Bill C-46 changes to impaired driving penalty leads to higher risk of deportation for non-citizen offenders

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First-time, non-citizen impaired driving offenders may receive a significant penalty as a result of Bill C-46. The new federal legislation could make deportation mandatory for those who receive a conviction on indictment.

The increase in maximum penalties is part of complementary Criminal Code changes in Bill C-46 aimed at preventing people from driving after consuming marijuana. The changes create three new offences for having specified levels of a drug in the blood within two hours of driving.

But it isn’t the new drug level offenses that are worrying activists and lawyers across the country.

Under Bill C-46, the maximum penalties for impaired driving have been increased in cases where there is no injury or death to two years less a day on summary conviction (up from 18 months) and to 10 years on indictment (up from 5 years). If the Crown chooses to proceed by indictment, there is a possibility that a dangerous offender application would be appropriate depending on the circumstances.

Bill C-46 received Royal Assent on 21 June 2018. The impaired driving sentencing changes will come into force 180 days after that date.

The Senate had offered an amendment that would have lowered the maximum sentence on indictment to under 10 years, but the House of Commons chose to reject that change.

In Canada, the increase in penalty to ten years means that non-citizens convicted of impaired driving on indictment would be inadmissible due to “Serious Criminality” under sec. 36 of the Immigration and Refugee Protection Act (“IRPA”).

Section 36(1)(a) of the IRPA reads that:

                36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for:

  • (a)having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed

Previously, a first-time charge for impaired driving would mean that a non-citizen offender would avoid deportation because the offense only carried a maximum sentence of five years and therefore was considered “Ordinary Criminality” under sec. 36(2) of the Immigration and Refugee Protection Act.

However, the new changes to a maximum term of 10 years on indictment significantly increase the possibility a non-citizen would be deported. With hundreds of thousands of newcomers and visitors currently in Canada and more coming each year, the possible impact of the legislation is huge.