Bill C-46, best known as the Impaired Driving Act, received much media attention when it became law last June, with the lion’s share focusing on the new powers given to the police to crack down on those impaired by alcohol or drugs while driving.
But Canada’s immigration lawyers are advising their defence bar colleagues to pay special heed to the impact the law will have on immigrants in Canada who run afoul of the impaired driving laws, either here or in other countries. The effects of Bill C-46 could see the court system clogged with permanent residents fighting deportation from Canada.
CONCERN ABOUT THE BILL
Concern over the bill was expressed initially by the Canadian Bar Association (CBA) in a wide-ranging paper last year. That paper centres on the problems created by amendments that increase the potential maximum impaired driving sentences to 10 years from the previous maximum of five years. At the same time, the new law raises the designation of the conviction to “serious criminality”, putting impaired driving on par with terrorism, murder and drug trafficking. That change applies to both permanent residents and foreign nationals, putting them at risk of being immediately deported.
Robin Seligman, a Toronto immigration lawyer, is concerned about the repercussions of C-46 on immigrants.
“It was clear that (Immigration, Refugees and Citizenship Canada ) dropped the ball,” she says in a recent interview. “It didn’t register that this (Bill C-46) would have severe impact on permanent residents and foreign nationals.”
THE EFFECT ON IMMIGRANTS
With more than 7.5 million immigrants living in Canada today — about one in five people — the potential number of permanent residents and foreign nationals that could be impacted is large. Of that population, the number of foreign students studying in Canada has now surpassed 500,000 each year, federal statistics show.
Seligman says bills coming to Parliament frequently have accompanying advice outlining the effect of pending legislation on existing law, including the Criminal Code. There was no such advice when it came to C-46.
Despite Seligman’s attempts to urge the Senate to address the impact on immigrants when the bill reached that house, Bill C-46 was passed and given Royal Assent in June 2018 with the “serious criminality” provisions intact.
THE RISK OF DEPORTATION
But the fundamental question remains, says Seligman, about the reasoning for allowing the bumping of penalties to 10 years, from the former five years maximum prison term, thus triggering the deportation provisions of the Immigration and Refugee Protection Act.
“Why not seven or eight years?” she asks. “It (the new impaired driving laws) is symbolic for Canadian citizens. It is symbolic for the government. It is not symbolic for permanent residents. It has real teeth. It is a real problem … and there is no fix.”
Leslie Morley, an immigration lawyer based in Kingston, notes that Ahmen Hussen, Minister of Immigration, Refugees and Citizenship, has stated that if an impaired conviction occurred before Dec. 18, 2018, the serious criminality provisions would not apply. After that date, it is another matter.
Now, permanent residents and foreign nationals convicted of impaired driving in Canada may be found “criminally inadmissible for serious criminality and be ordered deported from Canada,” Morley says in a paper he prepared on the Bill C-46 implications for non-citizens.
SOME HAVE NO RIGHT TO APPEAL
Permanent residents convicted inside Canada will have a right to appeal the deportation order to the Immigration Appeal Division of the Immigration and Refugee Board if the sentence imposed is less than six months in jail, Morley says. Foreign nationals, including visitors, students and workers will not have the right of appeal. For those, including permanent residents of Canada, convicted outside Canada of an offence equivalent to impaired driving or refusing to take a breathalyzer test there is no right to appeal a deportation order issued under these circumstances.
With no right to appeal, he says, the client and his counsel aren’t able to provide information and context that might mitigate the penalty of deportation. “These are issues that potentially affect your future in this country, including whether you are going to be separated from your children and your parents and maybe be sent to a place you don’t know well or that could be quite dangerous,” he says.
CRIMINAL LAWYERS WILL NEED IMMIGRATION COUNSEL
Once a permanent resident is deported from Canada, he or she may not return, absent special permission from the immigration authorities, which is difficult to get.
Morley says the new law means criminal defence lawyers defending clients on impaired driving charges must be certain about their client’s immigration status and, where appropriate, consult with immigration counsel about the impact of the new law on the client. “If I want to insulate myself from liability as a criminal lawyer, what I need to do is call an immigration lawyer and ask, ‘Is this a problem? Give me a letter saying it is or isn’t’.”
Morley says defence counsel also should be mindful of case law in the U.S. and similar cases in Canada that reaffirm a lawyer’s professional obligation — and potential liability — in ensuring they know their client’s risk of deportation if convicted of a serious crime. Morley says he and Seligman asked a recent Ontario meeting of immigration lawyers if they had dealt with the new tougher laws yet, and none said they had. But with more than 70,000 impaired driving incidents in 2016 in Canada alone— probably hundreds of them involving immigrants — it is only a matter of time before cases begin to emerge.
Vancouver lawyer Peter Edelmann, who frequently advises criminal counsel on immigration law, predicts several consequences of the new law both at the ports of entry and in the courts.
“You (counsel) are dealing with a whole bunch of different people who will be applying these standards of serious criminality at overseas processing centres, in Canada applications, and by Canada Border Services Agency at all ports of entry,” he says
With no amendments yet to the instruments of delegation of authority, decision-making will be pushed higher up the chain of command, Edelmann says, making the process of entering or returning to Canada more difficult.
He also predicts that the new law and the threat of deportation will create “motivation to litigate.” He compares it to murder cases, “which are a source of an enormous amount of jurisprudence, where every little issue gets litigated because the stakes are so high.”
Edelmann also notes that impaired driving laws can vary widely throughout the United States, where state rather than federal laws apply. There may be an opportunity, for instance, for clients to negotiate guilty pleas to lesser offences and sentences that do not fall into the serious criminality category with the attendant risk of deportation or inadmissibility.
“My advice to anyone for whom it is important to be able to enter or remain in Canada is to have Canadian immigration counsel involved as early as possible in the criminal process.”