With the legalization of marijuana comes stricter driving laws, which could have an impact on immigrants and visitors

The possession of marijuana for personal use has been legalized in Canada. But, along with that, there are new laws on transportation-related offences that could impact visitors and immigrants in Canada.

On June 21, 2018, Bill C-46, the companion legislation to Bill C-45, The Cannabis Act, received Royal Assent. While The Cannabis Act essentially legalized the possession of regulated marijuana for personal use in Canada, Bill C-46 focuses on the transportation-related offences in Canada’s Criminal Code. Those include drinking and driving, dangerous driving, fleeing the scene of an accident, refusing to give a breathalyzer, fleeing the police and operating a vehicle while prohibited from doing so.

Bill C-46 repeals all existing Criminal Code provisions regarding these offences and replaces them with offences that have slightly different wording and new maximum sentences.

The most significant change of Bill C-46 from an immigration perspective is that drinking and driving, dangerous driving, fleeing the scene of an accident, refusing to give a breathalyzer, fleeing the police and operating a vehicle while prohibited from doing so will all become “serious criminality” as opposed to “general criminality” under the Immigration and Refugee Protection Act. This is because the maximum term of imprisonment for these offences is being increased from five to 10 years.

This change will have several profound impacts on permanent residents and foreigners who have convictions for any of these offences.

Many individuals who could previously travel to or stay in Canada will become inadmissible for “serious criminality.” And permanent residents who commit any of the above offences could be deported.

(See sidebar at end of this article to better understand the difference between general and serious criminality).

Immigration consequences of ‘serious criminality’

Let’s consider the example of a single DUI conviction (note:  the consequence is the same for all of the offences described above).

Previously all foreigners with a single DUI conviction could generally not enter Canada until they demonstrated to the Canadian government that they were rehabilitated. If 10 years had passed since the completion of the sentence with no further criminal activity, they were deemed to be rehabilitated. As a result of Bill C-46, there will no longer be deemed rehabilitation for a single DUI offence. An American with a single DUI from 40 years ago, for example, will have to provide extensive paperwork to the Canadian government to demonstrate he is rehabilitated.

Second, previously a permanent resident who received a single DUI conviction would only face deportation proceedings if they were sentenced to six months or more. As a result of Bill C-46, permanent residents will face deportation proceedings for a single DUI conviction. This will be the case regardless of the criminal sentence that the immigrant receives in criminal court. In other words, a permanent resident who receive a fine and probation for a first DUI offence will now also face deportation.

Third, permanent residents who receive a single DUI conviction outside of Canada will now face deportation proceedings. Indeed, a conviction won’t even be necessary for deportation. Canadian immigration officials simply have to have reason to believe that the permanent resident drove drunk outside of Canada to commence deportation.

Finally, if a Canadian tries to sponsor a spouse or common-law partner to immigrate to Canada, and that person has a single DUI conviction, then if a visa officer refuses the immigration application because of the DUI the family will have no ability to appeal the decision.

The disproportionate impact of Bill C-46 on immigrants

During Parliamentary debate about Bills C-45 and C-46, it was initially unclear whether the government was aware of their immigration consequences. The suspicion that the government was not aware existed because, while there was some chatter amongst immigration stakeholders, no Parliamentarians addressed Bill C-45’s immigration consequences.

This notion was dashed, however, when the Liberal Government of Canada rejected two Senate amendments (one for Bill C-45 and one for Bill C-46) that would have excluded certain offences above from constituting serious criminality.

In rejecting the Senate amendments, Minister of Immigration, Refugees and Citizenship Canada Ahmed Hussen wrote to Canada’s Senate that:

“As you are aware, our Government is committed to striking the right balance between making cannabis legally available to adults and protecting the health and safety of all Canadians, including young people. The stiff penalties included in Bills C-45 and C-46 aim to deter criminal activity and to keep our streets safe. At the same time, I appreciate your efforts to highlight the disproportionate immigration consequences that could result after these provisions come into force.

I would like to assure you that I am committed to carefully considering and addressing the immigration consequences of Bills C-45 and C-46. My department is examining the tools within my authority to mitigate immigration consequences, including discretionary tools. Officials will also be proactively informing the public, including permanent residents, to make them aware of the possible immigration consequences for engaging in prohibited cannabis-related criminal activities as well as impaired driving involving drugs or alcohol.

While I agree with the spirit of the proposed immigration-related amendments, I believe it is important to address the immigration consequences in a more comprehensive manner. By taking a more holistic approach, we will be able to consider how these new penalties affect all categories of immigrants including permanent residents with inside and outside Canada offences, as well as temporary residents. We will also be able to ensure that the approach is consistent with the overall framework for serious criminality, in the Immigration and Refugee Protection Act, rather than carving out exemptions for certain offences.

To this end, I am committed to working with Senators and stakeholders to explore more comprehensive changes to immigration policies and take appropriate action that will effectively mitigate the immigration consequences that result from Bills C-45 and C-46.”

In other words, while the government agrees that Bill C-46’s immigration consequences are disproportional, nothing is to be done until the Liberals develop a more comprehensive strategy of reforming general and serious criminality in general. It is not clear where in the development process the federal government is.

Overhauling general and serious criminality

There is no doubt that discouraging transportation-related criminal offences, and especially driving under the influence, is an important endeavour. According to the American Centers for Disease Control and Prevention, in 2016 Canada had the highest percentage of alcohol-related crash deaths (33.6 per cent) among 20 high-income countries (median 19.1 per cent).

However, as the Minister of Immigration, Refugees and Citizenship Canada himself notes, the immigration consequences of a criminal conviction can be very disproportionate to the severity of the offence. Should a person who 20 years ago was driving sober but who refused to give a breathalyzer to the police because of a misunderstanding of the law be denied entry to Canada because of that? Should a Canadian’s ability to live in Canada with her foreign spouse be refused because of a single DUI from 15 years ago, let alone their ability to appeal the refusal?

People make mistakes, and in the case of the above transportation offences that do not even result in accidents, it does not seem right that the immigration consequences would be so long lasting.

What is especially problematic is that this is the result of an immigration system that does not consider an individual’s actual actions and sentence, but rather how long a sentence an offence in Canada could have.

A few starting points in the Liberal government’s apparent planned comprehensive overhaul in how criminal immigration inadmissibility is determined might accordingly be to consider getting rid of the provision of serious criminality, which bases serious criminality on the maximum length of a sentence rather than the actual sentence received. Or, as the Senate recommended, essentially create a prescribed list of offences that while they have a maximum penalty of 10 years or more will not constitute serious criminality but rather general criminality. As well, to re-introduce appeal rights for Family Class applications that are refused for serious criminality and delegating the ability to process rehabilitation applications for serious criminality to port of entry officers.

The changes in Bill C-46 will come into force on December 21, 2018.

Understanding criminality: general versus serious

General criminality

Only foreign nationals can be inadmissible to Canada for general criminality. It applies if a foreign national has:

• been convicted in Canada of either a hybrid or indictable federal offence, or of two or more federal offences not arising out of a single occurrence
• been convicted outside Canada of an offence that, if committed in Canada, would constitute either a hybrid or indictable federal offence, or of two offences not arising out of a single occurrence that would result in the same
• committed an act outside of Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute either an indictable or hybrid federal offence.

A foreign national is inadmissible to Canada for general criminality until they either receive a pardon or demonstrate to Canadian immigration authorities that they are rehabilitated. They can’t submit a rehabilitation application until five years have passed since the completion of their sentence. If the foreign national only has one offence, then Canadian immigration law deems them to be rehabilitated, and admissible to Canada, once 10 years have passed since the completion of sentence.

Serious criminality

Both foreign nationals and permanent residence are inadmissible to Canada for serious criminality. Serious criminality applies if they have

• been convicted in Canada of a federal offence where the maximum term of imprisonment for the offence is at least 10 years
• been convicted in Canada of a federal offence and received a term of imprisonment of more than six months
• been convicted outside Canada that if it were committed in Canada would constitute a federal offence punishable by a maximum term of imprisonment of at least 10 years, or
• committed an offence outside Canada that if it were committed in Canada would constitute a federal offence punishable by a maximum term of imprisonment of at least ten years.

A permanent resident or foreign national will be inadmissible to Canada for serious criminality until they either receive a pardon or demonstrate to Canadian immigration authorities that they are rehabilitated.

Like with general criminality, individuals who are inadmissible to Canada for serious criminality are ineligible to submit a rehabilitation application until five years have passed since the completion of sentence. Unlike with general criminality, however, permanent residents or foreign nationals who are inadmissible for serious criminality can never be automatically deemed to be rehabilitated after a certain amount of time has passed.

Another important distinction between general and serious criminality applies to Canadians seeking to sponsor spouses or common-law partners. If a visa officer refuses the sponsorship application because of general criminality, then the family can appeal. If the application is refused because of serious criminality, then they cannot.

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