Amendments to the Canadian criminal code take effect December 18 that will carry more severe immigration-related consequences for permanent residents and foreign nationals convicted of an impaired driving offence.
As of December 18, impaired driving will be considered a serious criminal offence, entailing an increased maximum sentence from five to 10 years.
This has several implications under Canada’s Immigration and Refugee Protection Act (IRPA), which 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.”
Chief among these implications are:
Permanent residence in jeopardy?
A major impact of the amendments is the effect they could have on the immigration status of Canadian permanent residents.
The elevation of impaired driving offences to serious criminality means permanent residents could be in jeopardy of losing their permanent resident status and could potentially face deportation if they are convicted of an impaired driving offence committed on or after December 18, 2018, in Canada or overseas.
In a statement to CIC News, Immigration, Refugees and Citizenship Canada (IRCC) said that the new rules mean “most impaired driving offences could lead to a finding of inadmissibility for serious criminality under Canada’s immigration laws.”
This includes cases where “it’s a first-time offence, no one is hurt and the sentence imposed is the minimum fine,” IRCC said.
Earlier this year, Canada’s Minister of Immigration, Refugees and Citizenship, Ahmed Hussen, said the government recognized there could be “disproportionate immigration consequences for non-Canadians” as a result of the amendments.
Hussen said his department would look into more comprehensive changes to immigration policies and take appropriate action to mitigate the resulting immigration consequences.
In its statement to CIC News, IRCC said Hussen is still looking into these issues with members of Canada’s Senate and stakeholders.
IRCC also said there are factors already in place that could prevent a finding of inadmissibility and a removal order for permanent residents, namely the limited discretion afforded Canada Borders Service Agency and IRCC officers and, in certain cases, access to the Immigration Appeal Division (IAD) of Canada’s Immigration and Refugee Board.
On the issue of officer discretion, IRCC said officers can decide “whether to pursue enforcement action, including whether to complete an inadmissibility report, and whether to refer that report to the [IAD] for an admissibility hearing.”
Factors that go into such decision include prior criminality, the sentence imposed and the circumstances of the particular incident.
“That said, cases involving serious criminality are treated with the utmost seriousness,” IRCC said.
As to access to the IAD, IRCC said permanent residents who are convicted of an offence in Canada and who received a prison sentence of less than six months can appeal a finding of inadmissibility and a removal order.
IRCC said the IAD is “able to consider humanitarian and compassionate grounds, including best interests of a child.”
Permanent residents found inadmissible for an offence committed outside Canada or who received a prison sentence of six months or more for a conviction in Canada cannot appeal a finding of inadmissibility and a removal order to the IAD, IRCC said in its statement.
For offences committed on or after December 18 either in Canada or abroad, individuals charged with impaired driving will never achieve what’s called “deemed rehabilitation.”
Deemed rehabilitation is a concept whereby people with a single, non-serious offence on their record will no longer be considered inadmissible to Canada after a period of 10 years has elapsed from the completion of their sentence.
Because impaired driving will be considered serious criminality as of December 18, deemed rehabilitation will never take effect for those who are caught driving while impaired on or after this date. Such individuals will be obligated to apply for criminal rehabilitation if they hope to resolve the fact that they are considered inadmissible to Canada.
The government fee for an application for criminal rehabilitation is also set to increase as a result of the amendments coming into force, from $200 CAD to $1,000 CAD.
Stigma of serious criminality
A subtler effect that the amendments might have on criminal rehabilitation pertains to the connotation of serious criminality.
Immigration officers have a lot of discretion in the assessment of criminal rehabilitation applications and the severity of the offence is often an important factor that is considered in their assessment. The classification of an offence as serious could play a role in an immigration officer concluding that an individual with such an offence on their record is not a good candidate for criminal rehabilitation, and might lead to a refusal as a result.
Regardless of the date of commission, impaired driving is always taken seriously by Canadian immigration authorities. Anyone with such an offence on their record would be wise to consult with an experienced Canadian immigration attorney prior to entering Canada.
Stephen Sherman is a Canadian immigration attorney with the Campbell, Cohen Immigration Law Firm in Montreal. He specializes in resolving issues relating to criminal inadmissibility to Canada.
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