January 2019

This past November, the Huntsville Forester reported that a criminal court judge had ruled that a canoe was a vessel under the Criminal Code of Canada.  This meant that charges against a man could go ahead for impaired operation of a vessel causing death.  He had been paddling a canoe that capsized, while allegedly impaired by alcohol.  The other occupant of the canoe, an eight-year-old boy, drowned.

On December 18, 2018, Canada increased the possible maximum jail sentence for those convicted of operating a conveyance (which includes a vessel) while under the influence of drugs or alcohol.  The maximum sentence is now 10 years, from the former 5 years.  This makes the possible immigration consequences much more serious.

In Canada, you can be inadmissible for ‘serious criminality’ if you are convicted of an offence for which the maximum sentence is 10 years or longer. This is contrasted to simple ‘criminality’, which is for offences with lesser maximum sentences.

The difference between ‘criminality’ and ‘serious criminality’ is significant.

• Permanent residents are not deported for ‘criminality’. However, if they are convicted of an offence that creates inadmissibility for ‘serious criminality’, removal proceedings could be started. Permanent residents would only be able to appeal their removal orders if their jail sentences were for less than six months. If they commit or are convicted of a DUI’s outside Canada, they will have no right to appeal, regardless of the sentence imposed.
  
  

• Formerly, temporary resident permits could be issued for foreign nationals with DUI offences by most minister's delegates. Now, it will require approval of a program manager or director. Applying for a TRP at the port-of-entry, which is commonly done by US residents, will become more difficult.
  
  

• It is not possible to be ‘deemed rehabilitated’ of an offence that leads to serious criminality, regardless of how much time has passed since the sentence was completed. Previously, if 10 years had passed, you could be ‘deemed rehabilitated’. Now, everyone with a DUI offence committed outside of Canada will have to apply for rehabilitation. This process can take a year or longer, and now carries a government application fee of $1,000. You cannot apply for rehabilitation until 5 years have passed since you completed your sentence. Those with Canadian DUI offences will need to apply for record suspensions. These applications can only be made five years after the conviction.
  
  

• Individuals with ‘serious criminality’ cannot make a refugee claims in Canada.
  
  

• Citizenship applications will be delayed or voided if the DUI charges proceed by indictment, as opposed to the less serious summary process.

Fortunately, the new law will only apply to offences committed after it came into effect, as a result of a recent Supreme Court of Canada decision that limits retrospective application of new laws.  Accordingly, those with DUI offences from before December 18, 2018 will not be considered to have committed ‘serious criminality’ but only ‘criminality’, and permanent residents with historic DUI offences should not be facing deportation proceedings. 

The potential impact of this legislative change is not lost on some politicians. Senator Ratna Omidvar has been pushing for changes to reduce the impact on permanent residents.  Also, the Canadian Bar Association has advocated for changes to Canada’s immigration laws either to allow appeals for deportations due to DUI offences, or to state that DUI offences are not ‘serious criminality’ for inadmissibility purposes.  Unfortunately, there has yet to be a government response. 

Coupled with the legalization of cannabis on October 17, 2018, these changes could have a wide impact. I have been procrastinating sending out this month’s newsletter, hoping that the Canada Border Services Agency would have published guidance on how officers are to use their discretion in determining whether to pursue enforcement action.  However, we have yet to see an Operational Bulletin from CBSA to date. 

In the interim, I would highly recommend hanging up your paddle if you’ve had one too many.