There are likely well over a million permanent residents in Canada. All of them now face potential deportation from Canada upon conviction for a single offence for which they almost certainly won’t go to jail after Parliament bumped the maximum punishment for impaired driving from five to ten years. Parliament never intended this result. But sometimes the law is all about unintended consequences. Here’s what you need to know about the risks of this legal change and how to manage them if you have PR or other non-citizen status in Canada.

Parliament’s Legislative Intent for Impaired Driving

For a first offence of impaired driving, Parliament intended a combination of deterrence, denunciation and rehabilitation measures that it hoped would reduce impaired driving by imposing mandatory minimum fines which ensured those convicted received a criminal record and at least a one year driving prohibition. And provinces have been permitted to soften the blow a bit to promote rehabilitation through offenders getting licences back earlier upon taking courses and installing interlock devices on vehicles.

Parliament’s goals have been met, as rates of impaired driving across Canada have been dropping over a multi-decade period.

We could debate the morals of banning large numbers of people from Canada for impaired driving if that had been Parliament’s intent. But it wasn’t. It was only after marihuana law reform had solidified in its final draft stages that it became apparent what the impaired driving reforms would do to non-citizens. And so far the government hasn’t moved to fix the situation, because as we all know government can move very slowly.

When the maximum penalty for impaired driving was five years imprisonment, I’d never heard of anyone receiving anything close to that unless it was in combination with other much more serious offences - like manslaughter - which had their own much higher penalties. Everyone convicted for the first time of impaired driving, and nothing else, receives a fine (at least in all the jurisdictions I’ve practiced in). The only question is how much. On subsequent offences, mandatory minimum jail sentences start to kick in. But we’re talking days and months. Not years. So booting the top sentence from 5 years to 10 years arguably did nothing other than potentially harm permanent residents.

Impaired Penalties Have Changed Little Over Time

Canada’s drinking and driving laws since their first enactment in 1921 have changed a lot less than many people think. Initially the mandatory minimum penalty was seven days imprisonment on a first offence, 30 days imprisonment for a second offence, and 90 days for a third offence, which is extremely similar to the current setup other than the first offence having being dropped to a fine as minimum punishment, and the third offence being bumped up to a 120 days.

There have been lots of technical tweaks to drinking and driving laws since 1921, particularly to accommodate the introduction of the breathalyzer which first showed up earlier than most people would assume in 1954. But the fundamental core outcomes of deterrence, denunciation and rehabilitation have not changed. Until now, when it effectively became an anti-immigrant offence.

Impaired Driving is the Second Most Common Criminal Offence in Canada

Charges of impaired driving constitute over 10 % of all criminal court dockets, making it the second most common offence in Canada after theft. There are over 70,000 charges of impaired driving annually in Canada (using 2016 figures). 

But unlike theft where an offender can receive a “discharge” which means there is a finding of guilt, but no “conviction,” impaired driving has a mandatory minimum fine attached to it guaranteeing a criminal record. A discharge isn’t a possible outcome. So the consequences for permanent residents (and others) may be dire.

The Huge Immigration Impact of Impaired Driving Amendments

A Government of Canada press release from 22 October 2018 perhaps best sums up the serious consequences of the impaired driving offence changes for PRs (and other non-Citizens):

If you commit an impaired driving or a cannabis-related crime, you could face a fine, criminal charges or jail. However, we may also find you inadmissible to Canada for serious criminality. It doesn’t matter if the crime happened inside or outside Canada. This means:

  • permanent residents may lose their status and have to leave the country

  • temporary residents (including visitors, international students and foreign workers) may not be able to enter or stay in Canada

  • refugee claimants may not be eligible to have their claim referred for a refugee hearing

Appeal rights for permanent residents and foreign nationals, including sponsored members of the family class, could also be affected.

https://www.canada.ca/en/immigration-refugees-citizenship/news/notices/impaired-driving-cannabis-penalties-affect-immigration-status.html

This is all very, very bad.

Why Impaired Driving Amendments Raise Fairness Concerns For Immigrants

The cutoff for immigration “serious criminality” is a maximum available punishment of 10 years or more, so suddenly all non-citizens can be caught in a trap set by this second most common offence in Canada. Now you might be saying, “hey, it can’t happen to me!” Or, “yeah, they deserve it!” But there are lots of permanent residents who may be convicted of very serious offences for which they do significant jail time - say 2 years imprisonment for $2 million in income tax evasion - who won’t have any risk of deportation because the maximum penalty for tax evasion is five years imprisonment under the Income Tax Act.

So you could get deported for a $1500 fine offence, but don’t get deported after two years imprisonment. Make sense? Well, unfortunately that’s just the way it is now. So what to be done?

Top 4 Tips for an Impaired Driving Immigration Defence Plan

So if you’re a permanent resident (or have other Canadian immigration status short of citizenship) who is facing an impaired driving charge, or have a family member or friend in that situation, what should be done? As a lawyer practicing both immigration and criminal defence law, my suggestions are:

  1. NEVER PLEAD GUILTY to impaired driving if you’re not a citizen and need to retain your right to be in Canada. Fighting it out to trial means you have a chance of acquittal - even if a small chance - and the penalty you receive after trial on a first offence is usually almost identical to the penalty you would have received on a plea. They’ll usually both be fines.

    Just the fine after trial will be a bit higher (as in hundreds of dollars higher, not thousands). An early plea might get you your licence back a bit sooner if you complete a provincial course and install an ignition interlock device on your vehicle, but that’s irrelevant if you’ve been deported back to your country of origin. 

  2. HIRE A CRIMINAL DEFENCE LAWYER. Hiring a lawyer to professionally defend you for an offence like this won’t bankrupt you . This will likely only be about a one day trial. So total work by a lawyer might be about three days. Maybe four. This won’t be a multi-week fraud or murder trial that would test the financial resources of even the wealthiest accused.

    Virtually all criminal defence lawyers offer block flat fees, so you’ll know up front what the defence will cost. Absolutely don’t try to run a trial yourself. Winning a DUI trial is hard enough even for experienced lawyers. 

  3. IF YOU’RE CONVICTED, HIRE AN IMMIGRATION LAWYER. If you can afford it, hire an immigration lawyer prior to conviction to collaborate with you criminal lawyer. While not everyone who is convicted of an offence for which immigration criminal inadmissibility can be triggered will receive a letter from the CBSA/IRCC, you’ve got to prepare in advance for this outcome since you might not have long to respond when you do get a letter. You might have immigration law arguments available to you to fight back against removal from Canada.

  4. HAVE A BACKUP PLAN. It’s possible that despite all your efforts, you might still lose your permanent residency or other status in Canada after an impaired conviction. But this doesn’t mean that all your future involvement with Canada is hopeless. You may still have options of seeking special permission to return to Canada in the interim (especially if you can demonstrate compelling grounds), and of applying for criminal rehabilitation in 5 years. 

Gordon S. Campbell practices immigration law throughout Canada and criminal defence law throughout Ontario. He’s served as legal counsel to the CBSA, IRCC, Justice Canada, and is author of The Investigator’s Legal Handbook series of books. Learn more at compleximmigration.ca and defenceeast.com.