Impaired Driving Laws – Impact on Non-Canadians

Canada’s New Impaired Driving Bill and its Impact on Temporary Residents and Permanent Residents

Definition

Impaired driving is the criminal offence of operating a motor vehicle while being impaired by alcohol, a drug or both.

impaired driving

Background

On June 21, 2018, Bill C-46, the Impaired Driving Act, received Royal Assent. The bill will increase the penalties for impaired driving offences under the Canadian Criminal Code (CCC). The bill will come into force on December 18, 2018.

Bill C-45, the Cannabis Act, will legalise recreational use of cannabis nationwide starting on October 17, 2018. As the Canadian Government shows a zero-tolerance policy on impaired driving, the bill will have a significant impact on non-Canadians.

Statutory Laws re: Impaired Driving

Per section 36(1) of the Immigration and Refugee Protection Act (IRPA), temporary residents (workers, students and visitors) and permanent residents are inadmissible on grounds of serious criminality for:

  • 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 6 months has been imposed;

  • 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

  • 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.

The new section 320.14(1) CCC describes the Operation While Impaired offence (not involving bodily harm or death). According to the new section 320.19(1) CCC, the Crown may prosecute an impaired driver for a summary conviction or for an indictable offence.

Under section 36(3)(a) IRPA, an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily. Consequently, Canadian jurists will consider an impaired driving offence (not involving bodily harm or death) a serious criminality.

Permanent Residents

Before Bill C-46, permanent residents would not face removal from Canada due to a single impaired driving conviction.

Temporary Residents

In accordance with section 36(2) IRPA temporary residents are also inadmissible on grounds of criminality for:

  • having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;
  • having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament; 
  • 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 indictable offence under an Act of Parliament; or
  • committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.

Currently, temporary residents are inadmissible to Canada on grounds of criminality for a single impaired driving offence. Consequently, obtaining a temporary resident permit (TRP) and a rehabilitation is much easier. Lastly, they may qualify for deemed rehabilitation.

Once Bill C-46 takes effect, obtaining a TRP or a rehabilitation for an impaired driving offence will be more difficult. Finally, deemed rehabilitation will not be available any longer.

No Appeal for Inadmissibility

Per section 64(1) IRPA temporary residents and permanent residents who are sentenced to at least 6 months of imprisonment for an impaired driving offence will lose their right to appeal to the Immigration Appeal Division.

Case Law re: Impaired Driving

In Tran v. Canada (Public Safety and Emergency Preparedness), [2017] 2 SCR 289, the Supreme Court of Canada held that the date for assessing serious criminality under section 36(1)(a) IRPA is the date of the commission of the offence. Therefore, Bill C-46 will only impact offences committed on or after December 18, 2018.

Katharina Kontaxis, RCIC