Last Updated on August 30, 2010 by Steven Meurrens
A person who is subject to a stay of proceedings will generally be unsuccessful in applying for Canadian citizenship.
Section 579 of the Criminal Code of Canada provides that the Crown may, at any time before judgment, enter a stay of proceedings against an individual charged with an offense. Such proceedings may be commenced within one year at the discretion of the Crown.
Attorney General may direct stay
579. (1) The Attorney General or counsel instructed by him for that purpose may, at any time after any proceedings in relation to an accused or a defendant are commenced and before judgment, direct the clerk or other proper officer of the court to make an entry on the record that the proceedings are stayed by his direction, and such entry shall be made forthwith thereafter, whereupon the proceedings shall be stayed accordingly and any recognizance relating to the proceedings is vacated.
Recommencement of proceedings
(2) Proceedings stayed in accordance with subsection (1) may be recommenced, without laying a new information or preferring a new indictment, as the case may be, by the Attorney General or counsel instructed by him for that purpose giving notice of the recommencement to the clerk of the court in which the stay of the proceedings was entered, but where no such notice is given within one year after the entry of the stay of proceedings, or before the expiration of the time within which the proceedings could have been commenced, whichever is the earlier, the proceedings shall be deemed never to have been commenced.
R.S., 1985, c. C-46, s. 579; R.S., 1985, c. 27 (1st Supp.), s. 117.
In Zhan v. Canada (Citizenship and Immigration) 2010 FC 822, Justice Crampton examined whether a criminal stay of proceedings prevents someone from becoming a Canadian citizen pursuant to s. 22(1)(b) of the Citizenship Act. Section 22(1)(b) provides that:
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
(b) while the person is charged with, on trial for or subject to or a party to an appeal relating to an offence under subsection 29(2) or (3) or an indictable offence under any Act of Parliament, other than an offence that is designated as a contravention under the Contraventions Act; [Emphasis Added]
The applicant had applied for Canadian citizenship while she was the subject of a stay of proceedings with respect to criminal charges against her. She submitted that this stay put her in the same position as a person who had never been charged with an offense, and that s. 22(1)(b) did not apply.
To support her contention, the applicant relied on numerous criminal cases that seemed to support her position. For example, in R v. Smith (BCCA, 1992), the Court held that:
When the stay has been entered there is no contest between the individual and the state. The prosecution has come to an end. The position of the accused as against the state is the same as if he had never been charged.
Justice Crampton, however, held that the principles that guide criminal jurisprudence are not the same as those that guide immigration. Specifically, he found that while the adverse consequences of a rejection of a citizenship application can be significant, these consequences cannot be equated with the deprivation of Charter rights. Noting that s. 579(2) of the Criminal Code provides for the suspension of criminal charges, and not the termination or nullification of such charges, he found that interpreting s. 22(1)(b) of the Citizenship Act in a manner which excludes charges that are subject to stays of proceedings would result in scenarios where individuals were granted citizenship, only to have the stay of proceeding removed and charges re-instated.
Accordingly, the applicant’s judicial review was dismissed.
However, the decision isn’t all bad news for individuals who want to apply for citizenship but are subject to a stay of proceedings. Justice Crampton favorably cited a case where the applicant who had a stay of proceedings obtained a letter from the Crown advising her that the Crown did not intend to take any further proceedings against her. He found that this letter rendered the charge a nullity for practical purposes, and this meant that s. 22(1)(b) of the Citizenship Act did not apply.
Thus, it appears that if an individual is able to obtain such a letter from the Crown, then they may apply for Citizenship.
[Note] In discussing the jurisprudence Justice Crampton also noted that where an individual is charged with a hybrid offense, and where the Crown decides to proceed summarily in respect of that offense, then s. 22(1)(b) will not apply because the decision to proceed summarily means that the offense is not indictable pursuant to s. 22(1)(b).