Hi there. My husband is currently on probation for a traffic related offense. He is on a conditional discharge so there is no conviction though he had to plead guilty to receive the discharge. Does he have to wait until the probation period is over in order to apply for Citizenship? It's not much of an issue now as we are still waiting for his PR to come out, but once it has we fit all the other eligibility requirements so it'd be great to get it going as soon as possible. Any info would be great. The website says during a conditional discharge his time in Canada will still be counted, but doesn't specify whether the parole means he can't apply. The parole would long be over by the time CIC processed his application.
Conditional Discharge Probation: Are we still eligible to apply?
- Thread starter Mela
- Start date
Mela,
In the website where you read "If you were on probation due to a conditional discharge, that time may be counted toward the time you have lived in Canada. For details, contact the Call Centre." on the same page it says:
Criminal history (prohibitions)
You cannot become a citizen if you:
have been convicted of an indictable (criminal) offence or an offence under the Citizenship Act in the three years before you apply,
are currently charged with an offence under the Citizenship Act,
are in prison, on parole or on probation,
are under a removal order (Canadian officials have ordered you to leave Canada),
are being investigated for, are charged with, or have been convicted of a war crime or a crime against humanity, or
have had your Canadian citizenship taken away in the past five years.
If you are on probation or are charged with a crime and waiting for a trial, you should wait until after the probation is done or your trial is over to apply to become a citizen.
Time in prison or on parole does not count as time you have lived in Canada. Time on probation also does not count if you were convicted of a crime.
If you were on probation due to a conditional discharge, that time may be counted toward the time you have lived in Canada. For details, contact the Call Centre.
In my opinion this means that he will only be eligible to apply once his probation is over and he will also need to include the copies of court discharge papers (which he can get from the court where his case was heard) with his application.
For more details you should call the CIC call center with your husbands case specifics, which will give you a more informed answer.
wishing you the best fro overcoming your predicament.
In the website where you read "If you were on probation due to a conditional discharge, that time may be counted toward the time you have lived in Canada. For details, contact the Call Centre." on the same page it says:
Criminal history (prohibitions)
You cannot become a citizen if you:
have been convicted of an indictable (criminal) offence or an offence under the Citizenship Act in the three years before you apply,
are currently charged with an offence under the Citizenship Act,
are in prison, on parole or on probation,
are under a removal order (Canadian officials have ordered you to leave Canada),
are being investigated for, are charged with, or have been convicted of a war crime or a crime against humanity, or
have had your Canadian citizenship taken away in the past five years.
If you are on probation or are charged with a crime and waiting for a trial, you should wait until after the probation is done or your trial is over to apply to become a citizen.
Time in prison or on parole does not count as time you have lived in Canada. Time on probation also does not count if you were convicted of a crime.
If you were on probation due to a conditional discharge, that time may be counted toward the time you have lived in Canada. For details, contact the Call Centre.
In my opinion this means that he will only be eligible to apply once his probation is over and he will also need to include the copies of court discharge papers (which he can get from the court where his case was heard) with his application.
For more details you should call the CIC call center with your husbands case specifics, which will give you a more informed answer.
wishing you the best fro overcoming your predicament.
Conditional Discharge and oath:
Guys,
I have a quick question. If a person was in conditional discharge (Not probabtion) with probation order in 2009 , can he still attend the oath?
It asks in the oath letter, have u been in probation in last 6 years?
Help appreciated
N
Guys,
I have a quick question. If a person was in conditional discharge (Not probabtion) with probation order in 2009 , can he still attend the oath?
It asks in the oath letter, have u been in probation in last 6 years?
Help appreciated
N
Re: Conditional Discharge and oath:
Read the prohibitions carefully and be sure to truthfully indicate whether or not any apply, and to truthfully answer any questions otherwise.
My best guess is that there is no problem. Once there is a complete discharge pursuant to a conditional discharge, my understanding is that is as if it never happened. But that does not necessarily cover how an applicant should respond to questions. Read the letter and instructions carefully and try to answer them as best you can, as truthfully as you can.
Other participants here have indicated their oath letter only asked the applicant to sign a confirmation that no prohibitions applied . . . but if the letter specifically asks questions, like have you been on probation in the last six years? the question must be answered truthfully even if it does not constitute a prohibition and in the long run is not a problem.
As of June 11, the scope of prohibitions expanded (part of the SCCA which became law in June 2014 but this part did not take effect until June 11, 2015). The expanded prohibitions apply to all applicants, regardless of the date they applied.omnisap said:
Read the prohibitions carefully and be sure to truthfully indicate whether or not any apply, and to truthfully answer any questions otherwise.
My best guess is that there is no problem. Once there is a complete discharge pursuant to a conditional discharge, my understanding is that is as if it never happened. But that does not necessarily cover how an applicant should respond to questions. Read the letter and instructions carefully and try to answer them as best you can, as truthfully as you can.
Other participants here have indicated their oath letter only asked the applicant to sign a confirmation that no prohibitions applied . . . but if the letter specifically asks questions, like have you been on probation in the last six years? the question must be answered truthfully even if it does not constitute a prohibition and in the long run is not a problem.
Dpenna,
We talke din other forum too. It is not a question...its a set of instructions which are under prohibitions under citizenship act..in that the question is
Are you now or have been in last 6 years
1. on probation?
2. On parole?
3.An inmate of penitary, jail, reformatory, or prison?
The question use to be Are you now or have been in last 4 years...thats the confusng part...
N
We talke din other forum too. It is not a question...its a set of instructions which are under prohibitions under citizenship act..in that the question is
Are you now or have been in last 6 years
1. on probation?
2. On parole?
3.An inmate of penitary, jail, reformatory, or prison?
The question use to be Are you now or have been in last 4 years...thats the confusng part...
N
As previously noted, my best GUESS is there is no problem for an applicant's whose only scrape with the criminal law resulted in a conditional discharge nearly six years ago, where the charge was actually discharged (that is, the terms of the conditional discharge were met), and probably no need to disclose this now to CIC even though the new law has expanded the scope of the prohibitions.omnisap said:
I can further explain and clarify my reasoning. But I am NO expert, and I am not qualified to give any specific advice, and absolutely not qualified to give a legal opinion . . . I can only explain my understanding and the information that is based on, BUT you must still exercise your own best, independent judgment in determining the appropriate action to take.
Some explanation and clarification:
According to CIC's Program Deliver Instruction, so long as the terms of the conditional discharge were met, and the matter has been formally discharged, it has no effect under either section 21 or section 22 in the Citizenship Act. My understanding is that this is because the discharge itself makes it as if the offence did not occur. Including any "probation" part of the terms for the discharge (as in the probation did not occur). Again, this does not happen until the terms of the conditional discharge are fully met, but once the discharge is indeed final, my understanding is that it is as if there was no offence, no probation.
My sense, my understanding (but again, I am NO expert and I am not entirely certain), is that once the matter is fully dischaged, the affected person can respond "no" to a question like were you on probation?
For anyone in this situation, however, it may be prudent to consult with an immigration and citizenship attorney, or perhaps a local community organization that provides services for immigrants and refugees could more definitively confirm this. The CIC help centre might answer this but I have the suspicion they will give what might be an overly cautious or conservative answer and say that this probation must also be disclosed even if that is not really correct.
Here is what the applicable Program Deliver Instruction states:
Conditional discharge
A person who is the subject of a conditional discharge in combination with a period of probation may count that as residence/physical presence if all the conditions of the order have been satisfied. However, if the conditions of the order have not been satisfied (i.e., the applicant is still on probation or probation was not completed successfully), the period of probation cannot be counted as residence/physical presence.
That said, I have not seen a copy of the letter which is currently sent to those scheduled for the oath (mine was well over a year ago). I do not know how the contents of the letter are organized or what the contents are in particular. I am not familiar with the precise contents or organization of the form which applicants sign before the oath. You need to respond to any questions truthfully according to your best understanding of the question and answer.
As I said, others have indicated that the oath letter lists the new version of the prohibitions and the form requires the applicant to confirm he or she understands the prohibitions and is not subject to any of the prohibitions. For this, if the applicant is confident about his or her understanding of the prohibitions, and that no prohibitions apply to him or her, the applicant can make a judgment that no, there are no prohibitions, and affirm this.
But that may or may not be how your oath letter or form is arranged. You must respond to your letter, or form, and the instructions, based on what those require, based on what is specifically included in what was sent TO YOU.
For example, the form described by others is different from the Prohibitions item in the application, which also requires the applicant to affirm he or she understands the prohibitions and none apply, but it also requires the applicant to provide specific responses to individual questions and for any "yes" response, to provide details. Thus the application asks for information beyond the scope of what is a Prohibition.
Thus: It may help to clarify things if I distinguish how CIC approaches requesting information from applicants regarding prohibitions, which begins with the Prohibitions Item in the Application.
Regarding Prohibitions Item in Application:
The question regarding prohibitions in the application, Item 8 in the current application, covers a range of information that is broader than the prohibitions themselves, and it covers both sections 21 and 22 in the Citizenship Act (not just the prohibitions as specified in section 22). This has been true for many years (at the least). Thus, in responding to the questions posed in the application, the applicant does not answer those questions based on whether the applicant has a prohibition per se, but based on what is the accurate answer to the particular question . . . regardless if the applicant believes there is an applicable prohibition or not.
Thus, for some of the questions, a "yes" check does not necessarily mean there is an applicable prohibition. That is, a "yes" check may be required even if there is no applicable prohibition. The applicant provides details about why "yes" was checked and CIC determines what that means, what effect that has . . . including whether or not there is a prohibition.
One of the things that has changed relative to the application prohibitions item is, as you have noted, that the item asking about probation, parole, or incarceration, now specifies a range of 6 years rather than 4. The primary use of this by CIC is relative to assessing presence under the presence requirements which took effect for all applications made after June 11, 2015, since time on probation, parole, or while incarcerated, will not count toward time present in Canada. (This is section 21 of the Citizenship Act.)
Additionally, a person currently on probation or parole is prohibited. (This is section 22(1)(a) of the Citizenship Act.)
But of course that is NOT the only use for this information. CIC also uses all the responses to this item in the application to help identify if there is reason to conduct further inquiry or investigation into the background of the applicant. Thus, again, the applicant must truthfully answer the questions as posed, not based on second-guessing what the impact of the answer will be, not based on whether the applicant believes it constitutes a prohibition or not.
Nonetheless, the application also requires the applicant to affirm the applicant has read the prohibitions and understands them, leading to this:
What the Prohibtions are:
Technically the prohibitions are specified in section 22 of the Citizenship Act.
In general terms, however, the prohibitions based on criminal charges are summarized in the CIC guide for determining one's eligibility for citizenship, in a subpart titled "Prohibitions" and which states:
"Prohibitions
If you have committed a crime in or outside Canada you may not be eligible to become a Canadian citizen for a period of time. For example if you:
-- are in prison, on parole or on probation in Canada, or are serving a sentence outside Canada,
-- have been convicted of an indictable offence in Canada or an offence outside Canada in the four years before applying for citizenship, or
-- are charged with, on trial for, or involved in an appeal of an indictable offence in Canada, or an offence outside Canada."
If none of the above apply to you, you are not prohibited due to criminal charges. (Note, and even there is an offence outside Canada, it is a prohibition only if it is for acts which would constitute an indictable offence if committed in Canada.)
The guide goes on to also state "Time in prison or on parole does not count as time you have lived in Canada. Time on probation also does not count if you were convicted of a crime."
That "if you were convicted of a crime" part is important. For a conditional discharge, when the discharge is actually final, that means there was NO conviction, so terms of probation that are part of a conditional discharge do not affect the presence or residency calculation once the discharge is final.
Change in law; reference to six years rather than four:
There are two parts to the changes. One affects all applicants regardless of when they applied. That is the prohibitions themselves. They now go back four years rather than three.
The other part technically applies to all applicants but in practical terms has no substantial impact on applicants who applied prior to June 11, 2015: that is, relative to the time which counts toward residency or presence, time on probation does not count -- this has expanded to six years since the range of time encompassed in the calculation has expanded to six years.
That is why the "list" of prohibitions has changed relative to the probation item.
Back to the letter/form you have:
The language, the specific instructions in the form you have, are what matters, what determines what your response must be.
If there is just a place to sign saying you understand the prohibitions (including as they are listed there) and that none apply to you, my sense (as more specifically stated above) is that the final discharge of the matter from 2009 does not have any effect, and thus does not preclude you from signing this affirmation of no prohibitions.
But if the letter/form you have asks something different than that, or more specific than that . . . I am not familiar with the form of the question and can only suggest you truthfully answer the question as best you can or consult with a legal professional if you are uncertain. My sense, as discussed in detail above, is that if the only ever charged offence was finally discharged, pursuant to a conditional discharge, that should not require disclosure . . . wish I was more certain of this but I am not, sorry.
Hi,
In 2015 to Nov 2016 i was charge with family dispute.However, I pledge guilty for 1 x assault charge. On my record shows conditional discharge and probation for 12 month which is completed in November 2017.
My Record will be clear this year in November. Therefore i was wondering if i can apply for Canadian Citizenship?
Thank you
In 2015 to Nov 2016 i was charge with family dispute.However, I pledge guilty for 1 x assault charge. On my record shows conditional discharge and probation for 12 month which is completed in November 2017.
My Record will be clear this year in November. Therefore i was wondering if i can apply for Canadian Citizenship?
Thank you
The precise details can make a difference.
Generally a conditional discharge means the offence is effectively dismissed when the conditions are completed. This is almost like the charge being dismissed right away, or being found NOT guilty, except it does not happen until the terms, the conditions are SUCCESSFULLY completed. Which means not until any term of probation is complete. This means there is NO conviction. No prohibition. And, actually, the time on probation can still count toward days present in Canada.
That is, such a conditional discharge, usually, effectively discharges the offence or offences. Offence dismissed.
BUT I cannot assure you that is what you have. Again, the precise details can make a difference.
If you believe the conditional discharge has resulted in the complete discharge of all your charges, you can apply for citizenship. Reference this case in the explanation box for item 16 (current application form), and give a very short explanation of the disposition of the case. Then IRCC will figure it out. They may ask for more information or documents from the court, but they will almost certainly figure it out correctly.
Otherwise, see a qualified lawyer, or comparable counsel, to review the matter to make sure.
These court dispositions appear to come in a variety of shapes and sizes, so it is NOT likely you can rely on any opinion in a forum like this. (Some here tend to conclude other people's case is the same as theirs, but often that is not the case.)
But again, if you can figure out that this means you have NO convictions, you should be OK. Just be sure to be honest about it all if and when asked questions.
By the way, if you reference and explain this in the application, you do not need to go into any details about the incident itself. What matters are the formalities: date, specific offences charged and specific disposition in court as to the offences charged.
@dpenabill - My lawyer is insisting that I take a plea for one count of assault, and he will get me a conditional discharge with 18 months of probation. My concerns are as follows:
Thanks
- Will my ongoing PR application be rejected if they receive this decision from me?
- If not, will they be able to pause my application until the 18 months of probation are over?
- Or am I only eligible after 3 years when the conditional discharge is over?
Thanks
I am no expert. I am not a Canadian lawyer, so not a Canadian immigration lawyer, not a Canadian criminal defense lawyer.
I cannot and should not try to second-guess your lawyer. Especially in regards to what YOU SHOULD DO. That is a very personal decision which needs to be based on ALL the relevant considerations in YOUR specific case. Including a lot of details you should only share with a lawyer, and definitely not share in an open source like this.
I can say that for anyone with potential immigration consequences, it is a really good idea to have the input of an immigration lawyer to consider in conjunction with the representation and advice of a criminal defense lawyer. Especially if there is some concern the defense lawyer does not fully understand the potential ramifications for immigration. Of course two lawyers would be more costly than one.
Moreover, I cannot offer you much because I am not well acquainted, NOT at all, with how procedures like a conditional discharge will affect the immigration/admissibility status of non-Canadians. While some of the inadmissibility provisions overlap with Canadians (those who are PRs; the immigration status of Canadians who are citizens are not affected by criminal charges), I do not know much about inadmissibility proceedings for Foreign Nationals. Others, in the part of the forum for FNs seeking status in Canada, may have more information and insight; otherwise you should consult with an immigration lawyer about the collateral consequences UNLESS the lawyer assisting you is sufficiently informed about the impact on immigration status to follow their counsel.
Yeah . . . a lot of words to say I don't know. Sorry.