Collateral Damage: How Canada’s New Impaired Driving Penalties Will Impact Canadian Immigrants & Employers
December 18, 2018
By Meghan Felt, Partner at McInnes Cooper,
Morganne Foley, Lawyer at McInnes Cooper
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, a foreign national who commits an impaired driving offence on or after December 18, 2018 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.
The Impact on Employers. Immigrants (and their families) will obviously be most acutely impacted by these changes. But employers will also be impacted. It’s no secret that Canadian employers are facing a labour shortage challenge, and that they’re looking to immigration as a key solution to that challenge. When Bill C-46’s amendments to the Criminal Code take effect, Canadian employers that employ Permanent or Temporary Residents will face the potential loss of skilled and valuable employees, many of whom they might have gone to considerable lengths – and expense – to locate and to hire. For example, in many cases, a Canadian employer must obtain a Labour Market Impact Assessment (LMIA) before hiring a Temporary Foreign Worker, a process that’s typically arduous, time-consuming and costly – and for which there are no refunds. Canadian employers seeking to hire foreign workers to come to Canada will be looking in a pool of candidates that will be either smaller because more will be considered inadmissible, or filled with more potential employees who must take further steps to gain admissibility. Furthermore, multi-national and foreign organizations that have, to date, moved employees across the Canadian border with relative ease, whether as intra-company transferees or as a brief “business visitor”, might now find those same employees inadmissible to Canada – and need to revisit which employees in their ex-Canada operations can enter Canada and how.
The Impact of the Timing. The time of the offence will be a critical factor in determining whether an immigrant’s impaired driving conviction meets the level of “criminality” or of “serious criminality” under IRPA – and thus subjects them to the harsher consequences. Based on court decisions (such as the Supreme Court of Canada’s 2017 decision in Tran v. Canada (Public Safety and Emergency Preparedness) the date on which the immigrant committed the offence is the relevant date to determine whether an immigrant’s crime is one of “criminality” or of “serious criminality” under IRPA. So the changes will affect only those who commit an impaired driving offence on or after December 18, 2018; those who committed such an offence before December 18, 2018 will still be classified at the lower “criminality” level.
The Critical Interplay: Criminal Code & IRPA
It’s the interplay between the Criminal Code of Canada and Canada’s Immigration and Refugee Protection Act (IRPA) that causes the Bill C-46 amendments, and the increased maximum possible sentence for the offence of impaired driving under the Criminal Code, to have such far-reaching consequences for Canadian immigrants.
The Criminal Code. The Criminal Code of Canada establishes criminal offences and the maximum penalties for those offences, including impaired driving offences. Currently, the greatest punishment available for an impaired driving offence is a maximum term of imprisonment of five years (which applies if the Crown chooses to prosecute the offence by way of an indictable rather than a summary offence). Bill C-46 will increase this greatest punishment available for some impaired driving convictions, including impaired driving where there’s no resulting bodily harm or death, to a maximum term of imprisonment of 10 years. Of course, the severity of the actual sentence a court imposes on a person convicted of any offence will depend on the specific facts of each case. Practically, most people convicted of impaired driving, particularly first time offenders, won’t actually be sentenced to imprisonment for 10 years. But it’s the maximum sentence that’s possible – not the actual sentence that’s imposed – that causes the immigration impact under IRPA.
The Immigration and Refugee Protection Act (IRPA). Canada’s Immigration and Refugee Protection Act (IRPA) applies to all Canadian immigrants:
- “Temporary Residents”. Temporary Residents are generally foreign nationals who haven’t applied for or attained Permanent Resident status in Canada, including: all “temporary foreign workers” regardless of under which Canadian immigration program (such as the Temporary Foreign Worker Program or the International Mobility Program) or which path under that program (for example, the Global Talent Stream) via which they entered Canada; visitors of any kind, including “business visitors”, such as those entering Canada solely to attend a meeting or to repair a product; and students.
- Permanent Residents. Permanent Residents are foreign nationals who’ve attained Permanent Resident status in Canada, regardless of the permanent residency program under which they attained their status including, for example, via the Atlantic Immigration Pilot Program, the Federal Express Entry Program, the Family Sponsorship, or any of the Provincial Nominee Programs (PNPs).
One of the factors for establishing “admissibility” in Canada (both for a foreign national seeking entry into Canada and for an immigrant’s eligibility to stay in Canada) under IRPA is their criminal record. For this purpose, IRPA establishes two levels of criminal convictions, both of which IRPA defines by reference to the Criminal Code of Canada: mere “criminality” and “serious criminality”. Thus, there’s a critical interplay between provisions of the Criminal Code and IRPA – and changes in one can effect changes in the other.
The Escalation Effect
This is exactly what will happen when Bill C-46, and its amendments to the Criminal Code, take effect: changing the Criminal Code to increase the maximum potential sentence for impaired driving offences under the Criminal Code will have the effect of escalating the crime of impaired driving from the “criminality” to the “serious criminality” level under IRPA – with serious consequences for Canadian immigrants:
“Serious Criminality”. Under subsection 36(1) of IRPA, Canadian immigration authorities can find both Permanent Residents and Temporary Residents “inadmissible” to Canada (meaning they can be refused entry into Canada, or if they are already in Canada, they can be subject to deportation proceedings) if they commit a crime that meets the standard of “serious criminality”. A person has committed a crime of “serious criminality” under IRPA in any of these circumstances:
- They are convicted in Canada of an offence under an Act of Parliament – such as the Criminal Code of Canada – 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.
- They are 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.
- They have committed 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.
Currently, the maximum punishment for an impaired driving offence possible under the Criminal Code is a term of imprisonment of five years. As a result, it’s not currently classified as a crime of “serious criminality”, but only of “criminality”. “Criminality” affects only Temporary Residents – not Permanent Residents – and IRPA includes options to ameliorate the impact of a criminal conviction at the “criminality” level. But when the Bill C-46 amendments take effect, the maximum punishment possible will be a term of imprisonment of 10 years, elevating it to a crime of “serious criminality”. This will render both Temporary and Permanent Residents convicted of impaired driving – even a first offence for which the sentence actually imposed is only a fine – inadmissible to Canada, and expose them to the risk of revocation of their status and removal proceedings under IRPA.
Mere “Criminality”. Under section 36(2)) of IRPA, Canadian immigration authorities can find Temporary Residents inadmissible to Canada if they commit a crime that meets the lesser standard of “criminality”. A person has committed a crime of “criminality” under IRPA in any of these circumstances:
- They have been convicted in Canada of: an offence under an Act of Parliament – which includes the Criminal Code of Canada – that the Criminal Code says is punishable by way of indictment; or of two offences under any Act of Parliament that didn’t arise out of a single occurrence.
- They have been convicted outside Canada of: an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament; or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament.
- If a person has committed 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 offence under an Act of Parliament.
Currently, Temporary Residents and foreign nationals seeking entry as Temporary Residents are inadmissible to Canada even if they have one impaired driving offence because under the Criminal Code, an impaired driving offence can be prosecuted by way of indictment. However, under IRPA, a Temporary Resident or a foreign national with only one indictable offence that’s punishable by less than 10 years’ imprisonment, is “deemed” to be “rehabilitated” 10 years after they complete their sentence or probation (as the case may be). Deemed rehabilitation doesn’t require an application, and effectively negates the conviction in terms of the admissibility criteria. They can also apply for criminal rehabilitation five years after they complete their sentence or probation or, if less than five years have passed, they can apply for a Temporary Resident Permit (TRP), a short term solution that allows entry to Canada on a temporary basis despite being otherwise inadmissible (because of a criminal conviction(s), for example). But when Bill C-46 takes effect, impaired driving will become punishable by a maximum term of imprisonment of 10 years – and deemed rehabilitation under IRPA will no longer be an option for either Temporary Residents or foreign nationals seeking entry as a Temporary Resident with even one impaired driving conviction for an offence committed on or after December 18, 2018. The only options will be: to formally apply for criminal rehabilitation regardless of their personal circumstances, the severity of their actual sentence or the time that’s passed since they committed the offence; or apply for a TRP, which, given the conviction will now be at the level of “serious criminality”, will likely be more difficult to obtain.
No More Appeal. Section 64(1) of IRPA compounds the damage the escalation to the level of “serious criminality” causes. Under this section, neither foreign nationals nor Permanent Residents found inadmissible to Canada for “serious criminality” have the right to appeal that finding of inadmissibility to the Immigration and Appeal Division (IAD).
Please contact your McInnes Cooper lawyer or any member of the Immigration Law Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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