I was charged summarily for a criminal offense and subsequently given a conditional discharge with a probation for 22 months . There were no traveling restrictions with my probation order. The probation is ending this year and I wish to apply for citizenship.
The problem is, I traveled abroad during my probation. When I enter the probation start and end dates on the calculator, it would not let me enter an absence between those dates giving an error that says: "The 'From' date you have entered falls between a date interval you have already entered for time spent serving a sentence in Canada. Please check that the dates are correct."
So my question is: since the calculator won't let me list my travels during probation, should I just not mention them? Or? They don't matter anyways, since the time on probation doesn't count as physical presence. However, I don't want to misrepresent!
Upfront: The effect of criminal charges and prosecution on Canadians who are not yet citizens (that is, Canadian PRs)
is complex, not easily sorted out, and subject to a wide range of variables and contingencies depending on lot of particular details and the variable interaction of such details. If there is any doubt at all, BEST to PAY for a real, in-person consultation with an experienced lawyer, a consultation based on the PR's specific facts and circumstances. That is, BEST to see a LAWYER.
Note, for example, if the criminal offence charged is one that could be prosecuted summarily OR by indictment (so-called "
hybrid" offences, which actually make up the bulk of crimes prescribed in the Canada Criminal Code), for PRs it does NOT matter if it was actually prosecuted as a summary offence. For purposes of what makes a PR inadmissible, and for purposes of the applicable prohibitions in regards to citizenship eligibility,
a hybrid offence is considered to be an indictable offence even if it was charged and prosecuted as a summary offence.
So you probably want to
LAWYER-UP. And all of the following comments are offered with that in mind, more or less to help illuminate some important aspects of this BUT with the caveat you should talk to a lawyer about how this applies to YOU, in your particular situation. Yeah, better to
LAWYER-UP.
Additionally, while I have done scores and scores of hypothetical presence calculations, wrestling with a wide variety of situations, I never worked through this scenario. So I cannot offer any insight into the practical how-to-report, what-to-report here.
Longer Observations Offered But With Caution That It Is Best To See a Lawyer:
Criminal charges complicate things. And it in these situations it is probably worth the cost of a paid-for consultation with a reputable immigration lawyer who is experienced with how the criminal law affects immigration issues.
Here's the thing: you may have almost nothing to worry about and the days you were IN Canada during the time you were on probation will count, no need to even declare the probation in the presence calculation . . . BUT if the probation period is a period on probation that does not count toward meeting the presence requirement, that probably also means you are subject to a prohibition.
When proceedings attendant a conditional charge are finally, fully complete, AND the charge is in fact discharged, as in dismissed, as in NOT resulting in a conviction, and any probation imposed as a condition for that has been completed SUCCESSFULLY, a PR applying for citizenship does NOT need to declare that probation for the purpose of the physical presence calculation. Which I guess is music to your ears, good news, perhaps damn good news.
BUT that comes with a caveat, a caution: that only works if there is in fact NO conviction, the case is discharged, and again, probation was successfully completed. And the court records need to clearly confirm this.
See the relevant IRCC's FAQ's here:
https://eservices.cic.gc.ca/rescalc/redir.do;jsessionid=46AC3E766D187D08BE36AACBAD9F670E?redir=faq#Q11 and question 11 in particular.
Here is the question . . .
Q11: I have heard that some time spent imprisoned, on parole or on probation can still be counted as physical presence. Is this true?
Here is the pertinent part of the answer . . .
A11: In general, time spent serving a sentence for an offence in Canada cannot count towards physical presence for the purposes of becoming a Canadian citizen (i.e. you cannot count time spent serving a term of imprisonment, on probation, and/or parole as physical presence). There are, however, the following exceptions:
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.
Additionally, once there is a final disposition of the criminal case, and the charge is officially discharged, no conviction, nothing still pending, there is no need to declare this in response to the prohibitions listed in question 16 in citizenship application.
There are two catches.
One catch I have already noted, but it demands repeating with emphasis. The official court record needs to confirm this status of the case, that the charge is officially, in effect, dismissed. Problem is there tends to be a lot of confusion and misunderstanding about the actual, final and official disposition of many criminal charges. Nonetheless, if the PR is certain the final disposition was a conditional discharge and now all the conditions are met, including successful completion of any probation, good to go, no problem, no prohibition, no need to declare the probation in the physical presence calculation. Leading to the second catch . . .
You need to be REALLY CERTAIN, because IRCC will definitely find out about the charge, despite it being discharged without a conviction, and most likely require the applicant to obtain and submit copies of the official court record showing the final disposition, offence discharged. Because the charge itself will very likely pop up in background screening, even though there is no need for the PR to declare it in the application or presence calculator, it is probably a good idea to somehow make reference to it in making the application and include an explanation the charges have been totally discharged. Whether submitting a copy of the official court records with the application will avoid delays later due to a request for such records, I do not know.
This is one thing, among many, to discuss with an experienced lawyer.
As I noted, sorting this stuff out can get complicated. Did you actually successfully complete probation, for example? Were there notification requirements, or perhaps even restrictions, in regards to travel? And if so, did you comply? (I am not asking you to say one way or another here; just noting these might be relevant to whether your probation has been successfully completed.)
I alluded to the other side of the coin, the not-good-news side. If the official court disposition shows a conviction for a hybrid offence (such as because the conditions that make up the "conditional" part of the conditional discharge were not satisfied), even if the charge was handled as a summary offence that would constitute a prohibition and bar you from being eligible for citizenship for FOUR years AFTER the date of conviction. Moreover, depending on what the actual offence was, and more to the point depending on what the maximum punishment could be if it was prosecuted by indictment, if the offence is one which could result in imprisonment for ten years, or more, that would meet the definition of serious criminality which could lead to loss of PR status . . . again EVEN IF prosecuted summarily.
Yeah, did I mention it is a good idea to see a lawyer? I think I did. See a lawyer.
