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CANADA – DUI/DWI Will Require “Rehabilitation” Application to Overcome Inadmissibility

10 Jul

Effective December 2018, new amendments to the Criminal Code of Canada will increase the maximum punishment for Driving Under the Influence (DUI) or Driving While Impaired/Intoxicated (DWI) to a term of imprisonment for 10 years. This increase in potential maximum punishment escalates the crime of DUI/DWI to an offense of “series criminality.” Because of this change, DUI/DWI offenses are no longer eligible for automatic, “deemed rehabilitation” after 10 years, and affirmative applications for rehabilitation will be required to overcome inadmissibility to Canada. This change impacts even those who have previously entered Canada after an old DUI based on “deemed rehabilitation.”

Canada has traditionally treated all DUI or DWI offenses severely, with any DUI or DWI related offense on record in any jurisdiction around the world serving as a serious obstacle for travel to Canada. However, DUI offenses have customarily held a maximum penalty of 5 years of imprisonment under Canadian law, which classified DUI offenses as “ordinary criminality.” For immigration purposes, if an individual had been charged with a crime with a maximum punishment of less than 10 years and attempted to enter Canada 10 years after the offense, they could be “deemed rehabilitated.” This means that the issue of having a DUI offense on record would essentially be erased after a period of 10 years and the individual would be permitted to enter Canada without a special filing.

Impact of Change

Because the new amendments to the Criminal Code of Canada coming into effect December 2018 have increased the maximum punishment for DUI or DWIs to a term of imprisonment of 10 years, and DUI offenses may now result in imprisonment for 10 years, the crime will be reclassified from “ordinary criminality” to “serious criminality.” Crimes that are classified as a “serious criminality” are not eligible for  deemed rehabilitation regardless of when the offense was committed. This means that foreign nationals and Canadian permanent residents who have been convicted of impaired driving, but who have previously traveled to Canada under the “deemed rehabilitation” provision may now be deemed inadmissible into Canada and may face deportation.

Rehabilitation Process

Beginning in December 2018, individuals who have previously been admitted to Canada with a DUI offense on record may now find themselves inadmissible and unable to enter the country. These inadmissible travelers should be prepared to lodge a rehabilitation application or, in some cases, they may apply for a Temporary Residence Permit (TRP) which permits short-term entry. Additionally, government filing fees for the adjudication of a rehabilitation request for an impaired driving offence will increase from CAD $200 to CAD $1,000 when the law comes into effect this coming December.

Impact on Canadian Permanent Residents

These changes to the Criminal Code will also affect Canadian permanent residents. Permanent residents should be aware that a single offense of “ordinary criminality” may not lead to deportation, but a conviction for “serious criminality” can. Therefore, it is important that permanent residents are aware that this change in the interpretation of criminal law classifications may pose a serious issue for their ongoing immigration status in Canada.

Consult Immigration Counsel Regarding Any DUI/DWI

All individuals traveling to Canada with any DUI offense on record in Canada or outside of Canada, no matter how old, should consult immigration counsel before traveling in order to have the issued reviewed and a plan put in place to address the most appropriate application/travel strategy. Serious criminality is generally more difficult to overcome than ordinary criminality, so impacted individuals may be recommended to apply now for a TRP or rehabilitation before the effective date of these changes in December 2018.