NL_WaterDog said:
I would also like to know. My boyfriend was charged and convicted summarily and we cannot get a straight answer out of anyone as to how to proceed with citizenship. Some lawyers said to answer NO to the citizenship question regarding being charged as his conviction is not indictable. Others said he had to say yes, but include explanation that it was processed summarily. Others said to wait the 3 years and then apply. Very confusing.
Caveat:
The following caveat is worth repeating in respect to many questions posed in a forum like this, but this caveat is
especially applicable to questions about criminal charges and citizenship prohibitions.
As is the case for many particulars in the citizenship application process, the details matter and are too many, and in many respects too personal, to share except in a
confidential setting (such as in an interview with a lawyer). Thus, even if anyone here was qualified to offer advice about assessing criminal charges relative to the citizenship prohibitions, this is not a proper venue for doing so.
This forum, and similar others, are excellent venues for obtaining observations, information, references to sources of information, and anecdotal reports reflecting related experiences, which can illuminate and illustrate aspects of the process and issues which, in turn, are often helpful.
But, but it is prudent to always approach any information here critically if not skeptically, and to confirm as much as possible, preferrably by reference to authoritative or official sources.
As noted, the above is especially applicable to issues regarding criminal charges and citizenship prohibitions because, as you have apparently discovered in consultations with lawyers, the
right answer can be elusive even for experienced legal professionals.
Important Changes In the Law: Expanded Prohibitions:
You refer to waiting
three years if the conviction itself constitutes a prohibition. The applicable time period now, as of June 11, 2015, is
four years. In addition to increasing the time frame to four years, the
SCCA also expanded the scope of the prohibitions to include offences abroad which, if committed in Canada, would constitute an indictable offence.
Reminder: CIC has long applied a policy of treating so-called hybrid offences, those which could be (but not necessarily are) prosecuted as an indictable offence, as an indictable offence unless it is specifically prosecuted, in Canada, as a summary offence. To what extent this will also apply to citizenship regarding offences abroad is not certain since the law just changed last month, but it seem very likely the same approach will be taken.
Thus, an impaired driving offence
abroad is likely to result in a prohibition for
four years after the date of conviction, regardless of whether it was handled in a manner equivalent to being prosecuted as a summary offence.
Impaired Driving Offence in Canada:
For such offences in Canada: I am not familiar with how impaired driving charges are handled in Canada. If the offence was indeed charged as a
summary offence and the conviction is for a
summary offence, my understanding is that would
NOT be a
prohibition. The thing to get clarified from a more authoritative source is confirmation the charge in your (your bf's) specific case was handled as a summary offence. If so, as I understand it, this would not require a "yes" check for item 8 H in the application.
That said, I wonder if other lawyers or sources you have consulted have indicated the offence results in a prohibition because they believe it is far more likely the offence constituted an indictable offence. Frankly, even though such offences, if a first offence or otherwise an isolated incident, can routinely result in a penalty comparable to that of a summary offence, fine and probation rather than jail for example, I thought these were ordinarily prosecuted as indictable offences.
So long as you answer all questions honestly, make no misrepresentations, there is no disability or disadvantage to making the citizenship application and being denied, other than the cost (recognizing, however, that for most it is a significant sum) and effort.
I presume there was at least some amount of probation imposed, and the time frame for disclosing probation is now
SIX (6) Years (item 8 A in the current application), so at the least a "yes" check would be required for this, and the details provided . . . which will be sufficient to inform CIC of the charge, the disposition, and ultimate outcome (successful completion of probation for example). Thus, if it is genuinely your understanding the impaired driving charge was prosecuted as a summary offence, you could check "no" for item 8 H while, by checking "yes" for item 8 A and providing details, be certain to have fully disclosed to CIC the charge and disposition (thus, even if you are wrong about it being a summary prosecution, it would not be a misrepresentation if you had a good faith understanding it was a summary prosecution and have nonetheless fully disclosed the offence and details). With the "yes" check to item 8 A, CIC will makes its own inquiry and assessment, and determine if the offence constitutes a prohibition or not . . . if so, the application will be denied, if not a prohibition, you would be good to go . . . well, remember . . .
Remember that time on probation (and I think this applies even to informal probation) does
NOT count toward residency. I am not familiar with the terms of probation imposed by Canadian courts, but I suspect a year is the minimum for an impaired driving charge. Losing a full year of residency credit will often tend to make it more difficult to meet the residency requirement.
Be certain to follow the instructions in the application and provide complete, truthful answers to all items. Do not second guess what CIC wants. Answer questions straight up.
