Bill C-46 BILL C-46
Canada Double-Downs on DUI and Reckless Driving Offences with Severe Consequences to US and International Travelers
(and our tourism industry)
By Marc Laforce, RCIC
FOR IMMEDIATE RELEASE
Dallas, Dec. 6, 2018. Following passage of Bill C-46 on June 21, Canada’s impaired and dangerous driving penalties will increase to a maximum penalty of 10 years from 5 years for a non-aggravating (no injury or death) first offence starting December 18, 2018. As you may have suspected, this was part of the “deal” to passing the legalization of cannabis in Canada on October 17th.
For more information about this rule change, please visit the government announcement on impaired sentencing here:
https://www.justice.gc.ca/eng/cj-jp/sidl-rlcfa/
The significance of this draconian change is material to US and international travelers with a DUI/DWI or reckless driving offence on their record, including “wet reckless” and their derivatives such as a refusal (“failure to provide sample”) or eluding police (“flight”). Come December 18, all of these charges will make you criminally “inadmissible” to Canada under “serious criminality”. When criminally “inadmissible”, you are barred from entering Canada even if just visiting for a day for a business meeting or traveling on international waters on an Alaska Cruise.
Prior to December 18, 2018, travelers with offences that are punishable by a maximum penalty of less than 10 years, such as the current impaired driving offence, are inadmissible under “regular” criminality. Offences that are punishable by a maximum sentence of 10 years or more will render a traveler inadmissible under “serious criminality”.
The difference between “regular” versus “serious” criminality cannot be overstated. Under serious criminality, you may be deported with no rights to an appeal even if a permanent resident of Canada. For US and international travelers, a foreign national who is inadmissible under “regular criminality” may apply for a special waiver, called a “temporary resident permit” (TRP), either at the consulate or directly at the airport or border if he can show a compelling need such as an important business meeting or family event such as a wedding. A Border Service Officer (BSO) has delegated authority to issue a TRP under regular criminality. However, if inadmissible under “serious criminality” only the most urgent or dire circumstances will be considered as concurrence from Headquarters in Ottawa or a Superintendent is required to issue the TRP.
The higher sentencing for first DUI offenders will also adversely impact your ability to cure your inadmissibility. Up until December 18, if you had a single blemish on your record, you will be “forgiven” if ten years have elapsed since completing your sentence. Today, anybody with a DUI conviction in 2007, who served a year of probation, will be “deemed rehabilitated” under the 10-year rule if there’s no other offence on your record. Under “serious criminality”, the passage of time will no longer automatically cure ones inadmissibility. To resolve your issue, you will need to make a formal application for rehabilitation at the consulate or embassy serving your country; an onerous process that will take at least a full year to adjudicate if professionally handled.
More dramatically, Minister of Immigration, Refugees and Citizenship Ahmed Hussein appears to suggest that deemed rehabilitated persons following the 10-year period will NOT be treated retroactively unless they have been previously been “determined” (i.e. assessed by an officer) to be rehabilitated prior to 12/18. This means that if you received a misdemeanor DUI in 1977 and never had a need to be travel to Canada until now, say for a 50th anniversary Alaska cruise (even if not touching the ground), you may not be able to apply for deemed rehabilitated status on the 10-year we-forgive-you rule. While this firm fervently disagrees with this interpretation, applying the law retroactively is certain to create havoc and confusion at the border not to mention a barrage of consular applications (which will exacerbate delays) and an inevitable Supreme Court appeal all the while putting a significant dent to our tourism industry. To put this in perspective, a person convicted for domestic violence (max penalty 5 years), theft (max penalty of 5 years if under $5000), possession of crack cocaine (7 years) and assaulting a police officer all fall under “regular criminality”. For the purposes of immigration law, a DUI in Canada is now in the same company as sexual assault (10 years max penalty), assault with a weapon (10 years), obstruction of justice and drug trafficking. We allowed about 18000 “irregular border crossers” last year (those claiming asylum status after first entering Canada illegally) and yet we’re the only country in the world that will potentially bar a traveler from attending a two-day trade show on a count of a DUI that occurred when the Bee Gees were still popping the charts. To paraphrase Michael Keaton, it seems that Canada is now in the business that invites narcissism, self-involvement and rules and regulations being blown out of proportion.
Of course, we know that the vast majority of BSOs, the ones tasked to enforcing the disproportionate rules, are likely to treat a single DUI case very differently from the much more serious offences. Altogether, we find BSOs to be professional, fair and very capable of using perspective and common sense when enforcing the rules or assessing a TRP. Nonetheless, the point here is that a DUI, at least statutory-wise under the Immigration Refugee and Protection Act, is in the same category as a sexual predator.
As such, commencing December 18, a traveler with a DUI conviction will require a lot more relevant documentation and preparation to obtain his TRP. In similar vein, he will also require a robust application to permanently overcome his inadmissibility when submitting an application for criminal rehabilitation under “serious criminality”.
There are also important secondary effects to the sentencing changes as well. In theory, border service officers will receive the proper training to know that a DUI in the “past” (i.e. pre 12/18) is not subject to these legislative changes. Both Mr. Hussen and officials at the Canada Border Service Agency (CBSA) have reiterated that border service officers will only treat post 12/18 DUI convictions as “serious criminality” offences. However, from experience on the ground, it is exceedingly unlikely that ALL CBSA agents throughout 1095 point-of-entries will come to know how to time-stamp these legislative changes- especially after some passage of time when dates tend to get muddled. In fact, it is quite apparent that even today, with barely six months after the legislative change that a number of CBSA officers didn’t get the memo. Since the tougher sentencing law received royal ascent in June, our firm has already had a number of unpleasant encounters with border service officers warning DUI clients not to come back after December 18 without a consular approval letter. As many of us experienced firsthand no matter what country you fly into, it is quite a feat to argue with a border service officer when he’s factually wrong with the law once his mind is made up. Good luck with that.
In short, if you have a DUI or reckless driving offence and if your travel to Canada is important, you need to work with a firm that has experience with these issues.
On average, our firm of 9 people will prepare one admissibility application per day. Admissibility is our core practice area. We have experience in presenting robust and credible paperwork at the border or consulate so you can conduct your important business–including important family business. Do not leave your entry to chance. To learn more about our admissibility packets, click here.
For a confidential consultation, please reach out to Robin at 888-827-6605 or e-mail Robin directly at robin@globalrcic.com to schedule a session.
If you are a current client or for information on what we can do if you already obtained a TRP or have (had) deemed rehabilitated status,CLICK HERE
