Canadian Criminal Inadmissibility and DUI/DWI Offences

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BACKGROUND Canada’s Criminal Code sets out criminal offences in Canada and dictates the potential punishments for those offences. Canadian immigration law then creates classes of inadmissible entrants to Canada based primarily on distinctions in prospective punishment levels as set out in the Criminal Code. Note that indeed, subject to limited exceptions (discussed below), it is the prospective punishment that an offence could yield, not the actual punishment received, which is generally considered for immigration purposes. As such, who is, and who is not, inadmissible to Canada, depends on the prospective punishment that an offence could yield pursuant to the Criminal Code (even if the crime was committed abroad). Further, various ‘waivers’ available for overriding inadmissibility will also depend on the prospective punishments set out. The primary dividing line of prospective criminal punishments that impact immigration matters is potential terms of imprisonment of 10 years. If the prospective punishment for a crime is less than 10 years, it is considered ‘ordinary’ criminality. If the prospective punishment is 10 years or more, it is considered ‘serious criminality, and, as noted, there are consequences to falling into one camp or the other. [There are other issues and distinctions, but this is the primary issue for the purposes of this article.] For example, someone who has been convicted outside Canada of not more than one offence, which offence in Canada would be punishable by a term of imprisonment of fewer than 10 years, would be inadmissible based on ordinary criminality only, and, after 10 years, would be ‘deemed rehabilitated’, and the problem would essentially be erased. This deeming provision is not available to those in the serious criminality category.

OTHER IMPLICATIONS A few additional notes about the change in the law: Notwithstanding the prospective punishments, if a person has been convicted in Canada, and actually served more than 6 months for the offence, he or she falls within the ‘serious’ criminality provisions, notwithstanding the length of potential sentence, which is otherwise the test. The above focuses on ‘Foreign Nationals’ – those who are not Canadian citizens or Permanent Residents. The changes, however, also impact Permanent Residents in that a single ‘ordinary’ criminal offence may not lead to deportation, but a conviction for a matter of ‘serious’ criminality could – therefore, a DUI for a Permanent Resident is now a much more serious issue. [Yet again, there is more complexity to this, but Permanent Residents are certainly at greater risk based on the change of law.] WHAT TO DO For any prospective traveller to Canada who has previously entered Canada without an issue (as well as for employers seeking to have Foreign Nationals visit or work in Canada), it is imperative to be aware of the reality that a prior DUI which may until now have been erased, will soon be ‘unerased’; that is, that person, previously admissible due to deemed rehabilitation, is now inadmissible. Certainly further, any person not previously having travelled to Canada also needs to be aware that a prior DUI has more serious consequences. Persons finding themselves in a position of possible inadmissibility should take action to determine whether they might need to apply for rehabilitation (rather than be deemed rehabilitated), or whether, in some cases, they may be able to, and wish to, seek, a Temporary Resident Permit (TRP), which is a short-term override or waiver of criminal inadmissibility. Please note that there are further complexities that can arise on criminal inadmissibility issues generally, including distinctions between Criminal Code classifications of indictable and summary convictions (which, despite attempts to so characterize them, do not equate to U.S. felonies and misdemeanours), considerations of commission vs. conviction of an offence, the implication of multiple crimes, and more. Proper counsel should be sought.

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