The Government of Canada has confirmed that impaired driving offences committed before coming into force of tougher sentences in December 2018 will not place foreign nationals at risk of inadmissibility or deportation.
In a letter responding to concerns raised by the Canadian Bar Association (CBA)’s Immigration Law Section, Canada’s Immigration Minister, Ahmed Hussen said, the penalties will only increase when part 2 of the amended laws take effect on December 18, 2018.
Given Royal Assent in June, the amendments contained in Bill C-46 will increase the maximum sentence for impaired driving from five to ten years once they came into force, thereby elevating offences committed as of December 18, 2018, from ordinary criminality into the category of serious criminality.
Section 36(1) of Canada’s Immigration and Refugee Protection Act (IRPA) states a permanent resident or foreign national is deemed inadmissible to Canada if he/she is convicted of an offence that is considered serious criminality.
The CBA has warned that the reclassification of impaired driving as serious criminality will have “disproportionate and severe” implications for non-citizens with impaired driving convictions, including the loss of permanent resident status and the loss of appeal rights if sentenced to at least 6 months imprisonment for an offence committed in Canada.
In his letter, Hussen confirmed that impaired driving offences committed prior to December 18, 2018, will be treated as criminality rather than serious criminality, citing the Supreme Court of Canada’s 2017 decision, Tran v. Canada.
He further wrote, “As per the Supreme Court of Canada’s decision in Tran v. Canada in assessing serious criminality, officers will take into consideration the Canadian law in place of the offence.”
Hussen also addressed the CBA’s recommendation that all persons deemed rehabilitated for an impaired driving offence prior to the coming into force of the new penalties benefit from a grandfather clause to preserve their status.
The minister said that anyone deemed rehabilitated for an impaired driving offence outside Canada before 18, 2018 “would not need to reapply for relief to overcome inadmissibility due to that same offence.”
Hussen also said that the government recognizes “there could be disproportionate immigration consequences for “non-Canadians” and he repeated a commitment made earlier this year to ‘explore more comprehensive changes to immigration policies and take appropriate action that will effectively mitigate the immigration consequences that result from Bill C-46.”
Hussen also said it was too soon to say what such changes would involve.