I have been asked many times how criminality affects applying for a Canadian citizenship. The public is puzzled on what to do, if one had or still has criminal charges,- whether to apply or wait for a citizenship. The key is to understand correctly what a “charge”, a “criminal conviction”,”withdrawn”, “an absolute or conditional discharge” and what a”diversion” is. Also, words such as “indictable” and “summary” are something that an accused (a person who was brought into criminal courts’ system) very often cannot understand or differentiate.
I will explain here what those words mean and how it might impact your ability to apply for a Canadian citizenship.
“Charge” means a situation when you were given a Notice of Appearance to court by the police when the alleged crime occurred. If you are given a Notice to Appear at your local police department for taking fingerprints and then commanded (by the Notice) to show up at your local court house (criminal court) then we can say that criminal charges have been brought against you by the prosecution (the Crown in criminal courts in Canada). If you received your Notice to Appear and have been in court several times and the matter is not resolved yet, then you still have criminal charges. When is the matter resolved? If you are called to the court and the presiding judge says that the prosecution either withdrew charges against you, or the judge (usually after you enter a guilty plea) pronounced that you received an absolute discharge (the charges against you in this case are “withdrawn” by the court, however you have to understand that the difference between withdrawal by the prosecution and the court is that the prosecution, by withdrawing of your charges, shows that they will not proceed with pursuit of charges before the court, and, if the court grants you an absolute discharge, it means that the court, despite the prosecution, is of the opinion that it would not punish you with criminal conviction.
Therefore, if you are charged with the crime, you have to wait until the matter is resolved before you proceed with your application for a Canadian citizenship. If you were absolutely discharged, or your charges were withdrawn, you are now clear and can apply for a citizenship. Be careful in reading the questions on the citizenship application. If you are asked “whether or not you have been charged with any criminal offence” you have to say “yes” even though the charges were withdrawn or you have gotten an absolute discharge. If the question is “whether or not you have an outstanding criminal charges” the answer will be “no”, if the matter has been resolved.
Sometimes, criminal charges are resolved in a conditional discharge meaning that the court gave you some time to rehabilitate yourself. Let’s say you received a conditional discharge and you have to keep peace and be of good behavior for 6 months. If this is the case, your criminal matter will be resolved completely after those 6 months after which you may apply for a citizenship.
Sometimes, the application form asks whether or not you have been charged with an indictable offence. If you were charged and convicted on Theft Under offence, your answer will be “no” as Theft Under is not an indictable offence, but a summary one. Indictable offence is a serious crime and a summary offence is of less gravity.
The most important is to carefully read all questions on the application form when applying for either Canadian citizenship or permanent/temporary residence because, if the answer does not reflect reality, you may be refused on the application for misrepresentation and it would not matter that the mistake was an “innocent” one.
And of course, it is always a good idea to obtain legal advice from an experienced licensed paralegal before proceeding with your application.