How Canada’s New Impaired Driving Penalties Will Impact Canadian Immigrants & Employers

December 19, 2018

By Mondaq |

On December 18, 2018, the maximum sentence possible for impaired driving (among other things) will increase as the result of amendments to Canada’s Criminal Code, introduced by Bill C-46. This tougher stance against impaired driving is welcome by many. However less welcome, and perhaps unintended, is the collateral damage to Permanent and Temporary Residents of Canada – and employers. The critical interplay between the Criminal Code and Canada’s Immigration and Refugee Protection Act (IRPA) means increasing the Criminal Code’s maximum possible sentence for impaired driving also escalates the offence from the “criminality” to the “serious criminality” level under IRPA. The impact on all Canadian immigrants, foreign nationals seeking to immigrate to Canada, and employers are far-reaching: an impaired driving conviction, regardless of the actual penalty imposed, where in the world it occurs, or the lack of any prior convictions, will expose both Permanent and Temporary Residents to the risk of removal from Canada and will make it harder for foreign nationals to enter Canada. Here’s who will suffer the collateral damage of the new DUI penalties and what the damage will be.

The Impact on Immigrants. The increased penalty for impaired driving convictions will impact all Canadian immigrants, regardless of their immigration status, and foreign nationals seeking to immigrate to Canada:

Permanent Resident. Currently, the immigration status of an individual who has attained Permanent Resident status in Canada isn’t affected by an impaired driving offence. But as of December 18, 2018, a Permanent Resident convicted of an impaired driving offence, regardless of the actual sentence imposed, will be at risk for revocation of their Permanent Resident status and removal from Canada. Additionally, because IRPA prohibits the appeal by a Permanent Resident of a finding of inadmissibility for “serious criminality”, escalating impaired driving from mere criminality to serious criminality compounds the potential impact. These impacts apply to all Permanent Residents, regardless of the Permanent Residency program under which they entered Canada. And for the purposes of returning in the future they’ll have to start from scratch – and will be subject to the same criteria for admissibility into Canada as any other foreign national.

Temporary Resident. Currently, a Temporary Resident convicted of an impaired driving offence, regardless of the actual sentence imposed, is at risk for revocation of their Temporary Residence status and removal from Canada – and this won’t change as of December 18, 2018. Generally, “Temporary Residents” include all foreign nationals in Canada who don’t have Permanent Resident status, including foreign workers, visitors (including tourists and “business visitors”) and students. For the purposes of returning in the future they, too, will have to start from scratch, and will be subject to the same criteria for admissibility into Canada as any other foreign national.

Foreign Nationals. Currently, a foreign national convicted of an impaired driving offence is inadmissible to Canada. However, a foreign national seeking entry as a Temporary Resident can benefit from “deemed rehabilitation” under IRPA after 10 or more years have passed since they completed their sentence or probationary period. If only five or more years have passed, they must apply for rehabilitation under IRPA, and if less than five years have passed, they can apply for a Temporary Resident Permit (TRP). But as of December 18, 2018, “deemed rehabilitation” will no longer be an option; to get into Canada, the same foreign national must apply for and obtain a TRP or rehabilitation, no matter their circumstances or resources. IRPA also prohibits the appeal by a foreign national of a finding of inadmissibility for “serious criminality”– so appealing might not be an option either.

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