Canada stiffens sentences for drunk driving, raising new immigrant inadmissibility concerns

New amendments to the Criminal Code of Canada mean foreign nationals and permanent residents who commit the offence of impaired driving as of December 18, 2018, will be deemed inadmissible and could face deportation.

This has the potential to affect 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 June 21, the amendments will increase the maximum sentence for impaired driving from five to 10 years once they come into force, thereby elevating offences committed as of December 18, 2018, 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.

Permanent Residents

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

Once the changes come into effect and an impaired driving offence becomes serious criminality, obtaining so-called deemed rehabilitation will not be possible for offences committed after December 18, 2018.

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.

Government fees for processing a rehabilitation request for an impaired driving offence committed after December 18, 2018, will jump from CAD $200 to CAD $1,000.

CORRECTION: The original version of this article published on June 22 misstated that foreign nationals and permanent residence holders convicted of impaired driving "can now be deemed inadmissible" under the new amendments and that "deemed rehabilitation will not be possible, regardless of when the offence was committed." In fact, foreign nationals and permanent residence holders convicted of impaired driving would only be deemed inadmissible and not be eligible for deemed rehabilitation if the offence is committed after the amendments come into force on December 18, 2018. Only impaired driving offences committed after this date will be considered serious criminality. The amendments will not apply to offences committed before December 18, 2018.