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Criminal offence

heather8899

Newbie
Oct 26, 2021
2
0
Hey guys I’m sure this has been asked a thousand times but I am looking for advice. I unfortunately made a silly mistake a year ago and was convicted of a summary offence that was suspended and I was placed on probation for 12 months which ended Sept 30 2021.
I have been looking into applying for citizenship and I have been told as it was a summary offence I am eligible to apply.

I asked my ex probation officer and she said I was not allowed to apply for 3 years since probation ended.

so here I am, confused and wondering if I am in fact eligible to apply now even with a summary offence or is the probation office correct and I do have to wait for 3 years?

also, I guess while I am here I am wondering will it in fact be a nightmare if I do apply. Dragging up the conviction, could it cause me to lose my PR if they choose to deny my citizenship application?

Please no judgments, I am simply asking for advice.

Thank you
 

rajkamalmohanram

VIP Member
Apr 29, 2015
15,803
5,791
Hey guys I’m sure this has been asked a thousand times but I am looking for advice. I unfortunately made a silly mistake a year ago and was convicted of a summary offence that was suspended and I was placed on probation for 12 months which ended Sept 30 2021.
I have been looking into applying for citizenship and I have been told as it was a summary offence I am eligible to apply.

I asked my ex probation officer and she said I was not allowed to apply for 3 years since probation ended.

so here I am, confused and wondering if I am in fact eligible to apply now even with a summary offence or is the probation office correct and I do have to wait for 3 years?

also, I guess while I am here I am wondering will it in fact be a nightmare if I do apply. Dragging up the conviction, could it cause me to lose my PR if they choose to deny my citizenship application?

Please no judgments, I am simply asking for advice.

Thank you
The forum wouldn't be the best place to get an accurate answer specific to your case. You have to speak to a lawyer. These are legal questions and definitely requires the insight of an experienced lawyer.

There are some threads on the forum that talk about it BUT remember, THIS IS NOT LEGAL ADVISE.

https://www.canadavisa.com/canada-immigration-discussion-board/threads/citizenship-application-with-dui.578453/#post-7171107

https://www.canadavisa.com/canada-immigration-discussion-board/threads/citizenship-application-with-active-peace-bond.490044/post-9353211

https://www.canadavisa.com/canada-immigration-discussion-board/threads/can-a-traffic-arrest-be-basis-for-rejection.615901

https://www.canadavisa.com/canada-immigration-discussion-board/threads/very-important-need-help-and-advice.604735/post-7512967

But, hire a lawyer and get a legal opinion before you do anything else.

Good luck.
 

dpenabill

VIP Member
Apr 2, 2010
6,467
3,218
Hey guys I’m sure this has been asked a thousand times but I am looking for advice. I unfortunately made a silly mistake a year ago and was convicted of a summary offence that was suspended and I was placed on probation for 12 months which ended Sept 30 2021.
I have been looking into applying for citizenship and I have been told as it was a summary offence I am eligible to apply.

I asked my ex probation officer and she said I was not allowed to apply for 3 years since probation ended.

so here I am, confused and wondering if I am in fact eligible to apply now even with a summary offence or is the probation office correct and I do have to wait for 3 years?

also, I guess while I am here I am wondering will it in fact be a nightmare if I do apply. Dragging up the conviction, could it cause me to lose my PR if they choose to deny my citizenship application?

Please no judgments, I am simply asking for advice.

Thank you
I am NO expert but I can offer some information . . .

A conviction for a summary offence does NOT constitute a prohibition. No special expertise necessary, this part is clear. Prohibitions are specified in Section 22 in the Citizenship Act which can be seen here: https://laws-lois.justice.gc.ca/eng/acts/C-29/page-7.html#docCont

As long as a PR is on probation, that is a prohibition. This is prescribed by Section 22(1)(a)(i) in the Citizenship Act. Part of the section I just cited and linked.

If a PR has a prohibition (again see Section 22), they are NOT eligible for citizenship.

Since your probation is terminated, that no longer constitutes a prohibition. That no longer precludes you from being eligible for citizenship.

However, you must still meet all the other requirements, including the actual physical presence requirement. Even though you were IN Canada while on probation, those days DO NOT COUNT as days in Canada for the calculation of actual physical presence. This is prescribed by Section 21 in the Citizenship Act, which can be read here (section 21 at the bottom of the page): https://laws-lois.justice.gc.ca/eng/acts/C-29/page-6.html#docCont

That section states: "Despite anything in this Act, no period may be counted as a period of physical presence for the purpose of this Act during which a person, under any enactment in force in Canada, has been under a probation order."

How this affects a particular PR's calculation of physical presence depends on the details. If you were on probation for a year, it is like you were outside Canada for that year.

Depending on the particular circumstances of the criminal case, there may be recourse in the nature of having the conviction set aside or sealed or . . . I do not know much about this part other than knowing that Canada has some fairly generous, lenient provisions which can in effect remove a criminal record in some cases. If this is possible for you (I have no idea if it is), that would be something to discuss with a criminal defense lawyer. If something like that is available for you, whether that then would in effect mean you were not legally under a probation order, is something you would need to talk to an immigration lawyer about, one experienced in citizenship. Most lawyers are very often NOT well versed in criminal law and procedure UNLESS that is their area of practice. Likewise, most lawyers are fairly clueless about immigration related matters unless their area of practice includes immigration. (Like a podiatrist cannot help much with a patient's liver disease.)

The probability is you will just have to wait long enough to meet the physical presence requirements without counting the year of probation. BE SURE to CAREFULLY READ and FOLLOW INSTRUCTIONS in the application form, the guide, and for the actual physical presence calculator. They will guide you through how to respond. I have not revisited the physical presence calculator lately so I cannot say for sure how the applicant enters information about time on probation, but I think it is straightforward enough if you carefully read and follow the prompts it will make sense and you will figure out how to do it. Many prospective applicants need to work through multiple rough drafts of the physical presence to get it right. Some patience and care in following the instructions will get most through.

Another caution: be certain the conviction is for a summary offence. There seems to be a lot of confusion by many about what has actually happened in their criminal case. You should probably obtain and keep a copy of the court's record. Moreover, as long as it is a summary offence, and thus this does not constitute a prohibition, nonetheless there is still a high risk this will trigger non-routine processing, probably a Finger Print request at minimum. Be sure to be upfront in answering all the questions in the forms and in response to any requests from IRCC.
 

rajkamalmohanram

VIP Member
Apr 29, 2015
15,803
5,791
I might be inclined to ask my "ex probation officer" as to her authority for saying you face a 3-year bar in applying for citizenship. I find that at variance with what is posted on the IRCC website (https://www.canada.ca/en/immigration-refugees-citizenship/services/canadian-citizenship/become-canadian-citizen/eligibility/situtations-prevent-citizenship.html) as follows:

Situations that may prevent you from becoming a Canadian citizen
You cannot become a citizen if you’re prohibited under the Citizenship Act. For example, if
  • you’re in Canada
    • serving a term of imprisonment
    • on parole
    • on probation
  • you’re serving a sentence outside Canada
  • you’re charged with, on trial for, or involved in an appeal for an offence
    • under the Citizenship Act, or an indictable offence in Canada
    • committed outside Canada that’s equivalent to an indictable offence in Canada
  • you’re under a removal order (Canadian officials asked you to leave Canada)
  • you’re being investigated for, are charged with, on trial for, involved in an appeal for or have been convicted of
    • a war crime, or
    • a crime against humanity
  • you had a citizenship application refused for misrepresentation in the past 5 years
  • you had your Canadian citizenship revoked (taken away) because of fraud in the past 10 years
  • you’ve been convicted of an indictable offence in Canada or an offence under the Citizenship Act, and
    • if we received your application after June 11, 2015, and this conviction took place in the 4 years before you apply
  • in the 4 years before you apply, you were convicted of an offence outside Canada that’s equivalent to an indictable offence in Canada. This applies
    • even if you were pardoned or granted amnesty
    • regardless of when we receive your application
I construe the above passage highlighted in red as saying you have to wait 4 years in applying for citizenship if convicted of an indictable offence. It says nothing about summary conviction offences. I will assume (a perilous undertaking, I know) that if you were convicted of what is known in legal circles as a "hybrid" offence - i.e., one that may be prosecuted summarily or by indictment - then, if the Crown proceeded summarily, it will be treated as a summary offence for citizenship purposes.

I'll go out on a limb here and express the opinion that, since your probation period has been served, you are now eligible to apply for citizenship. Moreover, I see no real downside to applying. Unless I am missing something, the worst that can happen is that you'll be told to try again after 3 years (should the PO's advice be correct).

With all due respect to Rajkamalmohanram, I see the advice to hire a lawyer before making any move as a tad alarmist. It suggests that a misstep at this point could have dire consequences. I just don't see that. It's not that applying now might open some can of worms and bring the lamp of scrutiny to some otherwise dark place you would just as soon keep hidden. Those charged with adjudicating your application have access to your criminal record and more. Again, the worst outcome I can anticipate is you'll be told you have to wait. It's not like your record will be discovered when otherwise it would not, and you'll be told something like" "Get out of our country, you make the place look dirty." :D

And again, I'd be inclined to ask my PO just what is the source for her advice about a 3-year bar. Does she wear 2 hats - one for CSC and one for IRCC? Her expertise might be lacking. If she really knows her stuff, you should be able to cite some authority. Too easy to simply say "This is how it is" without backing it up.

But, in the end, if retaining counsel makes you feel better, go for it. As a former law practitioner myself, far be it from me to discourage making work for the profession.

Dpenabill is correct in saying "Most lawyers are very often NOT well versed in criminal law and procedure UNLESS that is their area of practice. Likewise, most lawyers are fairly clueless about immigration related matters unless their area of practice includes immigration."

Because of the work I do now, I'll claim some criminal law expertise, but knowing criminal law does not import any knowledge of immigration law. I am unschooled in the latter. At the same time, I regard myself as having fair legal research skills (I hope so, my livelihood depends upon it) and I can often figure things out with a modicum of due diligence.

Before leaving this matter, I'll touch on a further subject. Dpenabill suggested the possibility of pursuing what is loosely called a "pardon", which is more in the nature of a sealing of your criminal record for certain purposes. There, the fly in the ointment is you must wait 5 years before seeking relief under the Criminal Records Act. See below, esp. the portion highlighted in red. I suspect you can ignore the passages below that, dealing with Sched. 1 offences. Surely you are not a sexual offender, are you?:)

Criminal Records Act
R.S.C., 1985, c. C-47

Procedure
Marginal note:Restrictions on application for record suspension

  • 4(1) Subject to subsections (3.1) and (3.11), a person is ineligible to apply for a record suspension until the following period has elapsed after the expiration according to law of any sentence, including a sentence of imprisonment, a period of probation and the payment of any fine, imposed for an offence:
    • (a) 10 years, in the case of an offence that is prosecuted by indictment or is a service offence for which the offender was punished by a fine of more than five thousand dollars, detention for more than six months, dismissal from Her Majesty’s service, imprisonment for more than six months or a punishment that is greater than imprisonment for less than two years in the scale of punishments set out in subsection 139(1) of the National Defence Act; or
    • (b) five years, in the case of an offence that is punishable on summary conviction or is a service offence other than a service offence referred to in paragraph (a).
  • Marginal note:Ineligible persons
    (2) Subject to subsection (3), a person is ineligible to apply for a record suspension if he or she has been convicted of
    • (a) an offence referred to in Schedule 1; or
    • (b) more than three offences each of which either was prosecuted by indictment or is a service offence that is subject to a maximum punishment of imprisonment for life, and for each of which the person was sentenced to imprisonment for two years or more.
Good one! Appreciated!

The reason why I defer to lawyers is because while I do my research on immigration matters, legal matters isn't my cup of tea (Also, I have never been convicted of anything so I can't even provide a response from my own personal experience). Whenever someone comes here looking for advise that might require an insight of a legal professional (or at least when I think their query does), I suggest checking with a lawyer by default.

I agree that it might seem alarming to the OP but IMO, when it comes to these matters, it is ALWAYS better to be safe than sorry. That is the reason why I suggested that the OP.

Having said that... I certainly could be wrong to refer the OP to a lawyer as far as this case is concerned because summary offenses do not (apparently) affect citizenship applicants but I had to take the safe route as I can't provide an answer from my personal experience nor am I proficient in laws surrounding this matter.
 
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dpenabill

VIP Member
Apr 2, 2010
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It is worth emphasizing that it is clear if the conviction is for a summary offence, that in itself does not constitute a prohibition. (The probation itself still has the effect of excluding that period of time from the presence calculation.) There really is no question about that.

The question that needs a definitive answer, and where there is sometimes uncertainty or confusion, is in whether the conviction really is for a summary offence. If the court record clearly shows it was a summary offence, or a hybrid offence definitely prosecuted as a summary offence, the conviction does not constitute a prohibition for citizenship. No doubt about this.

If the criminal charge is a hybrid offence, for purposes of citizenship how it is actually prosecuted determines its effect. But for hybrid offences the Crown must ordinarily make a specific, on the record election. Most of the reporting indicates that once the prosecution has made a definite election to proceed with it as a summary offence, for citizenship (not admissibility under IRPA) it is considered a summary offence, and does not constitute a prohibition. Technically the Crown can, usually, withdraw the election and still proceed by indictment up to a certain stage of the proceedings. Which means technically the offence continues to be "indictable" even if, to that stage, it is not being prosecuted as an indictable offence. Once a formal plea or verdict is entered on a charge prosecuted as a summary offence, it is definitively a summary offence UNDER BOTH the Criminal law procedure AND for purposes of citizenship eligibility (but, again, the reporting indicates IRCC will treat it as a summary offence, for purposes of citizenship eligibility, once the Crown has made a definite election).

A charge for, let alone conviction from, a hybrid offence will usually result in non-routine processing EVEN THOUGH there is a summary offence conviction and no prohibition. In particular, for hybrid offences conclusively handled as a summary offence, there is a very high probability the charge and prosecution will be flagged during the processing of the citizenship application, and the citizenship applicant will at least need to provide Finger Prints. But many times they are asked to obtain and submit a copy of the court's official record clearly showing the disposition. One of the complicating factors sometimes apparent is that courts are not always diligent in uploading the disposition to the official criminal records database. So the "criminal record" in RCMP database can show a person charged with a hybrid offence and not clearly show the status of the charge (as summary or by indictment) in the final disposition. So IRCC will need to verify what the conviction actually is for.

How hybrid offences affect citizenship eligibility is DIFFERENT from how hybrid criminal charges and convictions affect "admissibility" under IRPA for Foreign Nationals (remember, PRs are not FNs under the Canadian immigration scheme). I do not have the provision at my fingertips, but there is an explicit provision in IRPA which specifies that, for this purpose, hybrid offences are "indictable" offences. (Probable logic: they can be prosecuted as an indictable offence, so they are "indictable.") Also worth remembering that multiple summary offences will also trigger a FN's inadmissibility. (Makes sense that non-Canadians are treated differently than Canadians.)

The very same criminal conduct can have a different impact if it was outside Canada. A hybrid offence prosecuted in Canada can be (and many are) definitely resolved as a summary offence. That distinction is not applicable in jurisdictions outside Canada. So a conviction in the U.S. for what is a hybrid offence in Canada, and typically handled as a summary offence in Canada, will ordinarily result in a prohibition, from the date it is charged until four years after the date of conviction.
 

dpenabill

VIP Member
Apr 2, 2010
6,467
3,218
Your treatise on criminal procedure makes for an interesting read, but perhaps a bit more detail than the OP's query calls for.
The post of mine you quote is no treatise on criminal procedure. It barely scratches the surface of criminal procedure (it was not me, for example, who quoted the provisions of criminal procedure verbatim and in full), but rather is focused on offering context for how criminal cases impact citizenship and immigration (the latter to distinguish how it works for citizenship), more in response to the ongoing discussion and for clarification. Hybrid offences have long been a source of confusion, both in terms of defendants fully understanding just what the disposition was in the court proceedings, and even more so in regards to the impact in immigration contexts.

Besides, actually it was my earlier post that was a response to the OP's query. I made no reference to the OP's query in the post you quote, as I had addressed that fairly exhaustively in my earlier post and the OP had not been back. In the post where I was responding to the OP's query, my first post, it was not me who went into depth listing details about misrepresentation, removal orders, imprisonment, war crimes or crimes against humanity, revocation of citizenship, among other prohibition subjects clearly not relevant to the OP's situation; rather, I made an effort to clearly focus on what was most likely to be relevant information for the OP:
-- summary offence conviction does not constitute a prohibition
-- being on probation does constitute a prohibition
-- period of time on probation does not count as days in Canada for purposes of the actual physical presence requirement
-- adding the caution about making sure the conviction is for a summary offence (given so many so often are confused about the precise details of what happened in their court proceedings)​

It is worth noting that the observation about time on probation not counting toward physical presence is among the potential explanations for the probation officer's view that the OP would need to wait three more years to qualify; the probation officer was presumably familiar with many of the OP's details, and how long the OP will need to wait to apply for citizenship depends in part on how much the OP had been in Canada during the year prior to the conviction.

The latter brings up the scope of what the OP's query calls for. Most questions posed in this forum probably have a relatively well defined scope and the answers are typically fairly direct. You would have to go deep into the back pages here, six or seven or more years ago, to find me participating much in those exchanges, and even then I generally deferred to others for responding to those questions.

Actually the OP's query here opens questions which tend to make it difficult to offer precise answers. Even at to its most simple element, that a summary conviction does not constitute a prohibition, just what that means in terms of its impact on the prospective citizenship applicant can be confusing or at least not entirely obvious. I do not think that @rajkamalmohanram was attempting to make an assertion, but the manner in which @rajkamalmohanram referenced this is telling: "because summary offenses do not (apparently) affect citizenship applicants." But they do. Just because the summary offence itself does not constitute a prohibition, where probation is imposed, for example, that definitely has an impact (no credit toward presence) on the applicant's eligibility, and as I attempted to illuminate in the post of mine you quote, it is quite likely to trigger non-routine processing, which typically means delays. (Perhaps I was not clear enough that was about citizenship application processing, not criminal procedure.)

Beyond that, in some respects the OP seemed to be asking for an explanation of the probation officer's advice about having to wait three years, but was otherwise not focused on the key question. The OP was right, though, that questions about the impact of criminal charges comes up in this forum again and again and again. The OP, it seemed, was asking whether the probation officer was correct or wrong. In contrast you referenced the right question: what was the probation officer's authority for her advice about waiting three years.

It is possible the probation officer was simply mistaken. But actually the odds are typically greater that the defendant, the to-be-a-citizenship-applicant, is the one more likely to be mistaken . . . which could be about whether it was actually a summary conviction or some other element of the criminal case. However, there is NO need to presume EITHER was mistaken. If the OP makes sure the conviction itself was for a summary offence (which seems to be one of the more common error points for those in similar situations), the OP can be sure it does not constitute a prohibition, the OP can then work through the application form and physical presence calculator, in the latter properly detailing the information about being on probation, and figure all this out, relying on the physical presence calculator to do the arithmetic.

None of which is academic. This is practical, figuring out how to navigate the process stuff for those prospective applicants who have a wrinkle or three in their past. After all, these questions do come up quite often (maybe not a thousand times, as the OP opined, but rather often).

Among what might be an interesting academic question though:
Why in the world does the IRCC prohibitions information page (the one you linked) suggest that anyone who is not certain if any of the prohibitions applies to them, contact the "arresting police officer." Contacting the arresting police officer makes little sense. A police officer is no lawyer, does not decide what the formal charge is, does not determine the outcome of the case, does not necessarily know what the disposition of the case is, and cannot be expected to know the collateral consequences of criminal charges generally let alone the particular effect in specific areas of law like immigration and citizenship.​