Citizenship application with DUI
- Thread starter Gabru84
- Start date
DUI can be an indictable offence. In that case, you are barred from applying for citizenship for the four years after conviction.
DUI can also be charged as a summary offence. In that case, it is not a hurdle for citizenship.
In any case, I would recommend talking to a lawyer.
Then you might be lucky. I'm not conversant enough in these things to make a call. Someone else would have to chime in. Also, I'm not sure if this is the kind of case where you should rely on forum opinion. You might get wrong advice here, then check the wrong box on the form and then this could be construed as misrepresentation later. I would still suggest you talk to a lawyer.
I believe it was stated somewhere either on IRPA or IRPR that hybrid offense is considered indictable for immigration purposes.
However, grant of Citizenship is governed by Citizenship Act, and there was a court precedence ruling that if a hybrid offense is pursued summarily, then it loses its indictable nature, so as spyfy said, you might be in the luck, and wouldn't have to wait four years to apply
It is, however, prudent to consult a very competent immigration lawyer (and not all lawyers are created equal), since none of us here is an expert, and can be prone to errors.
However, grant of Citizenship is governed by Citizenship Act, and there was a court precedence ruling that if a hybrid offense is pursued summarily, then it loses its indictable nature, so as spyfy said, you might be in the luck, and wouldn't have to wait four years to apply
.
It is, however, prudent to consult a very competent immigration lawyer (and not all lawyers are created equal), since none of us here is an expert, and can be prone to errors.
I know this subject has been around, but I thought I will still ask to see if anyone had experienced it before.
My lawyer confirmed the DUI charge (first charge/ conviction ever) was proceed summarily, but I didn’t see /read that in court transcript. Is a there a way to confirm this?
Assume it was summary, what do I answer for the below Q's:
Physical presence calculate:
Will the 12 months driving prohibition (was only 6 months due to the enrollment of Stream B interlock) affect the eligibility date? Should I answer yes in the prohibition / probation question?
Citizenship application section: 16. Prohibition:
In the past 4 years immediately before the date of your citizenship …
Been convicted of an indictable offence under the Act of Parliament or an offence under the Citizenship act?
My lawyer confirmed the DUI charge (first charge/ conviction ever) was proceed summarily, but I didn’t see /read that in court transcript. Is a there a way to confirm this?
Assume it was summary, what do I answer for the below Q's:
Physical presence calculate:
Will the 12 months driving prohibition (was only 6 months due to the enrollment of Stream B interlock) affect the eligibility date? Should I answer yes in the prohibition / probation question?
Citizenship application section: 16. Prohibition:
In the past 4 years immediately before the date of your citizenship …
Been convicted of an indictable offence under the Act of Parliament or an offence under the Citizenship act?
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While I have made a response elsewhere, I am also posting here to share with the forum generally.
The impact of criminal charges really is a subject to be addressed in a confidential client-attorney context.
The best I can offer is to highlight what is known and understood with clear delineation about what is NOT known.
To date I have seen NO reliable account of IRCC policy regarding Hybrid Offences (which driving while impaired or over-the-limit is) prosecuted as Summary Offences (the offence charged is nonetheless "indictable" since it can indeed be prosecuted by indictment) in the context of grant citizenship prohibitions.
In any event, my long response below covers as much as I know and understand . . . noting that the caveat I am NO expert is not merely a pro forma disclaimer.
Otherwise, the best approach is to take all your paperwork and PAY for a consultation with a competent, reputable immigration LAWYER. But that could be expensive.
Beyond that, what I can offer:
What matters is the nature, status, and disposition of the criminal charge. BUT SORRY I DO NOT KNOW much beyond that regarding how to respond in Item 16 given the charge and conviction.
I am NOT an expert. Not by a long shot. And I am NOT very familiar with the Canadian Criminal Code or Canadian criminal law generally.
Bottom-line: I do NOT know how driving while impaired or driving under the influence related offences are handled in the Canadian criminal system, and thus I know very little about how such offences might have an impact in a grant citizenship application.
Again, what matters is the nature, status, and disposition of the criminal charge. BUT SORRY I DO NOT KNOW much beyond that regarding how to respond in Item 16 given the charge and conviction.
I do not even know what the formal name of the charge is in Canadian law. I just looked up the offence in the Canadian Criminal Code and thus I know it is a HYBRID offence, meaning it could be prosecuted as either a Summary offence or as an Indictable offence. But I am not clear what this means for purposes of grant citizenship prohibitions.
Since it is likely to be discovered and reviewed by IRCC in the course of processing your citizenship application, personally I'd lean toward disclosing and explaining the charge. BUT I DO NOT KNOW how, in particular, you should do this.
This is to say I'd expect IRCC to find out about the charge even if you do not disclose it, and that is likely to result in non-routine processing to some extent. That might only mean a Finger Print request, but could also mean a request for official court records regarding the charges and their disposition. Thus I'd lean in favour of proactively disclosing the charges EXCEPT I DO NOT KNOW what is the best way to do that.
With rare exceptions, I'd expect IRCC to appropriately assess the situation. So you can probably expect a CORRECT decision. BUT here too I DO NOT KNOW what that should be.
It can be a bit complicated because even if the conviction is for an offence prosecuted as a Summary Offence, if there is a period of probation imposed the individual is prohibited as long as he or she is on probation, and moreover the time on probation cannot be counted as days present in Canada (time on probation is, in effect, treated as time absent from Canada).
I also do NOT know how IRCC approaches HYBRID offences for purposes of citizenship eligibility and prohibitions, recognizing that a Hybrid offence is one which can be prosecuted either as a Summary offence or pursuant to Indictment, and thus is technically an Indictable Offence (since one can be indicted for it) even if not prosecuted by indictment . . . perhaps IRCC goes according to the classification of the charge as convicted (which would be a Summary Offence) or similar to how IRCC approaches inadmissibility for Foreign Nationals pursuant to which the fact that the charge could be prosecuted by indictment means it is treated as an indictable offence EVEN IF it was actually prosecuted as a Summary Offence.
I am familiar with the general distinctions between Summary Offences, Indictable Offences, and Hybrid Offences, but apart from a few particular offences I have researched (like assault) and those whose category is obvious (at one end minor traffic infractions which are not even a Summary Offence, and simple trespass which I believe is simply a Summary Offence, versus the more serious offences like robbery or murder, or serious categories of assault, which obviously are Indictable Offences), I do not know much about the classification of particular charges. But again, I just looked up Section 253 in the Criminal Code and it is a Hybrid offence.
If the formal charge is a Hybrid Offence which has been prosecuted as a Summary offence, resulting in a conviction for a Summary offence, again I do NOT KNOW how IRCC treats this kind of conviction for purposes of the prohibitions.
Again, SORRY I cannot offer more. And, unfortunately, I'd caution against relying on advice about this from anyone in a forum like this.
IDEAS IN REGARDS TO POSSIBLE WAYS TO APPROACH THIS:
(Offered with the caveat that I am NO expert, there is a lot about this kind of situation I do NOT know, and I am NOT qualified to offer personal advice.)
Again, the best approach is to take all your paperwork and PAY for a consultation with a competent, reputable immigration LAWYER. But that could be expensive.
If a period of probation was imposed and you are still on probation, best to wait until the period of probation is completed before proceeding with a citizenship application at all. (If you are on probation, you are prohibited.)
If probation was imposed but you are no longer on probation, be sure to properly populate this information in the online presence calculator. That should accurately calculate your eligibility relative to the presence requirement.
Otherwise (if there was NO probation or probation period is completed) the question is whether to check Item 16. b) and then provide details. For example, you could check Item 16. b) and state you were charged with driving while impaired, which is Criminal Code Section 253(1)(a), or with having a blood alcohol content above the limit, which is Criminal Code Section 253(1)(b), whichever offence it is you were charged with, but the charge was prosecuted as a Summary offence and include some details (date of offence for example) including some details about the court case (such as the formal caption including case number or such). As I noted before, you can probably trust IRCC to properly evaluate this consistent with its policies and practices, and this way you have disclosed it (that is, you have not concealed it).
Better to have gotten and followed a competent attorney's advice but if money is tight, by applying you would in effect be spending the money you would pay for a lawyer's advice (free consultations are unreliable and worth little to nothing -- when dealing with lawyers it is tough to get what you actually pay for let alone get something for free) to pay the applications fees. No harm in trying except the cost. Worse case scenario is the application is denied, and you have to wait until there is no applicable prohibition.
If you do the latter, it would be helpful to report to the forum how things go for you.
The impact of criminal charges really is a subject to be addressed in a confidential client-attorney context.
The best I can offer is to highlight what is known and understood with clear delineation about what is NOT known.
To date I have seen NO reliable account of IRCC policy regarding Hybrid Offences (which driving while impaired or over-the-limit is) prosecuted as Summary Offences (the offence charged is nonetheless "indictable" since it can indeed be prosecuted by indictment) in the context of grant citizenship prohibitions.
In any event, my long response below covers as much as I know and understand . . . noting that the caveat I am NO expert is not merely a pro forma disclaimer.
The driving prohibition itself is NOT relevant. That should have no impact and just that does not trigger any need to declare and explain in Item 16 (in current application form) regarding prohibitions. This much I am confident about.
Otherwise, the best approach is to take all your paperwork and PAY for a consultation with a competent, reputable immigration LAWYER. But that could be expensive.
Beyond that, what I can offer:
What matters is the nature, status, and disposition of the criminal charge. BUT SORRY I DO NOT KNOW much beyond that regarding how to respond in Item 16 given the charge and conviction.
I am NOT an expert. Not by a long shot. And I am NOT very familiar with the Canadian Criminal Code or Canadian criminal law generally.
Bottom-line: I do NOT know how driving while impaired or driving under the influence related offences are handled in the Canadian criminal system, and thus I know very little about how such offences might have an impact in a grant citizenship application.
Again, what matters is the nature, status, and disposition of the criminal charge. BUT SORRY I DO NOT KNOW much beyond that regarding how to respond in Item 16 given the charge and conviction.
I do not even know what the formal name of the charge is in Canadian law. I just looked up the offence in the Canadian Criminal Code and thus I know it is a HYBRID offence, meaning it could be prosecuted as either a Summary offence or as an Indictable offence. But I am not clear what this means for purposes of grant citizenship prohibitions.
Since it is likely to be discovered and reviewed by IRCC in the course of processing your citizenship application, personally I'd lean toward disclosing and explaining the charge. BUT I DO NOT KNOW how, in particular, you should do this.
This is to say I'd expect IRCC to find out about the charge even if you do not disclose it, and that is likely to result in non-routine processing to some extent. That might only mean a Finger Print request, but could also mean a request for official court records regarding the charges and their disposition. Thus I'd lean in favour of proactively disclosing the charges EXCEPT I DO NOT KNOW what is the best way to do that.
With rare exceptions, I'd expect IRCC to appropriately assess the situation. So you can probably expect a CORRECT decision. BUT here too I DO NOT KNOW what that should be.
It can be a bit complicated because even if the conviction is for an offence prosecuted as a Summary Offence, if there is a period of probation imposed the individual is prohibited as long as he or she is on probation, and moreover the time on probation cannot be counted as days present in Canada (time on probation is, in effect, treated as time absent from Canada).
I also do NOT know how IRCC approaches HYBRID offences for purposes of citizenship eligibility and prohibitions, recognizing that a Hybrid offence is one which can be prosecuted either as a Summary offence or pursuant to Indictment, and thus is technically an Indictable Offence (since one can be indicted for it) even if not prosecuted by indictment . . . perhaps IRCC goes according to the classification of the charge as convicted (which would be a Summary Offence) or similar to how IRCC approaches inadmissibility for Foreign Nationals pursuant to which the fact that the charge could be prosecuted by indictment means it is treated as an indictable offence EVEN IF it was actually prosecuted as a Summary Offence.
I am familiar with the general distinctions between Summary Offences, Indictable Offences, and Hybrid Offences, but apart from a few particular offences I have researched (like assault) and those whose category is obvious (at one end minor traffic infractions which are not even a Summary Offence, and simple trespass which I believe is simply a Summary Offence, versus the more serious offences like robbery or murder, or serious categories of assault, which obviously are Indictable Offences), I do not know much about the classification of particular charges. But again, I just looked up Section 253 in the Criminal Code and it is a Hybrid offence.
If the formal charge is a Hybrid Offence which has been prosecuted as a Summary offence, resulting in a conviction for a Summary offence, again I do NOT KNOW how IRCC treats this kind of conviction for purposes of the prohibitions.
Again, SORRY I cannot offer more. And, unfortunately, I'd caution against relying on advice about this from anyone in a forum like this.
IDEAS IN REGARDS TO POSSIBLE WAYS TO APPROACH THIS:
(Offered with the caveat that I am NO expert, there is a lot about this kind of situation I do NOT know, and I am NOT qualified to offer personal advice.)
Again, the best approach is to take all your paperwork and PAY for a consultation with a competent, reputable immigration LAWYER. But that could be expensive.
If a period of probation was imposed and you are still on probation, best to wait until the period of probation is completed before proceeding with a citizenship application at all. (If you are on probation, you are prohibited.)
If probation was imposed but you are no longer on probation, be sure to properly populate this information in the online presence calculator. That should accurately calculate your eligibility relative to the presence requirement.
Otherwise (if there was NO probation or probation period is completed) the question is whether to check Item 16. b) and then provide details. For example, you could check Item 16. b) and state you were charged with driving while impaired, which is Criminal Code Section 253(1)(a), or with having a blood alcohol content above the limit, which is Criminal Code Section 253(1)(b), whichever offence it is you were charged with, but the charge was prosecuted as a Summary offence and include some details (date of offence for example) including some details about the court case (such as the formal caption including case number or such). As I noted before, you can probably trust IRCC to properly evaluate this consistent with its policies and practices, and this way you have disclosed it (that is, you have not concealed it).
Better to have gotten and followed a competent attorney's advice but if money is tight, by applying you would in effect be spending the money you would pay for a lawyer's advice (free consultations are unreliable and worth little to nothing -- when dealing with lawyers it is tough to get what you actually pay for let alone get something for free) to pay the applications fees. No harm in trying except the cost. Worse case scenario is the application is denied, and you have to wait until there is no applicable prohibition.
If you do the latter, it would be helpful to report to the forum how things go for you.
Thank you so much for the detailed answer.
I have already visited good immigration lawyer and consulted with. H/she wasn’t sure how did the crown proceed. So I went back to my criminal lawyer and got the court deposition and verdict. It clearly indicated that indicated it was proceed summarily and minimum sentence was imposed and only fine paid which was 1K + victim surcharge and 12 months driving ban.
Here is the issue:
How do I find out whether I’m on prohibition? I was able to travel to and from Canada with no issues at all. Only paid fines with $1300 and they took my licence for 6 months until I enrolled for interlock.
I have already visited good immigration lawyer and consulted with. H/she wasn’t sure how did the crown proceed. So I went back to my criminal lawyer and got the court deposition and verdict. It clearly indicated that indicated it was proceed summarily and minimum sentence was imposed and only fine paid which was 1K + victim surcharge and 12 months driving ban.
Here is the issue:
How do I find out whether I’m on prohibition? I was able to travel to and from Canada with no issues at all. Only paid fines with $1300 and they took my licence for 6 months until I enrolled for interlock.
farhadiz
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@dpenabill Thanks for your reply.
I am in the similar situation. As you said there is not a CLEAR answer for this topic ANYWHERE! What I know is that on my papers it clearly mentioned it is a "summary" charges. I went to the court and get the conformation as well. They told me it is not hybrid nor indictable charge. Now If you look at the list of questions here https://imgur.com/GueDhoA on immigration application form, it clearly asks you about indictable offence, which in our case it shouldn't be checked. Having said that, I believe they have very good access to your background and even if you uncheck all questions, they may get back to you with more questions regarding the offence. But still I believe I have to uncheck the questions regarding to charges.
ONE big confusion that I have is about probation period. My initial probation period was ONE year (in 2017), but since I paid the fine, attend the classes, and got the interlock, it was reduced to 90 days- which is called Stream "A": licence suspension period reduced to a minimum of 3 months, followed by a minimum 9-month ignition interlock installation period". Is this going to be considered as conditional discharge and my probation turns to 90 days instead of a year? Because if it is based on the presense calculator, I am good to apply for citizenship as today! he exceptions are listed here: https://eservices.cic.gc.ca/rescalc/redir.do?redir=faq#Q11
I am in the similar situation. As you said there is not a CLEAR answer for this topic ANYWHERE! What I know is that on my papers it clearly mentioned it is a "summary" charges. I went to the court and get the conformation as well. They told me it is not hybrid nor indictable charge. Now If you look at the list of questions here https://imgur.com/GueDhoA on immigration application form, it clearly asks you about indictable offence, which in our case it shouldn't be checked. Having said that, I believe they have very good access to your background and even if you uncheck all questions, they may get back to you with more questions regarding the offence. But still I believe I have to uncheck the questions regarding to charges.
ONE big confusion that I have is about probation period. My initial probation period was ONE year (in 2017), but since I paid the fine, attend the classes, and got the interlock, it was reduced to 90 days- which is called Stream "A": licence suspension period reduced to a minimum of 3 months, followed by a minimum 9-month ignition interlock installation period". Is this going to be considered as conditional discharge and my probation turns to 90 days instead of a year? Because if it is based on the presense calculator, I am good to apply for citizenship as today! he exceptions are listed here: https://eservices.cic.gc.ca/rescalc/redir.do?redir=faq#Q11
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On one hand this is probably not worth spending the money to get a lawyer's expert opinion, but the best source for advice about this would be to pay for actual legal advice.
Short answer with some guesswork: my guess is this sounds like a year's probation . . . which needs to be properly noted in the online presence calculation, for which you do not get presence credit. But probably is not a conviction for an indictable offence. That's my GUESS.
A conditional discharge means in the end there is NO conviction. This is a typical outcome for some minor offences involving minimally criminal acts . . . a first and only domestic violence offence with no injuries or aggravating circumstances with concurrence of the victim, for example . . . such that the charge may be hanging over one's head for a period of times, subject to CONDITIONS, and when that period of time has passed and the conditions have been met, the charge is dismissed, "discharged," NO resulting conviction.
I am NO expert so I do not know what your actual situation is, but the conditional discharge provisions do not appear to be applicable. You probably cannot count the time you were on probation. And that, the date your probation officially ended, is something you will need to sort out and GET RIGHT.
But do not trust me about how IRCC considers the conviction itself. That will depend on IRCC policy and practice. And I am NOT sure what that is.
So far as the criminal justice system works, as best I can figure out, a conviction is not for a "hybrid" offence, as such, but is either a conviction for a summary offence or a conviction for an offence prosecuted by indictment.
So sure, so far as the court's records go, the conviction is for a summary offence.
But that does not necessarily dictate how IRCC treats it. Again, that depends on IRCC policy and practice. And again, I am NOT sure what that is. (These days I lean toward the view that if prosecuted as a summary offence IN Canada, it is NOT a conviction for an indictable offence and thus would not need to be disclosed in response to Item 16.8. in the current application. BUT again this is something I do NOT know with any degree of confidence.)
NOTE: The appropriate source for what prohibition questions are asked is rarely some third party source . . . see Item 16 in the current application form which consists of the actual questions asked. Also see the instruction guide and, as apparently you have, related FAQ information provided by IRCC.
Item 16.8. in CIT 0002 (02-2019) does, indeed, specifically ask:
In the 4 years immediately before the date of your citizenship application, have you:
--Been convicted of an indictable offence under any Act of Parliament . . .
While there are indications that, for this item, IRCC handles offences based on the offence for which the PR was ACTUALLY CONVICTED, as I noted previously, I do NOT know this for sure or with a whole lot of confidence. As I said:
Information about how hybrid offences are treated by IRCC (noting that the term hybrid is about how a particular criminal act MIGHT be prosecuted, either as a summary offence or by indictment) mostly comes from the assessment of FN inadmissibility based on charges outside Canada, which if the criminal acts can be prosecuted in Canada, if done in Canada, as either type, the Canadian EQUIVALENT is considered to be an INDICTABLE offence, because the commission of such an offence CAN BE prosecuted by indictment (hence "indictable") even if it might not be so prosecuted (if prosecuted in Canada).
But a conviction IN Canada should, ordinarily, be one or the other. A conviction for an offence prosecuted summarily, or for an offence prosecuted by indictment. Note this is an especially important distinction now for driving while impaired offences, since the new law, as of December, makes the offence prosecuted by indictment punishable by up to ten years imprisonment, which meets the threshold of serious criminality for which not only would the PR be prohibited from a grant of citizenship but also inadmissible for serious criminality and subject to losing PR status altogether . . . regardless of the actual sentence imposed. Most run-of-the-mill driving while impaired prosecutions will probably be prosecuted as a Summary offence, but the possibility of being prosecuted by indictment, which again would make it meet the serious criminality criteria, looms ominously over anyone who drinks and drives or smokes up and drives.
But drawing conclusions from such musings in this area is notoriously unreliable . . . AGAIN what matters is the policy and practice actually employed by IRCC. That is what controls. It is what it is. And again, that is something I do NOT know for sure.
THE PROBLEM . . . as you allude . . . is that when IRCC does the GCMS background screening it is likely there will be a RCMP name record HIT . . . which is likely to at least trigger a finger print request if not other non-routine processing, and thus some delay in processing compared to other applicants. Even if the GCMS background screening does not generate a HIT, the RCMP clearance probably will. If the court properly followed through with the paperwork (little of which, I assume, is done on actual paper these days), the disposition should be clear in the RCMP databases. So it should NOT be much of a problem. Should NOT cause much of a delay. But yeah, my guess is this pops up in GCMS and a processing agent will have to verify it was not a conviction for an indictable offence and verify the period of probation.
That's the best I can offer. Which falls short of clearing it up. Sorry.
So basically we don't know whether the reduced driving ban (AKA stream A & stream B) is counted in as physical presence?
Is the driving ban a probation or prohibition by itself?
This is where I'm confused!
Is the driving ban a probation or prohibition by itself?
This is where I'm confused!
Frankly, compared to other jurisdictions whose laws I am more familiar with, Canada's low-end prosecution of driving while impaired offences seems incredibly lenient. Yet, even the baseline offence can be dramatically elevated to a very serious offence merely by prosecuting it by indictment. In between . . .
I also am NOT familiar with how the Canadian criminal courts impose probation, not generally, and not in driving while impaired cases.
These are practical, law practice oriented matters which one would ordinarily become acquainted with in one of two ways: as a professional working in the criminal justice system (such as lawyer, defense or prosecution, judge, or probation or parole officer, or such) or as a subject. I have no prospect of engaging in the first. I would very much prefer to avoid the latter (and plan to do so, that is, to totally avoid becoming a subject of the criminal justice system).
On the other hand, I believe there is some variation in how the courts handle these matters. Some variation in the terms of sentencing, and this includes variation in what "probation" is imposed, including when, including for how long, in addition to the terms of probation.
I am just beginning to understand the difference between a "driving prohibition" imposed by the court in the criminal case, as part of the sentencing, and other administrative proscriptions like the suspension of driving privileges. Those of you who have been through the process should have a better idea what these are about.
As I noted, I am not much familiar with the practical, procedural functions attendant sentencing in criminal matters in Canada. An order of imprisonment is easy to understand: you go to jail or prison according to what the order imposes. An order imposing a fine is easy to understand: the defendant is ordered to pay a certain amount in fines.
In a general sense, an order imposing probation should also be easy to understand, even if the particular conditions imposed as part of the probation are complex or confusing. The basic structure is simply an order imposing conditions the convicted defendant must comply with for a specified period of time. One year seems common. It appears almost all probation orders include basic conditions, like good behavior and follow any court orders.
My current GUESS is that the driving prohibition is such a court order, an order the convicted defendant must comply with as part of his or her probation. The length of the prohibition does not necessarily need to be the same length of time as the probation, but I'd expect the probation is ordinarily at least long enough to last as long as the driving prohibition . . . but it could be LONGER than the driving prohibition.
How this works with interlock programs, again I am NOT familiar with these in particular . . . and those of you who have gone through the process should have a better grasp of how they work. That said, probably a safe bet that these programs do NOT affect the duration of the probation order itself. They affect the duration of the driving prohibition or are a variation of the driving prohibition.
ALL THAT SAID, there should be a final sentencing order in the court record and it should state some details about the order of probation, including its duration. In this regard, it is what the court actually ordered that dictates whether the convicted defendant is subject to an order of probation and assuming so (at least for driving while impaired offences, and of course more serious offences as well), its duration.
And even though the conviction is for a SUMMARY OFFENCE, the term of probation affects a PR's path to citizenship in two ways:
That's the best I can sort this out for now.
On one hand, I do NOT know how the Canadian criminal justice system handles driving while impaired offences (except to know what statutory provisions apply and basically what they prescribe).
I also am NOT familiar with how the Canadian criminal courts impose probation, not generally, and not in driving while impaired cases.
These are practical, law practice oriented matters which one would ordinarily become acquainted with in one of two ways: as a professional working in the criminal justice system (such as lawyer, defense or prosecution, judge, or probation or parole officer, or such) or as a subject. I have no prospect of engaging in the first. I would very much prefer to avoid the latter (and plan to do so, that is, to totally avoid becoming a subject of the criminal justice system).
On the other hand, I believe there is some variation in how the courts handle these matters. Some variation in the terms of sentencing, and this includes variation in what "probation" is imposed, including when, including for how long, in addition to the terms of probation.
I am just beginning to understand the difference between a "driving prohibition" imposed by the court in the criminal case, as part of the sentencing, and other administrative proscriptions like the suspension of driving privileges. Those of you who have been through the process should have a better idea what these are about.
As I noted, I am not much familiar with the practical, procedural functions attendant sentencing in criminal matters in Canada. An order of imprisonment is easy to understand: you go to jail or prison according to what the order imposes. An order imposing a fine is easy to understand: the defendant is ordered to pay a certain amount in fines.
In a general sense, an order imposing probation should also be easy to understand, even if the particular conditions imposed as part of the probation are complex or confusing. The basic structure is simply an order imposing conditions the convicted defendant must comply with for a specified period of time. One year seems common. It appears almost all probation orders include basic conditions, like good behavior and follow any court orders.
My current GUESS is that the driving prohibition is such a court order, an order the convicted defendant must comply with as part of his or her probation. The length of the prohibition does not necessarily need to be the same length of time as the probation, but I'd expect the probation is ordinarily at least long enough to last as long as the driving prohibition . . . but it could be LONGER than the driving prohibition.
How this works with interlock programs, again I am NOT familiar with these in particular . . . and those of you who have gone through the process should have a better grasp of how they work. That said, probably a safe bet that these programs do NOT affect the duration of the probation order itself. They affect the duration of the driving prohibition or are a variation of the driving prohibition.
ALL THAT SAID, there should be a final sentencing order in the court record and it should state some details about the order of probation, including its duration. In this regard, it is what the court actually ordered that dictates whether the convicted defendant is subject to an order of probation and assuming so (at least for driving while impaired offences, and of course more serious offences as well), its duration.
And even though the conviction is for a SUMMARY OFFENCE, the term of probation affects a PR's path to citizenship in two ways:
-- the PR is PROHIBITED from a grant of citizenship while the PR is on probation, and
-- the period of time a PR is on probation is counted as time ABSENT from Canada
-- the period of time a PR is on probation is counted as time ABSENT from Canada
That's the best I can sort this out for now.
I actually checked the court document and the sentencing was:
Only minimum fine imposed (1K victim surcharge)
12-months driving prohibition.
Now should still add this as Probation period in the physical presence calculator?
Only minimum fine imposed (1K victim surcharge)
12-months driving prohibition.
Now should still add this as Probation period in the physical presence calculator?
This should be an EASY question. I thought it would be easy. I thought the formal court record would be clear.
If possible, in person is better than by telephone, maybe ask the clerk at the court where your case was processed. Ask "was I on probation?"
Beyond that I can offer my musings . . . for what that's worth . . .
I have never looked at a Canadian criminal court's disposition record.
My guess is that there is more to the sentencing . . . but again that is a GUESS and guesses in these matters mean little or nothing. What matters is the actual disposition in the particular case.
As I previously noted, it is difficult to imagine the sentencing disposition NOT including at least a general condition to not breach the peace for . . . six months or a year. That would be the period of probation. Still, what matters is the actual disposition.
And it may indeed be that the driving prohibition (which apparently can be suspended or such pursuant to provincial interlock and related programs) entails a kind of probation.
Bottom-line, again I DO NOT KNOW. My sense is the sentencing includes some period of probation. But what matters is whether it actually does include a period of probation.
What I do know is this (being repetitive): If the final disposition includes a period of probation that affects a PR's path to citizenship in two ways:
The first must be disclosed in response to Item 16 in the application form. The latter must be disclosed in completing the online presence calculation.
EFFORTS TO LOOK THIS UP:
What I know is what I said I know above. What I do not know is what the actual disposition was in your case.
But I also do NOT know what the disposition typically is in Canada. And I have tried to look this up . . . and, well, many websites I looked at do NOT get even some basics right (which is largely due to not updating the information given the new law which took effect last December, but they simply include ERRONEOUS information which means they are less than fully reliable), including some lawyer's websites, some community organization websites, and including Wikipedia. They all are NOT entirely current or correct.
As to probation they are all vague, remarkably vague.
In contrast, though, any news reports about high profile cases (like the one involving former Toronto mayor Rob Ford's sister) usually refer to a term of probation imposed as part of the sentencing. (Ford's sister got THREE years probation.) But it is unreliable to extrapolate much from isolated news reports about high profile cases. Nonetheless, such reports to some degree underlie my continuing impression, my "sense," my GUESS, that some period of probation seems likely.
Unfortunately the question straddles two rather disparate areas of law, criminal law and immigration/citizenship law. Lawyers with practices and expertise in one field can be remarkably ignorant of the other. Not uncommon to see websites maintained by criminal defense lawyers referring to the rights of "Canadian citizens" when what they are referring to are not the rights of only Canadian citizens, and indeed not only the rights of all Canadians, remembering that Canadian PRs are "Canadians" in Canadian law, but ALL persons in Canada, including Foreign Nationals, and even FNs without status in Canada. . . . they appear to be remarkably uninformed about the scope of the rights they purport to defend, at least insofar as immigration status is involved.
In any event, it can be risky to rely on the opinion of a lawyer with a practice and expertise in one field as to questions involving the other field. A good lawyer will know, because a good lawyer will make the effort to get informed before offering an opinion. But lawyers with practices oriented around criminal defense with a big part of that handling drinking and driving cases, and lawyers engaged in immigration law . . . and, while not relevant here so much, but also lawyers doing a lot of divorce law . . . tend to have closed silos of expertise and are not reliable sources of opinion in matters outside their respective silo. (Similarly for tax lawyers, patent lawyers, bankruptcy lawyers . . . but lawyers with practices in these fields tend to be more upfront about the scope of their services, or at least that is my impression, and will refer questions outside their field to more appropriate lawyers for those questions.)
So I am not sure who you can get a reliable opinion from in regards to your personal case. Personally I would try to find one of the "good" lawyers, and then be careful with what the lawyer says, making sure it fits in with what you do know. Or, again, maybe you could ask a clerk of the court where your case was handled . . . asking "was I on probation?" or such.
By the way, if you learn more about how this works, what to look for, or such, please share what you learn. This should be an easy question. Be nice to have a better answer, since this is an all too common question.
If possible, in person is better than by telephone, maybe ask the clerk at the court where your case was processed. Ask "was I on probation?"
Beyond that I can offer my musings . . . for what that's worth . . .
I personally do NOT know . . . it is difficult to imagine that a driving while impaired conviction does not result, virtually automatically, in probation for at least six months or a year. BUT these sorts of things cannot be inferred. They are what they are. I assumed any "probation" period would be explicit in the court's final sentencing order. But again, what is anticipated or presumed or assumed, no matter how well reasoned, is NOT what counts. What counts is what the courts actually do.
I have never looked at a Canadian criminal court's disposition record.
My guess is that there is more to the sentencing . . . but again that is a GUESS and guesses in these matters mean little or nothing. What matters is the actual disposition in the particular case.
As I previously noted, it is difficult to imagine the sentencing disposition NOT including at least a general condition to not breach the peace for . . . six months or a year. That would be the period of probation. Still, what matters is the actual disposition.
And it may indeed be that the driving prohibition (which apparently can be suspended or such pursuant to provincial interlock and related programs) entails a kind of probation.
Bottom-line, again I DO NOT KNOW. My sense is the sentencing includes some period of probation. But what matters is whether it actually does include a period of probation.
What I do know is this (being repetitive): If the final disposition includes a period of probation that affects a PR's path to citizenship in two ways:
-- the PR is PROHIBITED from a grant of citizenship while the PR is on probation, and
-- the period of time a PR is on probation is counted as time ABSENT from Canada
-- the period of time a PR is on probation is counted as time ABSENT from Canada
The first must be disclosed in response to Item 16 in the application form. The latter must be disclosed in completing the online presence calculation.
EFFORTS TO LOOK THIS UP:
What I know is what I said I know above. What I do not know is what the actual disposition was in your case.
But I also do NOT know what the disposition typically is in Canada. And I have tried to look this up . . . and, well, many websites I looked at do NOT get even some basics right (which is largely due to not updating the information given the new law which took effect last December, but they simply include ERRONEOUS information which means they are less than fully reliable), including some lawyer's websites, some community organization websites, and including Wikipedia. They all are NOT entirely current or correct.
As to probation they are all vague, remarkably vague.
In contrast, though, any news reports about high profile cases (like the one involving former Toronto mayor Rob Ford's sister) usually refer to a term of probation imposed as part of the sentencing. (Ford's sister got THREE years probation.) But it is unreliable to extrapolate much from isolated news reports about high profile cases. Nonetheless, such reports to some degree underlie my continuing impression, my "sense," my GUESS, that some period of probation seems likely.
Unfortunately the question straddles two rather disparate areas of law, criminal law and immigration/citizenship law. Lawyers with practices and expertise in one field can be remarkably ignorant of the other. Not uncommon to see websites maintained by criminal defense lawyers referring to the rights of "Canadian citizens" when what they are referring to are not the rights of only Canadian citizens, and indeed not only the rights of all Canadians, remembering that Canadian PRs are "Canadians" in Canadian law, but ALL persons in Canada, including Foreign Nationals, and even FNs without status in Canada. . . . they appear to be remarkably uninformed about the scope of the rights they purport to defend, at least insofar as immigration status is involved.
In any event, it can be risky to rely on the opinion of a lawyer with a practice and expertise in one field as to questions involving the other field. A good lawyer will know, because a good lawyer will make the effort to get informed before offering an opinion. But lawyers with practices oriented around criminal defense with a big part of that handling drinking and driving cases, and lawyers engaged in immigration law . . . and, while not relevant here so much, but also lawyers doing a lot of divorce law . . . tend to have closed silos of expertise and are not reliable sources of opinion in matters outside their respective silo. (Similarly for tax lawyers, patent lawyers, bankruptcy lawyers . . . but lawyers with practices in these fields tend to be more upfront about the scope of their services, or at least that is my impression, and will refer questions outside their field to more appropriate lawyers for those questions.)
So I am not sure who you can get a reliable opinion from in regards to your personal case. Personally I would try to find one of the "good" lawyers, and then be careful with what the lawyer says, making sure it fits in with what you do know. Or, again, maybe you could ask a clerk of the court where your case was handled . . . asking "was I on probation?" or such.
By the way, if you learn more about how this works, what to look for, or such, please share what you learn. This should be an easy question. Be nice to have a better answer, since this is an all too common question.