are. We do not know whether probation was imposed.
With the caveat, again, that Justice Mactavish's decision in the Syed Ali Asghar Iqbal Ahmed case IS NOT BINDING and, more significantly, INTERPRETS and APPLIES OLD LAW, NOT THE CURRENT LAW . . . and thus cannot possibly make how the current law is interpreted and applied entirely clear.
What actually makes some aspects of the hybrid offence issue clear is not so much Justice Mactavish's opinion (which is a learned source, yes, and an official source as well, BUT it is not a binding precedent, thus not a definitive determination of how the law is applied EXCEPT as to Mr. Ahmed in particular) BUT rather the provisions of the Interpretation Act which Justice Mactavish cited.
Beyond that I doubt it is worth wandering much further into the weeds than I already did in my previous post except . . .
WHEN HYBRID OFFENCE BECOMES A SUMMARY OFFENCE:
The general principle seems simple enough. Multiple court decisions state this happens when the prosecutor/Crown makes the decision ("elects") to proceed by way of a summary prosecution. To be clear, it is NOT true "
This is only true for Citizenship Act." Actually Justice Mactavish, and at least one other Federal Court justice, are extending Criminal law analysis to provisions in the Citizenship Act. (There are many more cases outside the scope of citizenship which address hybrid cases.)
Once there is a conviction, though, there is no doubt. This is explicitly covered by Section 34.(1)(c) in the Interpretation Act. A conviction for a hybrid offence prosecuted summarily is definitively NOT an indictable offence.
The case decided by Justice Mactavish (Ahmed) involved PENDING charges at the time of the hearing with a Citizenship Judge. Likewise in the Lahai Kamara case, decided by Justice Diner (see
http://canlii.ca/t/gj1d6 ), Kamara had a hybrid offence pending at the time Kamara went to an interview with a Citizenship Judge. The difference in outcome depended on the conclusion, in Ahmed, that at the time of the CJ hearing the prosecution had in fact made an election to proceed summarily, versus that at the time of the CJ hearing for Kamara it was NOT determined, yet, if the prosecution would proceed summarily on the pending charge. So the hybrid offence pending against Kamara constituted an indictable offence, and thus a prohibition, since the prosecution had not yet elected to proceed summarily.
To be clear, the discussion in this topic has, so far, been about CONVICTIONS. And, as noted, if the prosecution proceeded according to summary offence procedures, there is no doubt once there is a conviction, it is NOT an indictable offence.
Sorting out how to establish, for purposes of a hearing or proceeding before IRCC, that the prosecution has elected to proceed by way of a summary procedure for a PENDING hybrid charge, so as to establish it is NOT an indictable offence, is more about the criminal law procedure than I can begin to sort out.
REGARDING INADMISSIBILITY:
Quote: "
For purpose of IRPA’s section 36 (inadmissibility), it is clear that hybrid offences are considered indictable."
IRPA section 36 does not mention hybrid offences. PR inadmissibility does not depend on whether a charge is indictable or not, at least not directly.
But for purposes of operating while impaired charges, whether the offence is actually prosecuted by indictment or as a summary offence, that can make a huge difference. As of December, if a driving while impaired offence is prosecuted by indictment, that makes it punishable by up to ten years. Thus a conviction will meet the serious criminality criteria for PR inadmissibility EVEN IF less than six months jail is imposed. Most first or second DWI offences not involving injury accidents, however, will be prosecuted as summary offences . . . so these will only make a PR inadmissible if there is six months or more actual jail time imposed.
For purposes of determining if a Foreign National is inadmissible on grounds of criminality, the effect of a hybrid offence depends on where the offence occurred and was prosecuted.
If the hybrid offence was committed IN Canada and was prosecuted by summary procedure, that alone does NOT constitute inadmissibility and is NOT a conviction for an indictable offence. (Two or more summary offences, however, will make a FN inadmissible.)
In contrast, if the offence took place outside Canada and its Canadian equivalent is a hybrid offence, IRCC will generally consider it to be an indictable offence for purposes of FN inadmissibility.
