Hello, fellow practitioners! Today’s column deals with the prohibitions found in the Citizenship Act regarding those with Canadian criminal convictions.
Question:
I have an interesting case and would be happy to get some insights. In 2017, my client was found guilty of assault and uttering threats to cause death or bodily harm. The Crown decided to charge him summarily. He received a conditional discharge and twelve months of probation. Now he wants to apply for citizenship.
I did my research and found that under sections 20 and 22 of the Citizenship Act, certain applicants are prohibited to apply if the person has been convicted of an indictable offence within the last four years.
His charge is not considered an indictable offence. It is considered a summary offence according to the court document I have in hand. However, a very helpful colleague mentioned that “Assault is a hybrid offence, meaning that it can be prosecuted by way of indictment or summary. Therefore for immigration purposes, it is considered indictable, regardless of whether it was prosecuted summarily”.
Based on my research, if he complied with the conditions, then he was not convicted and should not wait until a conditional discharge disappears from his record (three years) to apply for citizenship.
Answer:
Before we answer these questions, let’s take a look at the relevant Citizenship Act prohibitions regarding criminal convictions in Canada. For the sake of simplicity, I will exclude the provisions relating to sentences served outside of Canada and the specific provisions relating to national security threats, crimes against humanity, war crimes, et cetera. Section 22 states:
22 (1) Despite anything in this Act, a person shall not be granted citizenship under subsection 5(1), (2) or (4) or 11(1) or take the oath of citizenship
(a) while the person, under any enactment in force in Canada,
(i) is under a probation order,
(ii) is a paroled inmate, or
(iii) is serving a term of imprisonment;
[…]
(b) while the person is charged with, on trial for, subject to or a party to an appeal relating to an offence under subsection 21.1(1) or 29.2(1) or (2), or an indictable offence under subsection 29(2) or (3) or any other Act of Parliament, other than an offence that is designated as a contravention under the Contraventions Act;
[…]
(2) Despite anything in this Act, but subject to the Criminal Records Act, a person shall not be granted citizenship under subsection 5(1), (2) or (4) or 11(1) or take the oath of citizenship if the person has been convicted of an offence under subsection 21.1(1) or 29.2(1) or (2), or an indictable offence under subsection 29(2) or (3) or any other Act of Parliament, other than an offence that is designated as a contravention under the Contraventions Act,
(a) during the four-year period immediately before the date of the person’s application; or
(b) during the period beginning on the date of the person’s application and ending on the date on which the person would otherwise be granted citizenship or take the oath of citizenship.
There are two issues that are posed by the question above:
1) Are the Citizenship Act prohibitions, which refer to “indictable” offences, applicable to the client because his charges for hybrid offences were proceeded with summarily by the Crown?
2) Is a conditional discharge a conviction?
We will deal with each in turn.
Question #1
Your colleague is right to note that with respect to criminal inadmissibility under the Immigration and Refugee Protection Act (“IRPA”), hybrid offences are deemed to be indictable. Subsection 36(3) of the IRPA states:
36 (3) The following provisions govern subsections (1) and (2) [the subsections on serious criminality and criminality]: (a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily; […]
However, this provision only appears in the IRPA, not the Citizenship Act.
So then what rules apply to the Citizenship Act?
There are no provisions in the Citizenship Act, or its regulations, that are similar to subsection 36(3) of the IRPA. In the absence of any deeming provision, a hybrid offence where the Crown elects to proceed summarily, is a summary offence for citizenship purposes.
Interestingly, there is one case I was able to find with very similar facts. In Ahmed,[1] the applicant was also charged with assault and uttering threats. The judge relied on case law in the criminal context in order to find that the character of a hybrid offence changed from indictable to summary conviction upon the Crown election to proceed summarily. Consequently, at the time of the appellant’s citizenship hearing, he was no longer facing charges in relation to an indictable offence and the statutory bar in section 22(1)(b) of the Citizenship Act did not apply.
Therefore, hybrid offences are not deemed indictable for citizenship purposes like they are for inadmissibility purposes under the IRPA. A hybrid offence becomes indictable for citizenship purposes only if the Crown elects to proceed by way of indictment.
Question #2
Even if your client had committed an indictable offence, but subseqeuently received a conditional discharge, then he would still be able to apply for citizenship once his probation was finished. You are correct that a conditional discharge is not a conviction. This is obvious from a plain reading of the Criminal Code provision that allows for conditional discharges:
730 (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).
[…]
(3) Where a court directs under subsection (1) that an offender be discharged of an offence, the offender shall be deemed not to have been convicted of the offence except that […]
It should be noted that probation orders always accompany conditional discharges – that’s what makes them conditional. So just because a person hasn’t been convicted, they could still be caught by s.22(1)(a)(i) for being under probation. In your case, it appears the probation would have already expired sometime in 2018, so it appears your client is in the clear.
There are also a number of cases which confirm that a conditional discharge is not a conviction. In Re Tse,[2] it was held that a person who has received a conditional discharge and met the conditions in question must be deemed not to have been convicted of the offence for purposes of the Citizenship Act.
In Re Bakayoko,[3] the applicant pleaded guilty to the indictable offence of assault and was granted a conditional discharge with two years of probation. Joyal J. held that the conditional discharge did not amount to a conviction under s. 22 of the Citizenship Act. However, the applicant was still under the probation order so his discharge was in suspense. Consequently, he could not be granted citizenship. Joyal J. also pointed out that the prohibition in s. 22(2)(a) would run from the date of the conviction and not from the end of the probation period.
In the more recent case of Al-Darawish,[4] the Court held:
11 The Applicant also pled guilty to a summary offence of assault under section 266 of the Criminal Code of Canada. He was given a conditional discharge and made subject to a probation order on July 20, 2010. The conditional discharge means he is deemed to have not been convicted of a criminal offence upon successfully completing probation.
[…]
21 Paragraph 22(1)(a)(ii) clearly precludes a grant of citizenship while an applicant is under a probation order. It states: “Despite anything in this Act, a person shall not be granted citizenship under subsection 5(1), (2) or (4) or 11(1) … while the person is … under a probation order.”
Therefore, it appears that your client is not barred from applying for citizenship because he did not receive a conviction, the offence was not indictable, and his twelve-month probation seems to be over. It is not necessary to wait for the conditional discharge to be wiped from your client’s record, as a conditional discharge is not a conviction.
[1] Ahmed v Canada (Minister of Citizenship and Immigration), 2009 FC 672. [2] Tse (Re), [1988] F.C.J. No. 1151 [Re Tse]. [3] Bakayoko (Re), (FCTD), [1993] FCJ No 7 [Re Bakayoko]. [4] Al-Darawish v Canada (Minister of Citizenship and Immigration), [2011] FCJ No 1211, 2011 FC 984.