Impaired Driving Penalties and Non-Canadian Citizens
I am not a Canadian citizen. Should I worry about becoming inadmissible with the new impaired driving and marijuana-related penalties?
Now, more than ever, it is important to be aware of your status in Canada. Unless you are a Canadian citizen, you could be deemed inadmissible, which could cause you to lose your status. Even after becoming a permanent resident, you can still be deemed inadmissible and no longer allowed to remain in Canada.
There are several reasons that a person can be deemed inadmissible to Canada, such as:
- Security risk (espionage, subversion, violence, or terrorism or membership in an organization involved in any of these);
- Human or international rights violations (war crimes, crimes against humanity, being a senior official in a government engaged in gross human rights violations, or subject to international sanctions);
- Conviction of a crime or serious crime, or committed an act outside of Canada that would be a crime or serious crime in Canada (a serious crime is considered a crime that would be punishable by a maximum prison term of at least ten years in Canada);
- Ties to organized crime (membership in an organization that takes part in organized criminal activity, people smuggling, or money laundering);
- Serious health problems (endanger public health or cause excessive demands on health or social services);
- Serious financial problems (unwilling or unable to support yourself and family members);
- Misrepresentation (providing false information or withholding information directly related to decisions made under the Immigration and Refugee Protection Act);
- Failure to comply with any provision of the Immigration and Refugee Protection Act; or
- One of your family members is not allowed into Canada.
This article is going to focus on inadmissibility due to the conviction of a crime.
The offender is convicted in Canada of an offence that is punishable by way of indictment, or, of two summary conviction offences not arising out of a single occurrence.
The offender is convicted in Canada of a crime punishable by a maximum term of imprisonment of at least ten years or in which a term of imprisonment of more than six months has been imposed.
Both matters also apply if the offender has committed, or been convicted of, crimes outside of Canada that would be punishable by the above terms if committed in Canada.
Criminality to Serious Criminality
With marijuana now legally available in Canada, the federal government has made some changes and additions to the laws governing impaired driving and marijuana-related crimes.
On October 17, 2018, the new cannabis-related penalties took effect. Cannabis-related crimes include: illegally producing, distributing, or selling cannabis and illegally importing or exporting cannabis or cannabis-related products across Canada’s international borders. Most of the penalties for these offences will have a maximum term of 14 years.
On December 18, 2018, new impaired driving penalties will take effect, which will result in most impaired driving offences being considered serious crimes. The maximum penalty for most offences will increase from five to ten years.
For an offender to qualify for deemed rehabilitation, the maximum term of imprisonment in Canada must be less than ten years. This means that options to remain in Canada after committing/conviction of an impaired driving or marijuana-related charge are limited to the process of applying for individual rehabilitation, obtaining a record suspension, or obtaining a temporary resident permit.
Individual Rehabilitation – Serious Criminality
To be eligible for individual rehabilitation for a serious criminal offence, the applicant must show that he or she meets the criteria, has been rehabilitated, and is highly unlikely to take part in further crimes.
To apply, the individual must be five years from the completion of the sentence or the commission of the offence. If a person was convicted of a serious crime, then they would not be able to apply for individual rehabilitation until after the completion of the jail term, payment of fines, completion of probation conditions, and end of driving prohibition, plus five years.
For example, if there was a sentence of two years of imprisonment followed by a driving prohibition of five years, then it would be 12 years before the offender would be eligible to apply for rehabilitation (seven years total sentence followed by five years of a clean record). This means that for 12 years the person is inadmissible to Canada. If the person was sentenced to a ten-year driving ban and a fine, then the five-year count would start after the driving ban and the fine has been paid.
Record Suspension (formerly known as a pardon)
If the offender was convicted in Canada, then he or she may apply for a record suspension. To be eligible to apply, the offender must wait ten years after the completion of their sentence for an indictable offence. Again, the offender would be inadmissible for a minimum of ten years, and likely much longer.
Temporary Resident Permit
A Temporary Resident Permit (TRP) can allow an inadmissible person to enter/remain in Canada for a specific period of time. The need of the applicant to enter Canada must outweigh the health or safety risks to Canadian society, as determined by the CBSA officer. In some cases, an individual would apply for a TRP to enter Canada on a temporary basis to attend a specific event, such as a wedding, speaking engagement, or other event. The bar to overcome inadmissibility to remain in Canada as a permanent resident is much higher than that of a temporary visit. There must be a very compelling reason for the officer to allow this.
Even if an applicant can obtain a TRP to allow them to remain in Canada, the TRP can be revoked at anytime. Until an individual has been approved as rehabilitated, an inadmissible permanent resident will have to adhere to any conditions set out by IRCC. The TRP will have an expiration date, so it will be up to the applicant to apply for a new document in a timely manner.
Regardless of your status in Canada, it is always a good idea to be aware of the laws and obey them at all times. Be aware of the impaired driving penalties, as well as the new marijuana laws. Your future in Canada could depend on it.