September 10, 2018

Impaired Driving Convictions and Criminal Inadmissibility

The Federal Government’s Bill C-46 received Royal Assent on 21 June 2018. As a result, the maximum prison sentence for impaired driving has increased to two years less a day on summary conviction and for a period of up to ten years on indictment. The amendments will come into force on 18 December 2018, with serious implications for offenders who are permanent residents or foreign nationals.

Although impaired driving is a hybrid offence, for the purposes of criminal inadmissibility, it is considered to be an indictable offence (i.e. more serious) regardless of the manner the Crown elects to prosecute the matter. Subsection 36(3)(a) of the Immigration and Refugee Protection Act (IRPA) reads:

36(3)(a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily.

Upon conviction, in addition to the criminal penalties, a non-citizen could possibly face the loss of his or her permanent resident status, and, consequently removal from Canada on the basis of serious criminality as set out in subsection 36(1) of the IRPA, which reads as follows:

36(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for:

• (a) having been convicted in Canada of an offence under an Act of Parliament 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.

Moreover, because of the new changes, there is no deemed rehabilitation option available as it only applies to offences with a maximum sentence of less than ten years. Rehabilitation means that the individual no longer associates with a criminal lifestyle and does not remain at risk for recidivism (risk of reoffending). Now, offenders with impaired driving convictions will have to apply for criminal rehabilitation five years after the completion of the criminal sentence, thus making overcoming criminal inadmissibility all the more complicated.