Changes to DUI laws may endanger immigration status

In October of 2018, Canada legalized the recreational use of marijuana (cannabis) for adults. The introduction of this legislation arrives with some significant changes to the penalties that may be imposed on those who commit offenses related not only to marijuana but to many driving related offences as well. Taking effect on December 18, 2018, one such change will see an increase in the maximum penalty for driving under the influence, or “DUI”, and it is this change that may catch permanent residents and temporary residents by surprise and potentially impact their immigration status.

As of December 18, 2018, the maximum term of imprisonment for DUI’s will increase from 5 years to 10 years, and as a result will become an offence that is automatically considered “serious criminality” for the purposes of Canadian immigration laws.

The distinction between ordinary criminality and serious criminality is an important one.

Only foreign nationals, such as visitors, foreign workers or students, become inadmissible to Canada for “ordinary” criminality. Our immigration laws define “ordinary” criminality as (a) having been convicted in Canada of an indictable or hybrid offence, or of two strictly summary offences not arising out of a single occurrence; (b) having been convicted outside Canada of an offence or offences that would constitute “ordinary” criminality had it been committed in Canada; 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 indictable or hybrid offence.

Inadmissibility for “ordinary” criminality can cause foreign nationals, but not permanent residents, to lose their immigration status in Canada, or can prevent them from entering Canada as temporary residents or from obtaining permanent resident status.

An individual would continue to be inadmissible to Canada for ordinary criminality until they receive a pardon for the offence, or until they are considered rehabilitated.  An individual is eligible to apply for rehabilitation after five years have passed since the completion of their sentence. Individuals who have a single foreign conviction or offence that causes them to be inadmissible for “ordinary” criminality are automatically deemed to have been rehabilitated if ten years have passed since the completion of their sentence.

While “ordinary” criminality only affects foreign nationals, serious criminality causes inadmissibility for Canadian permanent residents and foreign nationals alike.

Canada’s immigration laws define serious criminality as: (a) having been convicted in Canada of an offence punishable by a maximum term of imprisonment of at least 10 years, or of an offence 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 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 punishable by a maximum term of imprisonment of at least 10 years.

Individuals who are inadmissible for serious criminality will also continue to be considered inadmissible to Canada until they receive a pardon for the offence, or until they are considered rehabilitated.  Just as with “ordinary” criminality, an individual who is inadmissible for serious criminality can make an application for rehabilitation after five years have passed since the completion of their sentence; an important difference however, is that an individual will never be considered deemed rehabilitated for serious criminality by the mere passage of time.

Raising the maximum penalties for DUI’s from five years to ten years has the potential to significantly affect the Canadian immigration system. For example, prior to the penalty increase, a permanent resident would only face removal proceedings for a single Canadian DUI conviction if they received a sentence of more than six months of imprisonment. With the coming increase in the maximum penalty for DUI’s, a permanent resident could face removal proceedings for a DUI conviction even if they received a sentence that was six months or less – though such individuals would maintain a right to appeal their removal to the Immigration Appeal Division.

Even more serious is the impact of being convicted of a DUI offence outside of Canada, or even just being found to have committed a DUI offence outside of Canada, as a permanent resident could potentially lose their PR status and face removal and, in these two circumstances, would lose their right to appeal to the Immigration Appeal Division.

Furthermore, foreign nationals seeking to enter Canada previously did not have to worry if they had a single foreign DUI conviction that was more than ten years old as they were deemed rehabilitated and therefore not inadmissible to Canada.  With the increased penalties for DUI’s, those types of individuals will no longer be deemed rehabilitated by the passage of time, and instead will have to actively make rehabilitation applications or will have to apply for special permits to be able to enter Canada.

Readers may wonder whether a person who has committed an impaired driving offence in the past may be at risk. The Minister of Immigration, Refugees and Citizenship has stated that, following the Supreme Court of Canada’s decision in the case of Tran v Canada (Public Safety and Emergency Preparedness), a past impaired driving offence that was considered as criminality rather than serious criminality will not endanger a person’s PR status. This is because an assessment of serious criminality should involve considering the law that was in place at the time of the offence.

Going forward, temporary and permanent residents should be aware of these offence penalty changes and must remember that a DUI may have severe and permanent repercussions to their Canadian immigration status.  Non-citizens charged with a DUI must make sure that their immigration status is considered during any criminal law proceedings and may want to consult with an immigration lawyer to understand what the potential consequences are and what remedies may be available when it comes to their immigration status.

McCuaig Desrochers LLP, a general practice law firm with Edmonton’s largest group of immigration lawyers (www.mccuaig.com). This article first appeared in the November 2018 edition of the Millwoods Mosaic – the Multicultural Voice of Southeast Edmonton and is intended to provide general information only and should not to be relied on as legal advice or opinion. We invite you to contact one of the members of our experienced immigration group for assistance.