My boyfriend is a PR in Canada and got charged with DUI & Refusal and still waiting for his court date.
Meanwhile he applied for his Citizenship and sent his police record with his documents and it’s on process.
Is there any chance that he gets his citizenship before his final court?
How can IRCC notify that someone has been charged?
What’s the out come if IRCC notify that he had charged when he applied?
Can he withdraw his file without any explanation?
thank you
MAIN THING: Not only is the citizenship application very much in jeopardy (indeed, it might be a good idea to withdraw the application; see further observations below), this individual's PR status itself could be at risk. A conviction for driving a motor vehicle while impaired meets the definition of "
serious criminality" and thus can be grounds for determining they are inadmissible, which if upheld on appeal would terminate their PR status and subject them to deportation.
THUS, the prudent action to take SOON is to obtain the assistance of qualified legal counsel, and in addition to a competent criminal defense lawyer it may be a good idea obtain a paid-for, in-depth consultation with an experienced immigration lawyer.
While it is not clear which particular "
Refusal" offence is charged, likewise if the offence charged is that prescribed by Section 320.15 in the Criminal Code; that is, this too is a serious offence for which a conviction meets the definition of serious criminality.
Part of the problem dealing with these cases is that generally many consider a first and only offence to be relatively minor; made a mistake, dealt with the penalties, lesson learned. Most such charges are prosecuted as a summary offence, and no jail imposed for a first offence. So it is easy to underestimate the seriousness of these charges, to overlook that for a PR such charges are considered an indictable offence EVEN if prosecuted as a summary offence, thus constituting both a prohibition under the Citizenship Act and if convicted, serious criminality.
Make no mistake, in Canadian law these offences are actually considered to be very serious, even if in the criminal law first offences are generally treated more like a minor offence (absent aggravating factors). Those convicted could be imprisoned for up to ten years. While any jail time is unusual for a first offence, and imprisonment for a lengthy period of years is rare, and any at all lengthy jail time is not at all likely absent an egregious case and significant criminal history, the potential ten year sentence nonetheless illustrates just how serious this offence is considered in Canada.
It is the fact that these offences could be prosecuted by indictment, for which the maximum punishment is up to ten years imprisonment, that makes the difference for both Foreign Nationals and Permanent Residents. So, for PRs, at least those who want to keep status to stay in Canada, so need to avoid being deemed inadmissible for serious criminality, such charges demand a more dedicated, serious response.
This is lawyer-up time.
Observation: Applying for citizenship in this situation was a bad idea. A PR with a citizenship application pending is
REQUIRED to notify IRCC they have been charged with a criminal offence, and a failure to do so would be a totally separate basis for denying the application on the grounds of misrepresentation (by omission), resulting in a separate prohibition for five years. It is highly likely (nearly for sure) that IRCC will discover the charges if the applicant does not properly notify IRCC of them (given the scope and depth of background screening for criminality). If the applicant does not properly notify IRCC of them and somehow gets citizenship, their citizenship will FOREVER be at risk of revocation for misrepresentation.
Explanation: Driving a motor vehicle while impaired is what many call a "
hybrid" offence, meaning it can be prosecuted either by indictment or as a summary offence; even if prosecuted as a summary offence, these crimes are considered an indictable offence for purposes of both inadmissibility under Canadian immigration law and prohibitions under Canadian citizenship law. A PR is prohibited from being granted citizenship while such a charge is pending, and if convicted will be prohibited from being granted citizenship for four years from the date of the conviction. As already noted, since the maximum possible penalty is ten years imprisonment, a conviction constitutes serious criminality, EVEN if the case was disposed of as a summary offence and NO jail at all imposed.
Speculative Observations (considering withdrawing the citizenship application)
:
This is a bit of a stretch beyond known information. BEST to talk to a LAWYER about this.
Given the absence of anecdotal reporting and few officially published cases in which PRs are subject to inadmissibility proceedings for isolated DUI-related offences, it seems that it is at most unusual for inadmissibility proceedings to be brought against PRs based on a single DUI incident. There is NO obligation to inform IRCC of such charges UNLESS the PR is applying for citizenship. So, UNLESS the charges are brought to IRCC's attention (such as attendant background criminality screening for citizenship applicants), it appears that a PR might be able to avoid inadmissibility proceedings by not triggering any criminality inquiries. So, it might be prudent to WAIT until the PR can obtain rehabilitation status, or WAIT at least FOUR years after the disposition of the charges, to apply for citizenship. Note that once four years have passed, from date of final disposition not the date of the offence, there will be no obligation to inform IRCC of the charges attendant an application for citizenship; that is, once outside the four year time frame for prohibitions based on indictable offences.
I cannot say with any certainty, but it seems to me that with such charges pending it might be worthwhile withdrawing the citizenship application, and thereby avoid having to notify IRCC of the charges, and reduce the risk that IRCC or CBSA would commence inadmissibility proceedings. I am not qualified to offer advice, but I would suggest this is something it is probably worth discussing with an immigration lawyer.
And, obviously, stay sober, take care, and hopefully they can navigate your way through this, lesson learned without suffering too severe consequences.
