As of December 18, 2018, Canadian permanent and temporary residents who get an impaired driving conviction following that date may face deportation, in addition to the regular criminal punishments. Due to a change in laws that some immigrant advocates and lawyers are calling “unfair” and “inhumane”, an impaired driving conviction could soon trigger a deportation hearing for permanent residents – far greater than the consequences for citizens. An alarming prospect for many immigrants, a single DUI could mean leaving their home and family, even in cases where nobody was hurt and the offender has no prior criminal record.
Coming into effect in a few weeks, Bill C-46 enacts changes to Canada’s criminal code that increase the maximum penalties for impaired driving (by alcohol or cannabis) from 5 to 10 years. As a result, these offences are now considered “serious criminality” – any permanent resident convicted of a “serious” criminal offence can face deportation, according to the Immigration and Refugee Protection Act.
When Bill C-46 is in force, a permanent resident who serves a sentence of more than 6 months for impaired driving will be subject to a deportation hearing. Temporary residents, including international students and foreign workers, may not be able to stay in Canada, and refugee claimants could lose the ability to refer their claim to a refugee board.
Some permanent residents have lived legally in Canada since childhood and have no home or ties outside of the country. Many have established businesses and families here, while others have arrived as refugees. Soon, these people could be permanently banned from Canada for a single mistake, potentially separating them from their families and livelihood.
While impaired driving is dangerous and DUI laws should be respected and enforced, the new punishments will have a disproportionate effect on permanent residents, compared to Canadian citizens who commit the same crimes. While both are punished through the criminal system, as they should be, permanent residents face added penalties through the immigration system. This is a “double standard” – permanent resident are subject to the same fines or imprisonment as citizens, yet they also risk losing their home, family, or business.
For reference, other crimes for which permanent residents lose their status include terrorism, subversion against the government, and violent acts. Arguably, a single instance of impaired driving in which no one was harmed should not classify among these crimes.
Border security minister Bill Blair has stated that the purpose of the new laws is to deter people from driving high, after the recent legalization of marijuana across Canada. Yet the government has not adequately addressed concerns about the legislation’s impact on immigration. Critics of Bill C-46 include the Senate of Canada and the Canadian Bar Association, which called the increased DUI penalties “severe” and “unnecessary”.
Tricky Situation for Judges
The changes under Bill C-46 may also put judges in a difficult situation. A judge should be able to impose a fair sentence as they see fit, without bearing the burden of inducing much broader consequences from their sentencing.
For example, a judge may think the appropriate sentence in a specific DUI case is one year imprisonment, but they might also believe that the offender – a longtime permanent resident with a business in Canada – does not deserve to be deported. In order to ensure that the offender can stay in the country and avoid a deportation hearing, the judge would have to impose a sentence of less than six months, which the judge sees as less than proportional to the offence.
Moreover, if a judge does decide to impose a lesser sentence in consideration of the offender’s immigration status, a court of appeals could still overturn the sentence, as was the case recently in Manitoba. Judges should not need to compromise a just evaluation of a case due to the knowledge that their sentencing could force a permanent resident to leave the country.
Raising Awareness among Immigrants
Immigration support and education groups are hard at work trying to spread awareness about the legislation changes. At this time, the best solutions for permanent residents are to be as educated as possible on the immigration consequences of any criminal offence, and to obtain Canadian citizenship as soon as they are eligible.
Immigration Minister Ahmed Hussen has recognized the significant pressure he has received from immigrant and refugee advocates, as well as lawyers. He has ensured permanent residents that a conviction does not mean they will automatically be kicked out of country. While everyone is entitled to due process before a decision on deportation is reached, the prospect of a deportation hearing is still undeniably scary for many immigrants and their families.
While it makes sense to deport repeat criminals, a first-time DUI offender with no other criminal history, especially in cases where no one was hurt, should have the opportunity to pay appropriately for their actions and be rehabilitated, rather than be forced out of their home.
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.