A change in 2018 that now allows a maximum penalty of 10 years imprisonment for impaired driving has impacted the eligibility of those who have been convicted of an impaired driving charge and are seeking or have permanent resident status in Canada.

In 2018, Bill C-46 became law and cracked down on drivers under the influence. This change means that an impaired driving charge may now result in 10 years imprisonment. This has had a significant impact on those seeking, and those who have obtained permanent resident status in Canada.

The Immigration and Refugee Protection Act ("IRPA") lays out the inadmissible conduct that falls under "serious criminality". Section 36(1) reads as follows:

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.

As laid out above, there are a number of offences under this section of IRPA that would deem an individual "inadmissible" to Canada. With the changes that came into force with Bill C-46, impaired driving is now one of them. The result is that it does not matter whether you were sentenced to the maximum penalty. If you were convicted of an act that is punishable by a maximum term of imprisonment of at least 10 years, you are inadmissible to Canada on grounds of serious criminality.

For foreign nationals seeking entry into Canada, the repercussion of being deemed inadmissible means that they would likely be refused entry into Canada even for a short visit. For permanent residents of Canada, being deemed inadmissible means that they may lose their permanent resident status and are at risk of facing deportation. Whether convicted of a DUI in Canada or another country, the risk remains the same.

After a DUI conviction, Canada Border Services Agency ("CBSA") will notify the offender that the offence is considered a "serious criminality" offence. The offender would then have an opportunity to respond and CBSA would determine whether or not to prepare a Section 44 report to commence the deportation process and hold an admissibility hearing. The admissibility hearing is held before the Immigration Division of the Immigration and Refugee Board of Canada (IRB). This hearing is to determine whether CBSA was correct in labelling the offender as someone who meets the definition of "Serious Criminality" under the Act. If the Board determines that the offender meets the "Serious Criminality" definition, the offender is now inadmissible to Canada, and the Board will issue a removal order. It is important to note that there is no appeal option for permanent resident DUI offenders who were sentenced to 6 months or more of prison time.

It is imperative that permanent residents of Canada fully understand the immigration repercussions of a DUI conviction before entering a guilty plea to a DUI charge. Criminal lawyers will often wisely advise their client to plead guilty (often when presented with multiple charges being dropped in exchange for a guilty plea to the DUI), but without fully considering or understanding the effect this will have on their client's permanent resident status in Canada.

This blog was co-authored by articling student Samantha Lawr.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.