Law Times

Law Times • JuLy 9, 2018 Page 5 www.lawtimesnews.com Stricter laws on impaired driving may affect immigrants BY ANITA BALAKRISHNAN Law Times C hanges to the federal Criminal Code could affect prospective im- migrants who are con- victed of impaired driving of- fences inside or outside Canada, lawyers say. Without intervention from federal Immigration Minister Ahmed Hussen, Canada could end up with a "draconian" im- balance between how offences related to impaired driving apply to citizens versus immi- grants, say lawyers. On June 21, Bill C-46 received royal assent. In addition to making pro- visions for testing blood alco- hol levels and blood drug con- centrations, the bill altered the Criminal Code by increasing certain maximum penalties and certain minimum fines relating to impaired driving. In particular, the new law states that "if the offence is pros- ecuted by indictment" the of- fender could be subject to "im- prisonment for a term of not more than 10 years." "If an individual who is a permanent resident of Canada is convicted of a DUI, it will be considered a serious offence. It makes a person inadmissible and can lead to removal," says Barbara Jo Caruso, founder of Corporate Immigration Law Firm PC in Toronto. "And because of prior legisla- tion . . . there are limitations of ways to appeal." Michael Greene, a partner with Sherritt Greene Immigra- tion Law in Calgary, says that, as a consequence of the legislative change, which comes into force 180 days after royal assent, being convicted of impaired driving either within or outside Canada would be deemed a "serious criminality" under the Immigra- tion and Refugee Protection Act. The Immigration Law Sec- tion of the Canadian Bar Asso- ciation, which has about 1,000 members, raised these issues in a December 2017 letter. Currently, a person who is convicted of driving while im- paired by pot or alcohol could re- ceive up to five years of jail time, says the CBA letter. However, the CBA section noted in the letter that Bill C-46 "would change the maximum penalties for impaired driving, to make any driving un- der the inf luence equivalent of- fence to 'serious criminality.'" The CBA letter goes on to say that Bill C-46 "will have a far- reaching effect on the criminal inadmissibility of foreign na- tionals and permanent residents who have been convicted of an impaired driving (or related) of- fence — regardless of how much time has passed since comple- tion of the associated sentence." The change to 10 years poten- tial sentence from five years po- tential sentence is important to permanent residents in Canada, says Gordon Maynard of May- nard Kischer Stojicevic Citizen- ship & Immigration Lawyers, in Vancouver. Maynard says that, prior to the C-46 changes, a conviction for a simple impaired driving of- fence, where no bodily harm or death has occurred, didn't trig- ger the process of a permanent resident losing their immigra- tion status, unless there was a six-month sentence imposed. Now, with the higher maximum potential sentence extended to 10 years, any conviction for im- paired driving in Canada may initiate permanent residents' loss of status proceedings. Maynard says this leads to a "serious problem" that will affect permanent residents who actu- ally receive six-month sentences in Canada or who are found to have committed a similar im- paired driving offence outside of Canada, like while they're on vacation. "These permanent residents will find themselves losing their [permanent resident] status and being ordered deported without any right of review by the appeal division," Maynard says. In the past, there have been ways for Canadian permanent residents, foreign nationals and other visitors to show they have been rehabilitated from prior offences or to apply for a special permit in certain circumstances. But many of those options will either become very time consum- ing or be removed now that im- paired driving is considered "seri- ous criminality," lawyers say. Specifically, the issue has been further complicated by Bill C-43, Faster Removal of Foreign Criminals Act, which received royal assent in June 2013. That bill removed the right to appeal inadmissibility and deportation in certain cases involving seri- ous offences. Foreign nationals seeking en- try to Canada who were admis- sible under the old rules for prior drug offences in a foreign country could find they are unable to enter Canada without first obtaining a temporary resident permit, says Jacqueline Bart of BartLAW Ca- nadian Immigration Barristers and Solicitors, in Toronto. Those who are seeking to immigrate to Canada may also need to obtain a status of lifetime rehabilitation — which can be a lengthy process that could drag on for five years or more, Bart says. A temporary resident per- mit can require $200 in non- refundable fees and sometimes also requires interviews and separate applications through a local visa office, according to the Canadian immigration office website. A person is not eligible to apply for rehabilitation until five years have elapsed since the completion of the sentence — including fines, conditions and probation, Bart says. Then, Bart says, processing times for reha- bilitation applications can take between three months and two years or more, depending on the circumstances. "That's a long time; that's a serious punishment," Bart says. "Rehabilitation is important, but so is a balanced approach to this. People make mistakes, and that doesn't mean they need to instantly have their life ruined." The CBA's letter also raised the issue of the increased de- mand on Canada Border Ser- vices Agency resources. "This change of the law will mean that Immigration Tribu- nals [the Immigration Division and the Immigration Appeal Division] will become busier," Maynard says. If the government wants to avoid these issues for impaired driving offences, separate immi- gration rules will need to be cre- ated, since the government will not change the Criminal Code to fit into the Immigration Act, Bart says. Caruso says the bar associa- tion is in the process of making submissions and would like to see the restoration of appeal rights for permanent residents that are convicted of serious offences, so they can argue hu- manitarian grounds. Other solutions that could help would be grandfathering in the rules for past offenders and allowing first-line officers to grant temporary resident per- mits, which could cut down on waiting times, Caruso says. "The bar association has been all over this issue since last fall, and I think it's very clear that in the rush to legalize cannabis, the government wanted to send a very strong message to the pub- lic that they would be tough on DUIs and other drug offences," Caruso says. "In doing so, they did not take into consideration the implica- tions of immigration." LT NEWS Untitled-1 1 2018-06-28 12:05 PM www.mckellar.com We would like to thank all those who took part in THE 20 TH ANNUAL McKELLAR CHARITY GOLF DAY on Monday, June 18th, 2018. This event raised $19,350.00 for wicc (women in insurance cancer crusade) for use and support in their fight against cancer. A special thanks goes out to our sponsors for this event: TITLE SPONSOR FINANCIAL HORIZONS GROUP PLATINUM SPONSORS SUN LIFE FINANCIAL MANULIFE FINANCIAL BMO LIFE ASSURANCE COMPANY BRONZE SPONSOR CREW MARKETING PARTNERS We appreciate your support! ntitled-4 1 2018-07-04 10:50 AM Barbara Jo Caruso says 'in the rush to legal- ize cannabis, the government wanted to send a very strong message to the public that they would be tough on DUIs and other drug offences.'

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