Impaired Driving Convictions and Inadmissibility

Canada enforces some of the toughest impaired driving laws in the world with all impaired driving offences now categorized as “serious criminality”. Serious criminality offences may make you inadmissible to Canada, and may result in severe immigration consequences - including refusal of entry to Canada, deportation, or ineligibility for Canadian citizenship. This blog considers the impact of a DUI conviction on the ability of permanent residents or foreign nationals to enter or remain in Canada.

Inadmissibility to Canada

Permanent residents or foreign nationals who are convicted of certain crimes may be deemed inadmissible to Canada. Inadmissibility may have serious consequences, including:

• Loss of permanent residence status in Canada;

• Prohibition from immigrating to Canada;

• Inability to enter Canada (even as a visitor);

• Refusal of temporary residence applications including work permits, study permits, and temporary resident visas; and

• Removal from Canada or detention

The Immigration and Refugee Protection Act (IRPA) distinguishes based on categories of inadmissibility related to:

• Criminality;

• Organized criminality;

• Security;

• Human or international rights violations;

• Health;

• Financial reasons;

• Misrepresentation;

• Non-compliance; and

• Inadmissible family members.

Serious Criminality vs. Criminality

For immigration purposes, crimes committed at the individual level are categorized either as Serious Criminality or Criminality. As these names suggest, serious criminality refers to crimes where more serious or longer penalties are possible under the Criminal Code. 

Under IRPA, a permanent resident or a foreign national is inadmissible to Canada on grounds of serious criminality for:

• Having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least ten years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;

• Having been 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 ten years;

• 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 under an Act of Parliament punishable by a maximum term of imprisonment of at least ten years.

In order to determine inadmissibility, foreign convictions and laws are equated to Canadian law as if they had occurred in Canada.

Assessing Inadmissibility due to serious criminality

In Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, the Supreme Court of Canada considered the assessment of serious criminality and equivalency under subsection 36(1) of IRPA. The Supreme Court of Canada concluded that:

• A conditional sentence of imprisonment imposed pursuant to sections 742 to 742.7 of the Criminal Code does not constitute a “term of imprisonment” (i.e. a jail or prison term) under paragraph A36(1)(a) of IRPA. Conditional sentences, even with stringent conditions, will usually be more lenient than jail terms of equivalent duration and generally indicate less serious criminality than jail terms;

• The phrase “maximum term of imprisonment” in paragraph A36(1)(a) of IRPA refers to the maximum term of imprisonment available at the time of the commission of the offence and not the term of imprisonment available at the time of sentencing or the time admissibility is assessed.

Impaired Driving Offences and Canadian Immigration Law

Prior to December 18, 2018, impaired driving offences were categorized as Criminality. Impaired driving offences that were committed prior to this date were subject to a maximum penalty of 5 years imprisonment. The December 18, 2018 amendments to Canada’s Criminal Code increased the maximum penalty to a term of imprisonment of not more than 10 years. This means that impaired driving is now considered to be a crime with serious criminality attached. 

If a person committed the impaired driving offence before Bill C-46 passed on December 18, 2018, the earlier, more lenient penalty of 5 years imprisonment would apply - meaning the person is inadmissible for general criminality, but not for serious criminality. If they committed the impaired driving offence on or after December 18, 2018, they would be inadmissible for serious criminality. 

It is evident that a finding of inadmissibility can have a serious impact on the lives of people who want to visit, work, study, or live in Canada. If you are dealing with potential inadmissibility issues, schedule a consultation with Christina.