DUI offenses carry greater consequences for foreign nationals

17 Jul 18

CANADA

IMPACT – MEDIUM

What is the change? Canada has amended its Criminal Code to categorize impaired driving offenses as “serious criminality,” increasing the maximum punishment to 10 years in prison (from the current maximum of five years).

What does the change mean? The change carries potentially harsh consequences for Canadian permanent residents, foreign residents and visitors. A conviction for offenses deemed “serious criminality” renders a foreign national inadmissible and deportable regardless of the actual sentence imposed or how long ago the offense occurred. Additionally, a DUI committed by a Canadian permanent resident either inside or outside of Canada will render the permanent resident subject to possible deportation.

  • Implementation time frame: The measure passed June 21 and takes effect 180 days thereafter, on Dec. 18.
  • Visas/permits affected: All entry visas, temporary visas and permanent residency.
  • Who is affected: Canadian permanent residents and foreign nationals convicted of an impaired driving offense in Canada or convicted of a similar offense outside Canada.
  • Business impact: Expatriate employees and their family dependents, as well as short-term foreign business travelers, should be made aware of the severe immigration consequences of any offense involving driving under the influence of drugs or alcohol whether in Canada or outside Canada and regardless of the actual punishment imposed.
  • Next steps: Any foreign national with an impaired driving offense or conviction in Canada or an equivalent offense outside Canada should consult counsel immediately to apply for criminal rehabilitation if five years have elapsed since the offense. The previous remedy of “deemed rehabilitation,” which has been available for a single DUI, will no longer be available and previous decisions of deemed rehabilitation will be rescinded. Individuals with a decision of deemed rehabilitation must now apply for a formal criminal rehabilitation decision, and the government fee has been raised from 200 to 1,000 Canadian dollars (about US$152 to $758).

Background: The amendments to impaired driving offenses under Canada’s Criminal Code were passed in Bill C-46, which received royal assent June 21 and takes effect Dec. 18. The main provision affecting foreign nationals is the increase in the maximum punishment to 10 years of prison, which puts these offenses in the category of “serious criminality” and triggers inadmissibility and deportation consequences under Canada’s Immigration and Refugee Protection Act. The key immigration consequences are as follows:

  • Permanent residents with an impaired driving conviction in Canada may be deemed inadmissible based on an offense categorized as “serious criminality” and may be issued a deportation order and lose their permanent residency. Under current law, foreign residency status is only impacted if the individual is convicted of an impaired driving offense in Canada and sentenced to a prison term of six months or more.
  • Permanent residents with an impaired driving conviction outside Canada, or who have committed an impaired driving offense outside Canada (even without a conviction), may also be subject to deportation even if no sentence is imposed.
  • Visitors to Canada with an impaired driving conviction or offense outside Canada that would hold a maximum sentence of 10 years of prison if committed in Canada would be inadmissible and must apply for criminal rehabilitation. Under current law, a foreign national convicted of an equivalent impaired driving offense outside Canada may be deemed rehabilitated if 10 years have passed since completion of the sentence. Previously issued deemed rehabilitation decisions will be rescinded. Under the new law, a foreign national must make a formal request for rehabilitation or apply for temporary residence permit.

BAL Analysis: The new law was opposed by the Canadian Bar Association because of its harsh consequences on foreign visitors and permanent residents, as well as the likely flood of applications for rehabilitation and temporary residence permits that would strain Canadian immigration and border staff and resources. The Immigration Minister has indicated he is “committed to carefully considering and addressing the immigration consequences” of the new law and is examining tools within his authority, including discretionary tools, to mitigate those consequences. In the meantime, foreign nationals should anticipate that a DUI offense committed abroad or in Canada may jeopardize their ability to travel to Canada as a visitor or remain in Canada as a permanent resident.

This alert has been provided by the BAL Global Practice group and our network provider located in Canada. For additional information, please contact your BAL attorney.

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