Hello,
I’m currently facing two summary offence charges, and my lawyer is hoping to reach a resolution soon. I would like some guidance on what outcome we should prioritize to maintain a clean record.
My lawyer’s first goal is a withdrawal, but if that’s not possible, should we focus on a peace bond, absolute discharge, or conditional discharge?
I already have my RCIC recommendation and need to submit my file to the federal level, but I’m waiting for my case to be resolved. Since my recommendation expires in 6 months, I’m wondering whether I should wait or if I can proceed with lodging my file now.
Any advice would be appreciated.
Overall:
It is probably not a good idea to apply for anything while charges are still pending . . . unless a reputable, reliable immigration lawyer says otherwise after fully considering the details in YOUR particular situation.
Any disposition that resolves the charges without any conviction will be OK once that resolution results in a court record documenting it. Getting the charges withdrawn, or getting an absolute discharge, is the best solution, but most peace bond and conditional discharge resolutions will also work, noting, however, the actual formalities of these can vary and some versions can mean the charges are in effect still pending until the terms of the peace bond or terms of the conditional discharge are met.
Longer Explanation and Observations:
These are not "
rare circumstances," but for a Foreign National (FN), navigating criminal charges in Canada is complex and tricky, so as
@canuck78 otherwise observed, best to have an immigration lawyer advising you or assisting the lawyer handling the criminal matter.
This is not the part of the forum for your question, by the way, since this part is for immigrants who are already Canadians, that is those who already have Permanent Resident status. There are, for example some big differences in what results in inadmissibility for a FN compared to non-citizen Canadians (PRs), and in what being inadmissible means.
It is probably NOT a good idea to make a PR application with the charges pending. You will need to disclose them. IRCC would almost certainly be aware of them even if you did not disclose them. And just the fact they are pending would likely block your application. At the least: best to not proceed with the application while the criminal charges are pending UNLESS you get totally clear advice from a reputable, reliable immigration lawyer saying to go ahead.
Some observations about how and why these situations are complex enough to need assistance from a lawyer with solid immigration experience handling criminal inadmissibility issues:
The main thing is to avoid a conviction. Canada has a remarkably lenient criminal justice system with several paths to resolve some criminal charges without resulting in a conviction. In addition to withdrawal or an absolute discharge, which will do the trick (if you can obtain a withdrawal or an absolute discharge, that will do it, no need to get help from an immigration lawyer, your status should not be at risk) you also mention the
labels of a couple more common ways of resolving charges without there being a conviction:
peace bond, conditional discharge. I call these labels because the form and execution of these vary considerably, meaning not all peace bonds are the same, not all conditional discharge resolutions are the same. And, importantly, there is some unevenness in how particular courts implement these and make a record of the disposition. Whereas for you, it will be important for the court's record to clearly document the outcome, an outcome that shows there was no conviction and no charges pending. This is mostly the criminal defense lawyer's bailiwick, and a good defense lawyer will make sure the formalities of the disposition meet your immigration needs . . . if it is possible, for the lawyer to negotiate a disposition that avoids a conviction.
In some criminal cases a peace bond or conditional discharge can result in the charges being fully resolved and immediately reflected in the court record as discharged, no conviction, the charges no longer pending. Almost as good as the charges being withdrawn or absolutely discharged. But sometimes the case is more or less suspended or in abeyance, and the discharge does not happen until the terms of the peace bond or conditional discharge are completed, which can take months, a year, or possibly longer. The latter could be a timing problem for you.
A particularly tricky snag: Many, including quite a few lawyers not well versed in immigration issues, think of "
summary offence charges" based on how the case is being prosecuted, typically thinking of summary offence charges as those that are prosecuted summarily even if they could be prosecuted by way of indictment.
BEWARE that if the underlying charge could have been prosecuted by indictment, IRCC does NOT consider it to be a summary offence even if it is prosecuted as a summary offence. A conviction of any of these so-called "
hybrid" offences (which most of the offences in the Criminal Code are) will result in a FN being inadmissible, precluding eligibility for PR in addition to causing the loss of temporary resident status.
If your underlying charges are hybrid offences (and again most criminal charges are), it is especially important there is no conviction. Again, even if prosecuted as a summary offence,
section 36(3)(a) IRPA requires IRCC to deem the charge to be an indictable offence and a single conviction will render a FN inadmissible.
