PR card renewal involving criminal case
- Thread starter ap7
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PRs applying for a new PR card are not asked to disclose criminal charges. The application might trigger inquiry anyway since it will trigger a GCMS check, which includes (at the least) a criminal name-record check (looking at information in databases derived from RCMP and U.S. NCI/FBI databases, and probably Interpol as well).
Since your charges were already considered attendant a citizenship application, the information is already known and on file, so to say, in your GCMS records.
There is a big difference in terms of impact however. Pending charges for hybrid offences constitute a prohibition. Pending criminal charges in Canada (different scene if charged outside Canada) do not directly affect a PR's status (unless in the range of terrorism or grounds for inadmissibility based on security risks).
Whether the charge could trigger inadmissibility proceedings leading to the loss of PR status depends first on whether there is a conviction.
WHAT MATTERS: What matters, for purposes of whether the charge constitutes grounds to determine the PR is inadmissible for serious criminality is whether there is a conviction, and if there is a conviction
(1) whether there is a term of imprisonment for more than six months, OR
(2) if the underlying charge could result in imprisonment for 10 years or more if prosecuted by indictment (even if prosecuted summarily and resulting in NO jail time at all).
So what really matters is the precise charge against you and whether or not there is a conviction.
Some examples:
Almost all sexual offences against a person are indictable offences with maximum penalties of imprisonment for ten or more years, so even if prosecuted as a summary offence, a conviction meets the definition of serious criminality and is grounds for loss of PR status and deportation.
In contrast, simple assault (see Section 265 in the Criminal Code) is an indictable offence, so will constitute a prohibition for citizenship purposes, both while pending and if there is a conviction (for four years from date of conviction), even if prosecuted as a summary offence, but since the maximum term of imprisonment is less than ten years, conviction will not make a PR inadmissible UNLESS they are actually sentenced to a term of imprisonment for at least six months and a day (more than six months).
LAWYER UP . . . no doubt about it, should have done it by now . . . LAWYER UP!
These are serious enough charges (no matter how innocent you are) to be taken very seriously, and for which it would be prudent to hire competent legal counsel, a good criminal defense lawyer.
The potential consequences as to your immigration status, if convicted of criminal harassment (even if prosecuted summarily resulting in a small fine, no jail or even probation), are serious enough that it would ALSO be prudent to hire a good immigration lawyer. (Note "free" consultations are at best only worth what was paid for them) Emphasis on a good immigration lawyer. A criminal defense lawyer might not adequately understand the potential collateral consequences on immigration status.
Note: I am guessing that both are being prosecuted as summary offences, not by indictment. If there is a conviction, and especially if there is a conviction for criminal harassment, this is still serious even if the penalty imposed is minor.
For purposes of the impact on your immigration status, in particular, what matters is whether there is a conviction. Again, this is especially true for the criminal harassment charge.
That said, in terms of being aware of what is at stake overall, if the Crown is proceeding by way of an indictment, as to either of these, that would likely mean there are some very serious consequences at stake.
Generally I would not mention the latter. From your first post and the reference to "they considered the charges to be indictable offense" being about denying the citizenship application, I interpreted "they" to be IRCC, and considering the charges to be indictable is based on immigration law applicable to hybrid offences. Suggesting the offences charged are not being prosecuted by indictment. But it appears you might not be seeing things all that clearly. You say the charges "are false against me, so there are no proofs," but what is obviously clear is that there is indeed evidence against you.
Time to be objective. When facing a charge which can result in prison for ten years, and DEPORTATION from Canada, not just a damn good idea to be honest with yourself about what you are up against, but time to be really clear about things. So, let's be clear, let's be honest: There must be some proof, obviously, if such serious charges are still pending. This is Canada, not Russia. Generally the "Crown" (the prosecution) will NOT prosecute false allegations. Sure, the Crown can and sometimes does prosecute those who are not guilty, perhaps even on occasion the innocent, BUT that does NOT happen if there is, as you say, "no proofs" of the offence.
Moreover, most of the anecdotal reporting about having charges pending seems to suggest that IRCC often (perhaps usually) suspends processing the citizenship application, putting making a decision on hold pending the outcome of the criminal case. The anecdotal reporting is too sparse to draw firm conclusions about this, so it is not for sure, but it appears that something about your situation might be more serious, serious enough for IRCC to make a final decision based on pending charges rather than waiting to see the outcome of the criminal case.
Meanwhile, save the protests of innocence for trial. And hope there is no trial. Seriously. Very seriously. You need legal recourse not sympathy. It does appear you might be failing to recognize what you are up against. I am not very much acquainted with how things actually work, in practice, in the Canadian criminal justice system, but no particular expertise necessary to recognize that the criminal harassment charge indicates this is more serious than a he-said/she-said domestic dispute scenario.
Edit to add, with a strong disclaimer to NOT rely on this (just something to consider for plea bargaining purposes): A conviction for an "uttering threats" offence, which is Section 264.1 in the Criminal Code, would probably be better for immigration purposes than any conviction at all for criminal harassment. I have no idea what the chances are of getting the Crown to amend the charge to uttering threats, but if the Crown is insisting on a conviction for more than simple assault, that is it demands a conviction for what it alleges was criminal harassment, but is willing to file an amended charge for uttering threats, a conviction for this would not meet the definition of serious criminality (again, as long as not jailed for more than six months).
Some More or Less Technical Observations:
A conviction for assault, the offence prescribed by Sections 266, as defined in Section 265 in the Criminal Code, is a hybrid offence and would constitute a prohibition for citizenship for four years from the date of conviction. It alone would not have an impact on your PR status unless you were jailed for six months (technically six months plus a day).
The criminal harassment offence, as prescribed by Section 264 in the Criminal Code, is the more serious one in terms of potential legal consequences. It too is a hybrid offence (meaning it can be prosecuted as an indictable or summary offence). Even if prosecuted as a summary offence for which there is no jail at all and only a small fine, a conviction would meet the definition of "serious criminality" and be grounds for finding you inadmissible and terminating your PR status, subjecting you to deportation. This is because if prosecuted by indictment a term of imprisonment could be imposed for a term of ten years, and that meets the definition of serious criminality.
I have NO idea, NONE, how IRCC approaches PRs in regards to single offences of this nature. As noted, a conviction for criminal harassment meets the definition of serious criminality, BUT it is not at all clear if CBSA/IRCC is likely to pursue inadmissibility proceedings for this in the absence of either some aggravating circumstances (serious bodily injury for example) or multiple offences. So this would be something to talk to an immigration lawyer about.
Code References:
For reference, the relevant Criminal Code provisions regarding criminal harassment and assault charges, Sections 264, 265, and 266 in the Canadian Criminal Code, are here: https://laws-lois.justice.gc.ca/eng/acts/C-46/page-38.html#h-120223
Serious criminality which will make a Permanent Resident inadmissible is prescribed by Section 36(1) IRPA (Immigration and Refugee Protection Act) which is here: https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-6.html#docCont and this includes the particular provision which makes a conviction for a hybrid offence a conviction for an indictable offence even if prosecuted summarily, which is Section 36(3)(a) IRPA.
The relevant, applicable prohibitions for citizenship are found in Sections 22(1) and 22(2) of the Citizenship Act, which are here: https://laws-lois.justice.gc.ca/eng/acts/C-29/page-5.html#docCont . . . noting that any conviction under sections 264 or 266 in the Criminal Code will mean being prohibited from citizenship for at least FOUR years from the date of the conviction . . . no matter how minimal the punishment is.
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