Canada stiffens sentences for drunk driving, raising new immigration concerns
New amendments to the Criminal Code of Canada mean foreign nationals and permanent residents convicted of impaired driving can now be deemed inadmissible and could face deportation.
This has the potential to effect individuals who are looking to immigrate to Canada permanently as well as those seeking entry to Canada merely on a temporary basis.
Given Royal Assent on Thursday, the amendments increase the maximum sentence for impaired driving from five to 10 years, thereby elevating the offence into the category of “serious criminality.”
Section 36 (1) of Canada’s Immigration and Refugee Protection Act states that a permanent resident or foreign national is deemed inadmissible to Canada if he or she is convicted of an offence that is considered serious criminality.
36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;
(b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or
(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.
In a submission to the Senate of Canada during its study of the Act containing the amendments, known as Bill C-46, the Canadian Bar Association expressed concerns that a single impaired driving offence in Canada – regardless of the sentence imposed – “could cause a permanent resident to be issued a deportation order and lose permanent resident status.”
The CBA also warned that a permanent resident could be subjected to permanent residency status proceedings and a deportation order for offences committed outside Canada “regardless of the sentence imposed by the foreign court and even if no sentence was imposed.”
The CBA called the consequences “severe” and “unnecessary” and the Senate later introduced an amendment that would have downgraded impaired driving from serious criminality for permanent residents and foreign nationals sentenced to less than six months.
This amendment, however, was rejected based on the Liberal government’s view that it “indirectly amends the immigration legal framework through a criminal law statute and would treat impaired driving offences differently from other serious criminal offences.”
Canada’s Minister of Immigration, Refugees and Citizenship, Ahmed Hussen, meanwhile, has pledged to address the immigration consequences of designating impaired driving serious criminality.
Foreign Nationals
With an impaired driving offence now considered serious criminality, obtaining so-called deemed rehabilitation will not be possible, regardless of when the offence was committed.
Deemed rehabilitation is the process by which a person who is inadmissible for Canadian immigration on grounds of criminality may still be permitted to enter Canada. However, it only applies to individuals who have a single offence punishable by a sentence of less than 10 years in Canada.
Individuals who have previously been assessed and determined not to be inadmissible, or who have previously been granted entry with a record, might now also be inadmissible and stand the chance to be denied entry to Canada.
Given that the amendments only take effect in 180 days, individuals who would be inadmissible under the changes could still apply for Temporary Resident Permit or rehabilitation before they come into effect. This is important because as a general rule it is usually more difficult to be approved for either of these applications when they are being submitted in order to address serious criminality.
Government fees for processing a rehabilitation request for an impaired driving offence will also jump from CAD $200 to CAD $1,000 when the law comes into effect, adding further impetus to get this resolved sooner rather than later.
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