The Impact of Bill C-46 on Immigration Law: Change to Maximum Penalties for Impaired Driving Convictions

Bill C-46: Changes to Impaired Driving Convictions

On June 21, Bill C-46: An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, received Royal Assent. Starting on December 18 (the date on which the Bill comes into force), Bill C-46 increases the maximum penalty for impaired driving convictions to 10 years’ imprisonment. This increase in maximum penalty is significant because under section 36(1) of the Immigration and Refugee Protection Act (IRPA), an impaired driving conviction (DUI) now constitutes inadmissibility under “serious criminality”. This applies to both impaired driving convictions happening within and outside of Canada.

Section 36(2) Prior to Bill C-46

Prior to Bill C-46, section 36(2) of the IRPA dictated that an impaired driving conviction constituted inadmissibility under “ordinary criminality”. For permanent residents, this meant that their status would have been unaffected by an impaired driving offence conviction in Canada unless there was a sentence of imprisonment for six months or more. Impaired driving convictions outside of Canada would not have impacted permanent residency status.

Under section 36(3)(c) of the IRPA, temporary residents with impaired driving convictions were automatically considered for deemed rehabilitation after 10 years from the conviction.

The reclassification of impaired driving convictions as “serious criminality” will result in severe penalties being imposed against permanent residents convicted of such offences.

Bill C-46’s Impact on Permanent and Temporary Residents

Under Bill C-46, an impaired driving conviction for a permanent resident, regardless of the sentence imposed, would automatically result in a finding of inadmissibility. The permanent resident would face a loss of permanent residency status and deportation from Canada. For example, permanent residents who are first-time offenders and fined for their impaired driving convictions would still have their status revoked and face deportation.

Temporary residents with impaired driving convictions will no longer be automatically considered for deemed rehabilitation after 10 years from the conviction. The only options available would be to apply for criminal rehabilitation or apply for a temporary resident permit.

Furthermore, under s.64 of the IRPA, if the impaired driving conviction was committed outside of Canada or the sentence for an impaired driving conviction in Canada was imprisonment for six months or more, the offender would have no right to appeal to the Immigration Appeal Board.

Recommendations from the Canadian Bar Association

In a submission letter sent to Senate Committee on Legal and Constitutional Affairs on February 27, the Canadian Bar Association suggested two recommendations that would prevent permanent and temporary residents from caught under the “serious criminality” provisions of the Immigration and Refugee Protection Act.

Recommendation 1:

a) Amend Bill C-46 to make the maximum penalty for impaired driving offence “10 years less a day” to continue classification under “ordinary criminality”; or

b) Amend the Immigration and Refugee Protection Regulations (IRPR) to include an exception to the 10-year penalty threshold to allow deemed rehabilitation to continue for impaired driving offences not involving serious bodily injury or death;

Recommendation 2:

c) Amend the Immigration and Refugee Protection Act to remove references to impaired driving convictions from outside of Canada as grounds for removing Immigration Appeal Division Appeal rights from a permanent resident.

Next Steps?

Given the harsh and disproportionate impact of Bill C-46 on permanent residents, it seems likely that the Canadian government will work to amend either Bill C-46 or the IRPA/IRPR. We will watch closely to see whether such amendments will happen prior to December 18.

Source: http://nationalmagazine.ca/Blog/March-2018-(1)/CBA-has-serious-concerns-with-proposed-impaired-dr.aspx