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Immigration

DUI changes unfairly target immigrants

A proposal to increase the maximum penalty for impaired driving could make permanent residents inadmissible to Canada, Toronto immigration lawyer Robin Seligman tells AdvocateDaily.com.

Under the federal government’s Bill C-46 amendments to the Criminal Code, the maximum penalty for impaired driving offences, which covers the use of cannabis, alcohol and prescription medication, will rise from five to 10 years.

Seligman, principal of immigration law boutique Seligman Law, says the change is particularly significant to permanent residents in Canada because it pushes the class of impaired driving offences over the threshold for convictions that are considered “serious criminality” under the Immigration and Refugee Protection Act (IRPA), significantly increasing the chance they will be found inadmissible to Canada.

“It’s going to be devastating for immigrants with equivalent foreign impaired driving convictions because they’re unfairly targeted,” she says. “There’s no right of appeal if a permanent resident is abroad when they were convicted, and if they are trying to sponsor a spouse with one impaired conviction, they’re going to be found inadmissible and they cannot be sponsored.”

Seligman explains that permanent residents with an impaired driving conviction and who do not serve six months or more in jail are currently not inadmissible to Canada, but she says the changes would make them inadmissible and will put their status in Canada at risk. Anyone sentenced to six months or more in jail for the offence would also lose the right to appeal their circumstances to the Immigration Appeal Division of the Immigration and Refugee Board of Canada on humanitarian and compassionate grounds.

As well as permanent residents, visitors to Canada, work permit holders, economic migrants and spousal sponsorship applicants would also be inadmissible and would be negatively affected by the change, says Seligman. They would need special permission to enter Canada, and would have to apply for a temporary resident permit at a visa office abroad rather than a port of entry.

"There will be long waiting times, and in many cases, refusals to allow the person to visit Canada," she warns. "This includes U.S. citizens."

In addition, Seligman says the amendments would also likely result in a larger workload for an already-stretched Canada Border Services Agency, as well as a spike in refused admissions for Americans at the border.

“It is a really problematic change,” she says, but adds that there is a simple fix. “The IRPA could be amended to make clear that a conviction under those sections of the Criminal Code do not constitute serious criminality.”

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