Canadian Immigration Crackdown on Foreign DUI Offenders

Posted by admin on March 15th, 2019

As of December 18, 2018, Canada’s Bill C-46 became law, classifying impaired driving offenses as “serious criminality” rather than “simple” within the Immigration and Refugee Protection Act.

So how does the passing of Bill C-46 affect us stateside?

First, we should understand what the Immigration and Refugee Protection Act of Canada is. This is “[a]n Act respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger.” As such, the act details under what circumstances immigration and refugee status is given to a non-Canadian citizen. Of those details existed Section 36 (1), which states that “a permanent resident or foreign national is deemed inadmissible to Canada if he or she is convicted of an offence that is considered serious criminality.”

Previously, serious criminality included offenses such as murder, aggravated sexual assault and drug trafficking. Now, with this new bill, impaired driving fits in this category. Even offenses such as wet reckless, which are reduced DUI offenses (see What are the Benefits (and Disadvantages) of a Wet Reckless?), are now considered in the serious criminality category.

Not only did the amendment change the categorization of DUIs, it also increased the penalty as well. What was a maximum term of imprisonment of five years is now 10 years. Canadian immigration officials are not pulling any punches.

Having a DUI offense on your record made it slightly inconvenient when travelling to Canada, but now, it can mean that it becomes extremely difficult for you to obtain a work visa in Canada or even to simply visit as a tourist (see Traveling to Canada after a California DUI Conviction).

Many of the same rules apply if you want to visit Canada after you have been convicted of a DUI with this new bill. However, one of the exceptions we mentioned in the previously noted post, is “deemed rehabilitation.” With the new bill, this method is no longer an option for those inadmissible to enter Canada due to a DUI conviction. Leaving only what is called “rehabilitation by application” as a method to entering Canada legally.

You are eligible to apply for rehabilitation if five years has passed from the completion of the sentence and are able to demonstrate that they are no longer a risk for criminal activity. Demonstrating that you are no longer a risk can come from showing a stable lifestyle, community ties, or proof that the offense was an isolated event. Simple, right? Well, the difficulty comes when we start counting the five years. Below are some of the most common sentences and the correct way to calculate the waiting period:

Suspended sentence: Five years from the date of sentencing.

Suspended sentence with a fine: Five years from the date the fine was paid. For any varying payment, the count will start from the date the final payment was paid.

Imprisonment without parole: Five years from the end of the term of imprisonment.

Imprisonment and parole: Five years from the completion of parole.

Probation: Probation is considered to be a part of the sentence. Thus, five years from the end of the probation period.

Driving prohibition: Five years from the end date of the prohibition.

You must also remember that because the new characterization of DUI is more serious than before, the immigration officials will be looking at your application with more scrutiny than they had before. The redefinition will undoubtedly make some of the applications more difficult to accept.

One saving grace is that currently this amendment is only being considered for offenses that happen after its passing. Therefore, if your offense happened before December 18, 2018 then you may be unaffected. For any permanent residents or foreign nationals already living in Canada, the amendment is not grounds for expulsion.

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