DUIs to become Serious Criminality in Canada's Immigration System

On June 21, 2018 Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts ("Bill C-46") received Royal Assent.

Bill C-46 is the companion legislation to Bill C-45, The Cannabis Act, which essentially legalized the possession of regulated marijuana for personal use in Canada. Bill C-46 reforms the transportation related offences in Canada's Criminal Code including drinking and driving, dangerous driving, fleeing the scene of an accident, refusing to give a breathalyzer, fleeing the police and operating a vehicle while prohibited from doing so. Bill C-46 repeals all existing Criminal Code provisions regarding these offences and replaces them with offences that have slightly different wording and new maximum sentences.

The changes in Bill C-46 will come into force 180 days after Royal Assent, which is December 21, 2018. On that day, as a result of the changes, many individuals who could previously travel to or stay in Canada will become inadmissible for serious criminality. People who could previously enter Canada will now instead be denied entry. Permanent residents who commit any of the above actions could be deported. While the Liberal government has indicated that it is aware that these harsh consequences are problematic, it has not proposed any solutions nor offered any timeline for when it may.

The government has, however, indicated that it is open to overhauling how Canada determines whether someone should be inadmissible for criminality. This is a welcome development, and one which hopefully lead to a system that considers public risk and individual offences, rather than blanket exclusions.

Understanding Criminal Inadmissibility

Section 36 of Canada's Immigration and Refugee Protection Act regulates when foreign nationals and permanent residents will be inadmissible to Canada for having been convicted of, or having committed, criminal offences both abroad and in Canada. It divides criminal inadmissibility into "serious criminality" and "general criminality."  

Only foreign nationals can be inadmissible to Canada for general criminality. It applies if a foreign national has (a) been convicted in Canada of either a hybrid or indictable federal offence, or of two or more federal offences not arising out of a single occurrence, (b) been convicted outside Canada of an offence that, if committed in Canada, would constitute either a hybrid or indictable federal offence, or of two offences not arising out of a single occurrence that would result in the same, (c) committed an act outside of Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute either an indictable or hybrid federal offence. 

A foreign national who is encompassed by the above will be inadmissible to Canada for general criminality until they either receive a pardon or demonstrate to Canadian immigration authorities that they are rehabilitated. A foreign national is ineligible to submit a rehabilitation application until five years have passed since the completion of their sentence. If the foreign national only has one offence, then Canadian immigration law deems them to be rehabilitated, and admissible to Canada, once ten years have passed since the completion of sentence. 

Both foreign nationals and permanent residence are inadmissible to Canada for serious criminality. Serious criminality applies if a permanent resident or a foreign national has (a) been convicted in Canada of a federal offence where the maximum term of imprisonment for the offence is at least ten years, (b) been convicted in Canada of a federal offence and received a term of imprisonment of more than six months, (c) been convicted outside Canada that if it were committed in Canada would constitute a federal offence punishable by a maximum term of imprisonment of at least ten years or (d) committed an offence outside Canada that if it were committed in Canada would constitute a federal offence punishable by a maximum term of imprisonment of at least ten years. 

A permanent resident or foreign national who is inadmissible to Canada for serious criminality will be inadmissible to Canada until they either receive a pardon or demonstrate to Canadian immigration authorities that they are rehabilitated. Like with general criminality, individuals who are inadmissible to Canada for serious criminality are ineligible to submit a rehabilitation application until five years have passed since the completion of sentence. Unlike with general criminality, however, permanent residents or foreign nationals who are inadmissible for serious criminality can never be deemed to be rehabilitated. 

Another important distinction between general and serious criminality applies to Canadians seeking to sponsor spouses or common-law partners. If a visa officer refuses the sponsorship application because of general criminality then the family can appeal. If the application is refused because of serious criminality then they cannot. 

Bill C-46's Changes

With the above in mind, here is a brief summary of the changes to Canada's transportation related offences contained in Bill C-46. 

Dangerous Driving

Canada’s Criminal Code currently makes it an offence to operate a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.

When Bill C-46's transportation related changes takes effect, s. 249(1)(a) of the Criminal Code will be replaced with s.  320.13(1) of the Criminal Code, which will make it an offence to operate a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public. 

The maximum penalty for dangerous driving in instances that do not involve accidents, or if there was an accident then where the accident did not result in serious bodily harm, is increasing from five years to ten years. Cases involving serious bodily harm and death will continue to have maximum sentences exceeding ten years.

Driving under the Influence

Section 253(1) of Canada's Criminal Code makes it an offence to operate a motor vehicle or have the care or control of a motor vehicle, whether it is in motion or not, (a) while the person’s ability to operate the vehicle is impaired by alcohol or a drug, or (b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood. 

When Bill C-46's transportation related changes takes effect, s. 320.14 of Canada's Criminal Code will make it an offence to (a) operate a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug, (b) have within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood, (c) have within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation, or (d) have within two hours after ceasing to operate a conveyance, a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined. There are obvious exceptions to this where the person consumed the drug or alcohol after they drove.

The maximum penalty for dangerous driving in instances that do not involve accidents, including accidents that result in bodily harm or death, is increasing from five years to ten years.  Cases involving serious bodily harm and death will continue to have maximum sentences exceeding ten years. Cases involving serious bodily harm and death will continue to have maximum sentences exceeding ten years.

As well, the maximum penalty for refusing to give a breathalyzer in cases that do not involve accidents, or if there was an accident then where the accident did not result in serious bodily harm, will be increasing from five to ten years.

Failure to Stop After Accident

Section 252(1) of Canada's Criminal Code makes it an offence to have the care, charge or control of a vehicle that is involved in an accident with (a) another person, (b) a vehicle, vessel or aircraft, or (c) in the case of a vehicle, cattle in the charge of another person, and with intent to escape civil or criminal liability fails to stop the vehicle, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance.

When Bill C-46's transportation related changes takes effect, it will be an offence to operate a conveyance and at the time of operating the conveyance knows that, or is reckless as to whether, the conveyance has been involved in an accident with a person or another conveyance and who fails, without reasonable excuse, to stop the conveyance, give their name and address and, if any person has been injured or appears to require assistance, offer assistance.

The maximum penalty for failing to stop in instances that do not involve bodily harm and death is increasing from five years to ten years. Cases involving serious bodily harm and death will continue to have maximum sentences exceeding ten years.

Flight from Police

Section 249.1 of Canada's Criminal Code makes it an offence to operate a motor vehicle while being pursued by a peace officer operating a motor vehicle, and failing, without reasonable excuse and in order to evade the peace officer, to stop the vehicle as soon as is reasonable in the circumstances.

When Bill C-46's transportation related changes takes effect, s. 320.17 of Canada's Criminal Code will make it an offence to operate a motor vehicle or vessel while being pursued by a peace officer and failing, without reasonable excuse, to stop the motor vehicle or vessel as soon as is reasonable in the circumstances.

The maximum penalty for fleeing a police officer in instances that do not involve bodily harm and death is increasing from five years to ten years. Cases involving serious bodily harm and death will continue to have maximum sentences exceeding ten years.

Driving on a Suspended License

Section 259(4) of Canada's Criminal Code makes it an offence to operate a motor vehicle while disqualified from doing so.

When Bill C-46's transportation related changes takes effect, s. 320.18 of Canada's Criminal Code will make it an offence to operate a conveyance while prohibited from doing so under the Criminal Code or by any other form of legal restriction imposed under any federal or provincial law.

The maximum penalty for driving under a suspended license is increasing from five to ten years.

Immigration Consequences of Serious Criminality

The most significant change of Bill C-46 from an immigration perspective is that drinking and driving, dangerous driving, fleeing the scene of an accident, refusing to give a breathalyzer, fleeing the police and operating a vehicle while prohibited from doing so will all become serious criminality under the Immigration and Refugee Protection Act. This is because the maximum term of imprisonment for these offences is being increased to ten years. 

This change will have several profound impacts on permanent residents and foreigners who have convictions for any of these offences. In listing these impacts below I have provided the example of a single DUI conviction, however, the consequence is the same for all of the offences described above.

First, previously all foreigners with a single DUI conviction could generally not enter Canada until they demonstrated to the Canadian government that they were rehabilitated. If ten years had passed since the completion of sentence with no further criminal activity, they were deemed to be rehabilitated. As a result of Bill C-46, there will no longer be deemed rehabilitation for a single DUI offence. An American with a single DUI from forty years ago, for example, will have to provide extensive paperwork to the Canadian government to demonstrate he is rehabilitated.

Second, previously a permanent resident who received a single DUI conviction would only face deportation proceedings if they were sentenced to six months or more. As a result of Bill C-46, permanent residents will face deportation proceedings for a single DUI conviction. This will be the case regardless of the criminal sentence that the immigrant receives in criminal court. In other words, a permanent resident who receive a fine and probation for a first DUI offence will now also face deportation.

Third, permanent residents who receive a single DUI conviction outside of Canada will now face deportation proceedings. Indeed, a conviction won't even be necessary for deportation. Canadian immigration officials simply have to have reason to believe that the permanent resident drove drunk outside of Canada to commence deportation.

Finally, if a Canadian tries to sponsor a spouse or common-law partner to immigrate to Canada, and that person has a single DUI conviction, then if a visa officer refuses the immigration application because of the DUI the family will have no ability to appeal the decision.

The Disproportionate Impact of Bill C-46 on Immigrants

During Parliamentary debate about Bills C-45 and C-46 it was initially unclear whether the government was aware of their immigration consequences. The suspicion that the government was not aware not existed because, while there was some chatter amongst immigration stakeholders, no Parliamentarians addressed Bill C-45's immigration consequences.

This notion was dashed, however, when the Liberal Government of Canada rejected two Senate amendments (one for Bill C-45 and one for Bill C-46) that would have excluded certain offences above from constituting serious criminality.

In rejecting the Senate amendments, Ahmed Hussen, Canada’s Minister of Immigration, Refugees and Citizenship Canada wrote to Canada's Senate that:

"I would like to thank you and your colleagues in the Senate for their dedication and hard work in examining both Bill C-45 and Bill C-46 over the past several months. I would also like to respond to some of the immigration concerns that have been raised with regard to the two Bills.

As you are aware, our Government is committed to striking the right balance between making cannabis legally available to adults and protecting the health and safety of all Canadians, including young people. The stiff penalties included in Bills C-45 and C-46 aim to deter criminal activity and to keep our streets safe. At the same time, I appreciate your efforts to highlight the disproportionate immigration consequences that could result after these provisions come into force.

I would like to assure you that I am committed to carefully considering and addressing the immigration consequences of Bills C-45 and C-46. My department is examining the tools within my authority to mitigate immigration consequences, including discretionary tools. Officials will also be proactively informing the public, including permanent residents, to make them aware of the possible immigration consequences for engaging in prohibited cannabis-related criminal activities as well as impaired driving involving drugs or alcohol.

While I agree with the spirit of the proposed immigration-related amendments, I believe it is important to address the immigration consequences in a more comprehensive manner. By taking a more holistic approach, we will be able to consider how these new penalties affect all categories of immigrants including permanent residents with inside and outside Canada offences, as well as temporary residents. We will also be able to ensure that the approach is consistent with the overall framework for serious criminality, in the Immigration and Refugee Protection Act, rather than carving out exemptions for certain offences.

To this end, I am committed to working with Senators and stakeholders to explore more comprehensive changes to immigration policies and take appropriate action that will effectively mitigate the immigration consequences that result from Bills C-45 and C-46.

Thank you for your work on this file and I look forward to continued discussions on this important issue."

In other words, while the government agrees that Bill C-46's immigration consequences are disproportional, nothing is to be done until the Liberals develop a more comprehensive strategy of reforming general and serious criminality in general. It is not clear where in the development process the Liberals are.

Overhauling General and Serious Criminality

There is no doubt that discouraging transportation related criminal offences, and especially driving under the influence, is an important endeavour. According to the American Centers for Disease Control and Prevention, in 2016 Canada had the highest percentage of alcohol-related crash deaths (33.6%) among 20 high-income countries (median 19.1%). 

However, as the Minister of Immigration, Refugees and Citizenship Canada himself notes, the immigration consequences of a criminal conviction can be very disproportionate to the severity of the offence. Should a person who twenty years ago was driving sober but who refused to give a breathalyzer to the police because of a misunderstanding of the law be denied entry to Canada because of that? Should a Canadian's ability to live in Canada with her foreign spouse be refused because of a single DUI from fifteen years ago, let alone their ability to appeal the refusal? People make mistakes, and in the case of the above transportation offences that do not even result in accidents, it does not seem right that the immigration consequences would be so long lasting.  

What is especially problematic is that this is the result of an immigration system that does not consider an individual’s actual actions and sentence but rather how long a sentence an offence in Canada could have had under statute. A few starting points in the Liberal government's apparent planned comprehensive overhaul in how criminal immigration inadmissibility is determined might accordingly be to consider getting rid of the provision of serious criminality which bases serious criminality on the maximum length of a sentence rather than the actual sentence receive, or, as the Senate recommended, essentially creating a prescribed list of offences that while they have a maximum penalty of ten years or more will not constitute serious criminality but rather general criminality, re-introduce appeal rights for Family Class applications that are refused for serious criminality and delegating the ability to process rehabilitation applications for serious criminality to port of entry officers.