Do Permanent Residents face deportation after a DUI?
Driving Under the Influence or commonly referred to as DUI's is becoming an offense that is a top priority for the Government of Canada to address. Bill C-46 is meant to address the rising issue of driving under the influence in Canada.
The Canadian government has imposed tough new penalties for those who:
Drive under the influence of alcohol or drugs (including cannabis)
Commit cannabis-related crimes
How will Permanent Residents be affected?
The new regulations (Bill C-46) coming into effect on December 18th, 2018 will increase the maximum penalty for impaired driving from 5 to 10 years of imprisonment.
This is important news for Canadian permanent residents as this means you will now face deportation if you are convicted of this crime. Temporary residents (visitors, international students, foreign workers) may also not be able to stay or enter Canada.
The reason that permanent residents could face deportation is because the crime is now considered as "Serious Criminality" under the Immigration and Refugee Protection Act (IRPA) when it was previously considered as "criminality". Permanent residents do not have face deportation or inadmissibility to Canada for crimes that are considered "criminality" (Section 36 (2) of IRPA).
Serious Criminality (Section 36 (1) of IRPA)
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;
(b) 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 10 years; or
(c) 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 10 years.
What if the crime was committed before December 18th, 2018?
The Supreme court of Canada has ruled in the Tran v. Canada decision of 2017 that:
The phrase “punishable by a maximum term of imprisonment of at least 10 years” in s. 36(1) (a) of the IRPA refers to the maximum term of imprisonment available at the time of the commission of the offence, and is to be understood as referring to the circumstances of the actual offender or of others in similar circumstances.
Accordingly, the relevant date for assessing serious criminality under s. 36(1) (a) is the date of the commission of the offence, not the date of the admissibility decision.
We believe that bill C-46 should follow the directives of the Tran v. Canada decision and only be applicable to offences committed after December 18th, 2018.
What is considered a DUI?
According to Canadian law, it is not only prohibited to drive under the influence but also having the care or control of a vehicle while impaired.
Here are some situations that could have the same consequences as impaired driving:
Sitting in the driver’s seat, even if the vehicle is stopped or broken down
Being in the vehicle (even asleep on the back seat) and having the possibility of starting the engine.
Physically being near the vehicle such as brushing snow off the car or reorganizing your things in the trunk