Periodically, when the need arises to provide information that Mr. Oberman does not feel qualified to give, guest posts are provided to the readers of this blog. Given that Mr. Oberman is not licensed to practice law in Canada and the fact that he does not practice in the field of immigration law, he asked Canadian attorney Marisa Feil to write a guest blog about the implications relating to Canadian Bill C-46, which will take effect in December of 2018. This law increases the punishment for impaired driving by alcohol and/or drugs. In addition, this amendment to the current law will to make it more difficult to enter Canada for work, pleasure or other purposes. Please read her article below for more information.
About the Author: Steven Oberman has been licensed in Tennessee since 1980, and successfully defended over 2,500 DUI defendants. Among the many honors bestowed upon him, Steve served as Dean of the National College for DUI Defense, Inc. (NCDD) and currently serves as chair of the National Association of Criminal Defense Lawyers DUI Committee. Steve was the first lawyer in Tennessee to be Board Certified as a DUI Defense Specialist by the NCDD.
He is the author of DUI: The Crime & Consequences in Tennessee, updated annually since 1991 (Thomson-West), and co-author with Lawrence Taylor of the national treatise, Drunk Driving Defense, 8thedition (Wolters Kluwer/Aspen). Steve has served as an adjunct professor at the University of Tennessee Law School since 1993 and has received a number of prestigious awards for his faculty contributions. He is a popular international speaker, having spoken at legal seminars in 30 states, the District of Columbia and three foreign countries.
If you would like to contact the author, please visit: http://www.tndui.com
Canada Increases DUI Penalties: How to Travel with a Conviction
New Legislation Impacts Admissibility to Canada for Americans with DUIs
The Canadian government recently passed Bill C-46, creating harsher consequences for impaired driving as well as new offences for driving after consuming drugs, particularly marijuana. The increased severity of punishments will have significant implications for Americans wishing to travel to Canada.
Due to take effect in December 2018, the Bill will amend the Canadian Criminal Code and related legislation, including the Dangerous and Impaired Driving Act. It will also grant police greater powers to test drivers for impairment, with subsequently stricter punishments for noncompliance with police procedure, for example refusing drug or breathalyzer testing.
The maximum penalty for dangerous driving offenses, including impairment, driving while prohibited, and noncompliance, will increase from 5 to 10 years. This higher penalty means that these offenses will now be categorized as “serious criminality”, rather than regular “criminality”. As a result, Americans with dangerous driving offenses will likely face greater difficulty in entering Canada. In order to boost chances becoming admissible to Canada, pleading down a DUI charge to a lesser offense will be increasingly valuable to avoid inadmissibility.
Dangerous Driving and Admissibility: The Current Situation
Criminality versus Serious Criminality
The rules regarding admissibility to Canada are established in the Canadian Immigration and Refugee Protection Act. When determining if an individual is admissible, it categorizes offenses as either “criminality” or “serious criminality”. Currently, individuals with a DUI have criminality status, since dangerous driving offenses hold a maximum penalty of 5 years.
Criminality cases occur when a committed offense is punishable by indictment in Canada (or an equivalent offense abroad). Foreign nationals (FNs), including temporary residents (TRs) are deemed inadmissible for offenses in the criminality category.
Alternatively, serious criminality occurs when an offense results in a maximum punishment of at least 10 years (or equivalent offense abroad), or when an individual criminally convicted in Canada serves a prison sentence of 6 or more months. Within serious criminality, both FNs (including TRs) and permanent residents may be deemed inadmissible.
Convicted individuals may overcome their inadmissibility to Canada in the exceptional circumstance that their record is suspended (offence is pardoned), or if they are accepted for Criminal Rehabilitation (applicable 5 years after completing sentencing). For FNs and TRs who have criminality status (not serious criminality), they may be automatically deemed rehabilitated if only one offence was committed at least 10 years ago, effectively resolving issues of inadmissibility to Canada.
Dangerous Driving Laws in Canada
Dangerous driving due to alcohol or drug impairment are both current criminal offenses in Canada. However, existing legislation only prescribes a standardized blood concentration limit for alcohol, not drugs. With this in mind, the legalization of marijuana across Canada in October 2018 (Bill C-45, the Cannabis Act) now provides a clear need to prescribe blood concentration limits for drugs. Relevant changes to the Criminal Code under Bill C-46 address this need by limiting the quantity of THC (the main psychoactive component of cannabis) permissible in drivers’ bloodstreams.
Changes under Bill C-46
The new legislation, Bill C-46, adds new offences to the Canadian Criminal Code, augments maximum penalties and introduces minimum penalties for some existing offences, as well as gives police greater powers to test drivers for impairment.
Expanded Testing Powers for Police
Previously, police could lawfully only administer a breathalyzer with reasonable suspicion that an individual was driving under the influence of alcohol. However, new legislation will allow police to conduct random roadside alcohol breathalyzing.
Police will also be equipped with new screening tools to test drivers’ saliva or blood for drugs in their system; however, unlike alcohol testing, a drug test may only be conducted under reasonable suspicion of drug use. To accompany the legalization of marijuana, a prescribed blood concentration limit for drugs will be set.
Bill C-46 establishes 3 new offences for driving under the impairment of drugs: a presence of a low-level blood drug concentration (2 to 5 nanograms of THC per milliliter of blood*) which will be punishable by a maximum of $1000 in fines; an offence of driving impairment due to a high-level blood drug concentration (more than 5ng/ml*); and an offence of driving impairment due to a mixed blood drug and alcohol concentration (2.5ng/ml plus 50mg alcohol per 100ml*).
*The THC level limits laid out above are those currently proposed by the government; however, they are not formally established.
With considerable implications for Canadian admissibility status, Bill C-46 will increase the maximum penalty from 5 years to 10 years for offenses of:
- Dangerous operation
- Operation while impaired
- Failure or refusal to comply with a demand (e.g. to refuse a breathalyzer test)
- Failure to stop after an accident
- Flight from a police officer
- Operation while prohibited (e.g. with a suspended license)
Moreover, the classification of the above offenses will change from criminality to serious criminality.
The maximum penalties will also increase from 10 to 14 years for driving-related offenses causing bodily harm, and from 14 years to life imprisonment for driving offenses causing death. Since these offenses are already considered serious criminality, however, the legislation change will not create a further impact on admissibility for individuals with these convictions.
Impact on Travel to Canada
Admissibility to Canada with a DUI will become much more complicated, challenging and expensive. In Canada, the more frequent random alcohol testing, the newly introduced drug testing, and the greater maximum penalties are also likely to increase the number of convictions for noncompliance with police procedure, which may result in more people finding themselves inadmissible. Note that for admissibility purposes, what matters is how the offense translates into Canadian law, regardless of the actual punishment given where the offense occurred.
International Consequences – Implications for Travel Applications
Currently, in order to obtain a Temporary Resident Permit to enter Canada, FNs must present a significant reason for traveling – for example, an American with a DUI conviction may be permitted to enter Canada for a wedding. However, the updated status of a DUI conviction as serious criminality will present a larger roadblock for entry, likely requiring a much more significant reason for travel.
Furthermore, FNs or TRs with a single DUI conviction will no longer be eligible to be deemed rehabilitated after 10 years. These individuals may still apply for Criminal Rehabilitation 5 years after completing all sentencing, however they will face greater scrutiny of their application due to the categorized serious criminality status of their offense.
For individuals whose sentencing finished over 10 years ago and who are currently deemed rehabilitated, it is unclear whether they will lose their status and if their admissibility will be affected.
Domestic Consequences – Implications for Temporary and Permanent Residents in Canada
Temporary and permanent residents in Canada who have a previous conviction of a dangerous driving offense will be liable to loss of immigration status and deportation. Permanent residents’ appeal rights will also be restricted if deemed inadmissible to Canada as a result of such a conviction. Furthermore, even if a permanent resident is not deported, when traveling in and out of Canada they must disclose their conviction at port-of-entry, and immigration officials may enforce restrictions on mobility.
Concerns and Opposition to Bill C-46
The Senate of Canada, the Canadian Bar Association and the Criminal Lawyers’ Association have raised concerns over the new random roadside testing – they fear that it contradicts part of the Canadian Charter of Rights and Freedoms and may target minority groups. Moreover, in a recent report on Bill C-46, the Canadian Bar Association noted that the new legislation may cause unwanted delays in the legal system, absorbing significant system resources without substantial results.
Moreover, Canadian legislators appear to be focusing primarily on the domestic impacts of Bill C-46 and overlooking the foreign repercussions on travel and immigration. The Senate of Canada opposed classifying driving under impairment as “serious criminality” in order to prevent many FNs and TRs from being inadmissible to Canada. The Senate proposed amendments to Bill C-46 based on this concern, though they were rejected. As such, the government has neither provided solutions nor a timeframe for addressing this issue.
Prior to Conviction: What Can You Do?
Pleading a Lesser Offence
To increase our clients’ chances of admissibility to Canada, we recommend pleading down the offense to one that does not fall under the “serious criminality” classification. Typically, this implies pleading to a driving offense which does not involve impairment, recklessness or bodily injury. To avoid inadmissibility altogether, pleading down to an offense which does not dictate any form of criminality is the best case – for example, a traffic violation or disorderly conduct. Alternatively, we recommend pleading down a potential serious criminality charge of impaired or dangerous driving to a criminality offense, for example, criminal mischief. When Bill C-46 comes into force in December, this strategy will become particularly important for individuals facing travel restrictions for offenses that have increased in severity classification, such as refusing a breathalyzer test.
Legal Opinion Letter
At FWCanada, we offer a Legal Opinion Letter service that can help you enter Canada, particularly in cases where admissibility issues are complicated or contentious. By analyzing all documentation related to your immigration status and criminal history, we can provide a letter of our legal opinion on your admissibility which may be delivered to a judge or defense attorney in an effort to plead down charges or support an Alternative Dispute Resolution program. Our past clients have been very successful with this approach, often reducing the severity of their offense, since many attorneys and judges are unaware of the immigration consequences for offenses categorized as serious criminality.
Furthermore, if a judge or defense attorney removes your inadmissibility as a result, we can provide another Legal Opinion Letter to present to an immigration official at a port-of-entry. This second letter is valuable in explaining the change in admissibility status and preventing confusion at the border which could delay entry to Canada.
Post-Conviction: What Can You Do?
If you have already been convicted of a DUI or dangerous driving and rendered inadmissible to Canada, it can be addressed via these methods:
Individuals may apply for a Temporary Resident Permit which grants temporary entry to Canada. The permit is granted at the discretion of Canadian Immigration, with consideration as to whether the individual’s admission is worthwhile to Canada. Applications can be completed at the Canadian visa office or at the port-of-entry; however, it is best to prepare a well-documented application and apply as early as possible prior to the required date of entry.
Through the process of Criminal Rehabilitation, the individual’s record can be permanently cleared according to the Canadian government, removing the issue of inadmissibility. Individuals can be eligible to apply for Criminal Rehabilitation 5 years after completing all sentencing for their conviction, this included conditions such as fines and probation.
In the United States, expungement is a process whereby criminal records are sealed (expunged) or dismissed, removing the offense from an individual’s record. Only certain states offer an expungement option for DUIs and driving-related criminal offenses, and expungement laws differ state-to-state; therefore, individuals should first contact a local attorney, who will discuss the eligibility conditions in their state for an expungement following a DUI. While not always equivalent to a record suspension in Canada, obtaining an expungement and traveling with expungement documents can increase chances of entry to Canada, along with applying for Criminal Rehabilitation or a Temporary Resident Permit.
About the author:
Marisa Feil, the managing partner of the Canadian law firm of FWCanada, has extensive experience handling criminal inadmissibility. Learn more at http://www.duicanadaentry.com/ or call her at: 1.855.316. 3555.