Recent Changes To Impaired Driving Offenses And Their Effect On Canada's Immigration Laws

Introduction

On June 21, 2018, Bill C-46 received Royal Assent. Among other things, it increases the maximum penalties for impaired driving offenses under the Canadian Criminal Code, (R.S.C., 1985, c. C-46) ("CCC"). Bill C-46 comes into effect 180 days after Royal Assent, which means that these maximum penalties will apply as of December 18, 2018.

With recreational marijuana expected to become legal in October 2018, Bill C-46 is an attempt by the Canadian Government to demonstrate that it will not tolerate impaired driving of any kind. Unfortunately, Bill C-46 will have a significant impact on non-citizens, which is something that the Canadian Government likely did not consider.

Relevant Law

Under Subsection 36(1) of the Immigration and Refugee Protection Act ("IRPA"), temporary residents (i.e. temporary workers, students, and visitors) and even permanent residents are inadmissible to Canada if they:

Are 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; 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; or 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. This ground of inadmissibility is referred to as "serious criminality."

As a result of Bill C-46, the offence of operating a vehicle while impaired (where no bodily harm or death occurs) appears in the new CCC 320.14(1). According to the new CCC 320.19(1), the Crown may elect to prosecute such a case as a summary conviction or as an indictable offence. If the offence is prosecuted by indictment, the maximum penalty is imprisonment for a term of not more than 10 years.

Although most individuals who are charged with impaired driving in Canada (where no bodily harm or death occurs) will never receive a sentence of 10 years of imprisonment, this is irrelevant for the purposes of Canadian immigration law. According to IRPA 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...