Harsher Penalties for DUIs: How to Travel with a Conviction

Bill C-46 & Its Significant Impact on Canadian Admissibility

Bill C-46 was approved on June 21, 2018. Due to take effect in December 2018, the Bill will amend the Canadian Criminal Code and related legislation, including the Dangerous and Impaired Driving Act. Harsher consequences will be implemented for driving impaired as a result of drugs or alcohol, along with increased severity of the offense for driving after drug consumption, marijuana in particular. Furthermore, police will be granted greater powers to test drivers for impairment, with subsequently stricter punishments for noncompliance with police procedure – for instance: fleeing from police, leaving after an accident, or refusing drug or alcohol testing.

More specifically, dangerous driving offenses including impairment, driving while prohibited and noncompliance, which were previously typified as “criminality”, will now be categorized as “serious criminality”. The new legislation will increase the maximum penalty from 5 to 10 years for these offenses. Consequently, individuals with offense records within these categories, such as a DUI, will face greater difficulty in gaining admissibility to Canada. Foreign nationals (FNs) and temporary residents (TRs) who could previously visit Canada may now be denied entry, and permanent residents may face deportation. As such, in order to boost chances of gaining entry to Canada, pleading down a DUI charge to a lesser offense will be increasingly valuable to avoid inadmissibility.

The Current Situation

Criminality Status

In determining an individual’s admissibility to Canada, the Immigration and Refugee Protection Act categorizes offenses as “criminality” or “serious criminality”.

Criminality cases occur when a committed offense is punishable by indictment in Canada (or an equivalent offense abroad). Within this classification, FNs (including TRs) are deemed inadmissible. However, individuals of criminality status may become admissible to Canada in the exceptional circumstance that their record is suspended (offence is pardoned), or if the individual is accepted for Criminal Rehabilitation (this program may be applied for 5 years after completing all parts of sentencing). If only one offence was committed and 10 years have passed, the individual may be automatically deemed rehabilitated, effectively resolving the issue of inadmissibility to Canada. These procedures are not applicable to permanent residents or Canadian citizens.

Alternatively, serious criminality occurs when an offense results in a maximum punishment of at least 10 years (or equivalent offense abroad), or when an individual is criminally convicted in Canada and has served a prison sentence of 6 or more months. Within serious criminality, both FNs (including TRs) and permanent residents may be deemed inadmissible. Those convicted for serious criminality may receive a record suspension or apply for Criminal Rehabilitation, but they cannot be deemed rehabilitated.

Currently, dangerous driving offenses hold a maximum penalty of 5 years, meaning they fall under the serious criminality category.

Current Dangerous Driving Legislation

Dangerous driving due to alcohol or drug impairment are both current criminal offenses in Canada. However, existing legislation only prescribes a standardized blood concentration limit for alcohol, not drugs. With this in mind, the forthcoming legalization of marijuana across Canada (Bill C-45, the Cannabis Act) now provides a clear need to prescribe blood concentration limits for drugs. Relevant changes to the Criminal Code under Bill C-46 will address this need by limiting the quantity of THC (the main psychoactive component of cannabis) permissible in drivers’ bloodstreams.

What will change?

Due to Bill C-46, new offenses have been added to the Criminal Code, maximum penalties augmented, minimum penalties introduced for various existing offenses, and police given greater powers to test drivers for impairment.

Greater Powers and New Testing Methods for Police

Previously, police were lawfully only allowed to administer a breathalyzer with reasonable suspicion that an individual was driving under the influence of alcohol. However, new legislation will grant the police greater power by allowing the random conduction of roadside alcohol breathalyzing.

Additionally, to accompany the legalization of marijuana, a prescribed blood concentration limit for drugs will be set. Police will be equipped with new screening tools to test drivers’ saliva or blood for drugs in their system; however, unlike alcohol testing, a drug test may only be conducted under reasonable suspicion of drug use. Collected bodily fluid samples which are submitted for testing may serve as judicial evidence for impaired driving, without additional proof. This new legislation permits police to assume that any drug present in the impaired driver’s body (up to two hours after driving) is both the cause and proof of an impaired state.

More specifically, Bill C-46 establishes 3 new offences for driving under the impairment of drugs: a presence of a low-level blood drug concentration (2 to 5 nanograms of THC per milliliter of blood*) which will be punishable by a maximum of $1000 in fines; an offence of driving impairment due to a high-level blood drug concentration (more than 5ng/ml*); and an offence of driving impairment due to a mixed blood drug and alcohol concentration (2.5ng/ml plus 50mg alcohol per 100ml*).

*The THC level limits laid out above are those currently proposed by the government; however, they are not formally established. Bill C-46 authorizes the Governor in Council to be the determinant of blood drug concentration limits.

New Penalties

Bill C-46 will enact harsher punishments for some vehicle-related offenses that are already classified under the serious criminality umbrella (therefore the change does further impact  immigration status). The maximum penalty will be increased from 10 years to 14 years for offenses of: vehicle operation causing bodily harm, operation while impaired causing bodily harm, failure or refusal to comply with a police demand after having caused a vehicle accident resulting in bodily harm, and failure to stop after an accident resulting in bodily harm. Moreover, the maximum penalty for the offense of operation causing death will increase from 14 years to life imprisonment.

However, with considerable implications for Canadian admissibility status,  Bill C-46 will also increase the maximum penalty from 5 years to 10 years for offenses of:

  1. Dangerous operation
  2. Operation while impaired
  3. Failure or refusal to comply with a demand (e.g. to refuse a breathalyzer test)
  4. Failure to stop after an accident
  5. Flight from a police officer
  6.  Operation while prohibited (e.g. with a suspended license)

Moreover, the classification of the above-mentioned offenses will be amended from criminality to serious criminality.

Implications for Travel to Canada?

Domestic Consequences – Implications for Temporary and Permanent Residents in Canada

The increase in frequency and randomization of alcohol testing, the newly introduced drug testing, and the augmented maximum penalties are likely to raise the number of convictions for noncompliance with police procedure, resulting in raised inadmissibility to Canada.

Temporary and permanent residents in Canada who have a previous conviction of a dangerous driving offense will be liable to loss of immigration status and deportation. Permanent residents’ appeal rights will also be restricted if deemed inadmissible to Canada as a result of such a conviction. Furthermore, even under circumstances whereby the government does not subject the individual to deportation; when traveling in and out of Canada the permanent resident must disclose their conviction at port-of-entry, and immigration officials may enforce restrictions on mobility.

Foreign Consequences – Implications for Temporary Residents’ Permit Applications

Currently, in order to obtain a Temporary Resident Permit to enter Canada, FNs must present a significant reason for traveling – for example, an American with a DUI conviction may be permitted to enter Canada for a wedding. However, the updated status of a DUI conviction as serious criminality will present a larger roadblock for entry, likely requiring a much more significant reason for travel.

Furthermore, the previous eligibility of an FN or TR with a single DUI conviction to be deemed rehabilitated after 10 years will be lost. These individuals may still apply for Criminal Rehabilitation 5 years after completing all sentencing, however they will face greater scrutiny of their application due to the serious criminality status of their offense.

For individuals whose sentencing finished over 10 years ago and who are currently deemed rehabilitated, it is unclear whether they will lose their status and if their admissibility will be affected.

In sum, admissibility to Canada after a DUI will become much more complicated, challenging and expensive.

Concerns Surrounding Bill C-46

Concerns have been made by the Senate of Canada, the Canadian Bar Association and the Criminal Lawyers’ Association, with regard to the random roadside testing – they fear that it contradicts part of the Canadian Charter of Rights and Freedoms and may target minority groups. Moreover, in a recent report on Bill C-46, the Canadian Bar Association noted that the new legislation may cause unwanted delays in the legal system, absorbing significant system resources without substantial results.

Political Opposition to Bill C-46

Despite the aforementioned concerns being raised by a number of political and legal groups, Canadian legislators appear to be focusing primarily on the domestic impacts of Bill C-46 and overlooking the foreign repercussions on travel and immigration. The Senate of Canada opposed the classification of driving under impairment as “serious criminality” in order to prevent many FNs and TRs from being inadmissible to Canada. The Senate proposed amendments to Bill C-46 based on this concern, though they were rejected. As such, the government has neither provided solutions nor a timeframe for addressing this issue.

How can FWCanada Help You Prior to Conviction? 

Pleading a Lesser Offence

To increase our clients’ chances of admissibility to Canada, we recommend pleading down the offense to one that does not fall under the “serious criminality” classification. Typically, this implies pleading to a driving offense which does not involve impairment, recklessness or bodily injury. To avoid inadmissibility altogether, pleading down to an offense which does not dictate any form of criminality is the best case – for example, a traffic violation or disorderly conduct. Alternatively, we recommend pleading down a potential serious criminality charge of impaired or dangerous driving to a criminality offense, for example, criminal mischief. When Bill C-46 comes into force in December, this strategy will become particularly important for individuals facing travel restrictions for offenses that have increased in severity classification, such as refusing a breathalyzer test.

Legal Opinion Letter

At FWCanada, we offer a Legal Opinion Letter service that can help you enter Canada, particularly in cases where admissibility issues are complicated or contentious. By analyzing all documentation related to your immigration status and criminal history, we can provide a letter of our legal opinion on your admissibility which may be delivered to a judge or defense attorney in an effort to plead down charges or support an Alternative Dispute Resolution program. Our past clients have been very successful with this approach, often reducing the severity of their offense, since many attorneys and judges are unaware of the immigration consequences for offenses categorized as serious criminality.

Furthermore, if a judge or defense attorney removes your inadmissibility as a result, we can provide another Legal Opinion Letter to present to an immigration official at a port-of-entry. This second letter is valuable in explaining the change in admissibility status and preventing confusion at the border which could delay entry to Canada.

How Can FWCanada Help you Post-Conviction?

If you have already been convicted of impaired or dangerous driving and rendered inadmissible to Canada, it can be addressed via these methods:

Temporary Resident Permit

Individuals may apply for a Temporary Resident Permit which grants temporary entry to Canada. The permit is granted at the discretion of Canadian Immigration, with consideration as to whether the individual’s admission is worthwhile to Canada. Applications can be completed at the Canadian visa office or at the port-of-entry; however, it is best to prepare a well-documented application and apply as early as possible prior to the required date of entry.

Criminal Rehabilitation

Through the process of Criminal Rehabilitation, the individual’s record can be permanently cleared according to the Canadian government, removing the issue of inadmissibility. Individuals can be eligible to apply for Criminal Rehabilitation 5 years after completing all sentencing for their conviction, this included conditions such as fines and probation.

Expungement

In the United States, expungement is a process whereby criminal records are sealed (expunged) or dismissed, removing the offense from an individual’s record. Only certain states offer an expungement option for DUIs and driving-related criminal offenses, and expungement laws differ state-to-state; therefore, individuals should first contact a local attorney, who will discuss the eligibility conditions in their state for an expungement following a DUI. While not always equivalent to a record suspension in Canada, obtaining an expungement and traveling with expungement documents can increase chances of entry to Canada, along with applying for Criminal Rehabilitation or a Temporary Resident Permit.

 

At FWCanada, we are happy to offer a free consultation to promptly provide an honest assessment of questioned admissibility cases and subsequent chances of success. As one of the leading immigration law firms in Canada specializing in criminal inadmissibility, we have extensive experience handling a wide range of cases. We prioritize detailed reviews of each client’s case to optimize application approval.

Please call on our toll-free number: 1.855.316.3555 to ask all your burning questions and remedy confusions because providing honest and accurate advice is our ethos.

FWCanada is a Montreal-based immigration law firm that provides professional legal services on Canadian immigration. For more tips and updates on Canadian immigration, follow FWCanada on Facebook, Twitter, and LinkedIn.

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