Convicted Alcohol over.80
- Thread starter Bru1290
- Start date
Hi
1. Your problem will not be applying for citizenship, DUI is now considered serious criminality and you could be reported and removed from Canada.
2. If your offence was indictable, you won't be eligible to apply for citizenship for 4 years.
You have been convicted of an indictable offence in Canada or an offence under the Citizenship Act in the last 4 years
In general, a person is not eligible to become a Canadian citizen if they were convicted of an indictable offence in Canada or any offence under the Citizenship Act in the last four years. You may want to wait and check your eligibility to apply for citizenship when four years have passed since your date of conviction. Remember that any time you spent serving a term of imprisonment, on parole, or on probation cannot count towards physical presence for the purposes of becoming a Canadian citizen. This may impact the date you may be eligible to apply for citizenship.
1. Your problem will not be applying for citizenship, DUI is now considered serious criminality and you could be reported and removed from Canada.
2. If your offence was indictable, you won't be eligible to apply for citizenship for 4 years.
You have been convicted of an indictable offence in Canada or an offence under the Citizenship Act in the last 4 years
In general, a person is not eligible to become a Canadian citizen if they were convicted of an indictable offence in Canada or any offence under the Citizenship Act in the last four years. You may want to wait and check your eligibility to apply for citizenship when four years have passed since your date of conviction. Remember that any time you spent serving a term of imprisonment, on parole, or on probation cannot count towards physical presence for the purposes of becoming a Canadian citizen. This may impact the date you may be eligible to apply for citizenship.
The crown dropped the charged of impaired driving which is indictable offence. They just charged me alcohol over.80 which is summary offence.
The crown dropped the charged of impaired driving which is indictable offence. Theyjust charged me alcohol over.80 which is summary offence.
As long as you remain on probation you will be prohibited from citizenship eligibility.
That is still a hybrid offence, meaning IRCC views it as indictable.
https://laws-lois.justice.gc.ca/eng/acts/C-46/page-70.html#docCont
- 320.19 (1) Every person who commits an offence under subsection 320.14(1) or 320.15(1) is guilty of
- (a) an indictable offence and liable to imprisonment for a term of not more than 10 years and to a minimum punishment of,
or
- (b) an offence punishable on summary conviction and liable to a fine of not more than $5,000 or to imprisonment for a term of not more than two years less a day, or to both, and to a minimum punishment of,
- (a) an indictable offence and liable to imprisonment for a term of not more than 10 years and to a minimum punishment of,
So you should be OK.
In particular, if there is a conviction IN Canada for a hybrid offence prosecuted summarily, the conviction itself does NOT constitute a prohibition (contrary to what some have asserted); but the PR may still be subject to a prohibition under subsection 22(1)(a) in the Citizenship Act for as long as the PR is imprisoned or on probation; thus, if there is no incarceration or probation, it does NOT constitute a prohibition for grant citizenship.
In contrast, so long as a charge for a hybrid offence is pending, my understanding is it continues to be "indictable," and therefore until there is a final disposition it will constitute a prohibition (subsection 22(1)(b) in the Citizenship Act).
Some Clarifying Observations:
Some forum participants appear to confuse how hybrid offences are treated under the inadmissibility provisions in IRPA. There is a specific statutory provision in IRPA which prescribes that for purposes of the criminality provisions applicable to PRs and FNs (subsections 36(1) and 36(2) IRPA specifically), "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." See 36(3)(a) IRPA at https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-8.html#h-274694 There is NOT a comparable provision in the Citizenship Act. So, again, as long as the hybrid offence was prosecuted summarily, once there is a conviction AND there is NO imprisonment or probation, there is no prohibition.
Thus, for example, the statement "is still a hybrid offence, meaning IRCC views it as indictable," is true BUT that ONLY applies to what constitutes inadmissibility under IRPA, under subsections 36(1) and 36(2) IRPA in particular (thus it only practically applies to Foreign Nationals (FNs) not PRs).
Which leads to the other misinformation posted above, ". . . DUI is now considered serious criminality and [a convicted PR] could be reported and removed from Canada." This is NOT true. It depends on the actual sentence imposed. If a conviction results in the imposition of a sentence for six months PLUS a day (that is, where "a term of imprisonment of more than six months has been imposed"), that meets the Section 36(1)(a) definition of serious criminality. (There was a period of time during which the Harper government pursued inadmissibility proceedings against PRs based on suspended sentences for MORE than six months, but the Federal Court limited the application to actually imposed sentences.) For the possible sentence to constitute serious criminality the offence must be one which is punishable by 10 years or more, regardless of what term of imprisonment is imposed.
For citizenship prohibitions specified in Section 22 of the Citizenship Act see https://laws-lois.justice.gc.ca/eng/acts/C-29/page-7.html#docCont
The details matter.
I am not familiar enough with Canadian criminal law to begin sorting out how it works in specific cases.
The reason I mentioned that a prohibition continues while the person is on probation (even if the conviction itself for a summarily prosecuted hybrid offence does not constitute a prohibition) is that it is my impression that any of the impaired driving convictions ordinarily result in some period of probation. But you are not the first to report here that there was no probation, so apparently that happens.
These kinds of cases appear to still be rather casually prosecuted in Canada compared to the U.S. and some European countries. Which can lead to confusion. The level of confusion also appears to be sometimes aggravated by less than fully honest descriptions given to clients by lawyers (especially public defender type lawyers), who may be encouraging a plea by the defendant and thus minimizing some of the wrinkles.
BUT all that said, if there is NO probation for sure, and the lawyer says the conviction is for a summary offence, and for example you were never presented with an indictment, the odds are high that it was indeed prosecuted summarily.
Thus, if prosecuted summarily, and there is a final disposition, a conviction, as such, and there is no term of incarceration or probation, that means:
-- it is not a conviction for an "indictable offence" under Section 22(2) in the Citizenship Act, and thus does not constitute a prohibition, EVEN THOUGH
-- the same conviction would be considered an "indictable offence" for purposes of Section 36(1) and 36(2) in IRPA, which would make a Foreign National inadmissible (subject to rehabilitation provisions)
-- the same conviction would be considered an "indictable offence" for purposes of Section 36(1) and 36(2) in IRPA, which would make a Foreign National inadmissible (subject to rehabilitation provisions)
BUT again, what matters, what makes a difference, is what your specific court record shows.
Also Note:
It is very likely there is, nonetheless, a criminal record which will pop up when IRCC processes your Citizenship application. So it may be prudent to disclose the charge and in the explanation box describe the outcome even though it is not a prohibition. Just the initial charge is something which appears to trigger a finger print request and may result in some additional non-routine processing, thus taking a little longer than routinely processed applications. But so long as there is a final disposition (if anything is still pending, WAIT to get all resolved before applying for citizenship), even though it is a conviction for a hybrid offence, and so long as it was actually prosecuted summarily and you are NOT on probation, you should be OK.
Hi! You can check information about charges (summary or indictment) in your first appearance package, or request copies from crown’s office. It’s better to include them with your citizenship application. Also in application indicate that you convicted.
The judge gave me a fine of 1000$ fine and 1 year driving suspension. No probation. I just dont see in my court paper that it is summary conviction. Its my lawyer told me that my case is a summary conviction, so I dont have a problem with the immigration he said. Which I believe him. I dont see why he would lie to me right?
If you have any doubts at all, BEFORE making a citizenship application pay for a CONSULTATION with a competent, reputable IMMIGRATION & CITIZENSHIP lawyer and bring ALL your paperwork.
Sorting out the intersection of criminal cases and immigration and citizenship law is too complicated to rely on comments in a forum like this.
That said . . .
What you describe still appears to be very much consistent with the outcome for an offence prosecuted summarily. And thus looks like the outcome of an offence prosecuted summarily.
BUT criminal cases are more complicated and have more wrinkles than many appreciate, so you should NOT take my word, or probably anyone else's word here, for what this means.
Unfortunately lawyers are rather skilled in the art of telling the truth with key omissions. In minor offence cases it is more about glossing over or minimizing some of the wrinkles than it is about overtly misleading the defendant/client.
One also has to wonder to what extent a lawyer doing this kind of work is acquainted with the particulars of immigration and citizenship. And as my previous posts illustrate, there can be significant differences in immigration related consequences. As I noted, even though prosecuted summarily, for someone in Canada on a work or study permit, the conviction could lead to deportation and inadmissibility for a number of years. I cannot begin to guess what your lawyer knows versus what the lawyer might be comfortable assuring a client based on what the lawyer expects rather than knows.
But still, nothing in what you report suggests that this is a problem for you. Wish I could offer a more confident answer but that really depends on the specifics of your case, and I tend to avoid making definitive assertions even though there may be a rather high probability. Especially for something like this, which it appears can vary from court to court, province to province, even city to city within the same province. Note for example my surprise at there being no probation.
Moreover, there is always a danger of misinterpreting the meaning and interpretation and application of particular statutory provisions, and this is especially the case when there are provisions in separate Acts involved, like interpreting and applying provisions related to the same or similar matters that are in the Criminal Code and IRPA and the Citizenship Act.
Note that in my earlier posts I glossed over an important distinction in regards to IF there is a conviction for an indictable offence arising from one of the driving while impaired provisions: that is an offence punishable by up to ten years imprisonment and that does meet the definition of serious criminality which renders a PR inadmissible (subject to deportation).
This illustrates how many tangled threads are involved. And it also illustrates how complicated it can get sorting through the various threads and where they lead. If, for example, subsection 36(3)(a) IRPA applied directly to criminal code definitions (it does not), it might be argued that even though the conviction was for a summary offence, with maximum imprisonment for two years less a day, the IRPA provision means it should be treated as a conviction for an indictable offence under the Criminal Code (as prescribed in 320.19(1) in the Code), which as I just noted is, in turn, punishable by a maximum term of imprisonment for TEN years, meeting the definition of serious criminality in IRPA. That is not how it works (IRPA does not control what the punishment is for Criminal Code offences), fortunately for many in circumstances similar to yours (but it does illustrate what you were risking).
Which is to emphasize that unraveling all this can get complicated if not convoluted. And this is stuff even decent lawyers can get wrong. Actual experience with how these matters are in fact handled is crucial . . . thus it is important to have a criminal defense lawyer for the criminal case . . . and to consult with an immigration lawyer about the ramifications for immigration and citizenship purposes.
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