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Inadmissibility to Canada based on Impaired Driving (DWI/DUI) Convictions

Written by Henry J. Chang
March 12, 2009
Introduction

As explained in our article on Canadian Grounds of Inadmissibility, Section 36(2) of the Immigration and Refugee Protection Act ("IRPA") renders a foreign national inadmissible to Canada on the grounds of criminality for:

  1. Having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;
  2. Having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;

Many people do not realize that impaired driving convictions (also sometimes referred to as driving while intoxicated (DWI), driving while impaired (DWI), or driving under the influence (DUI)) can render a foreign national inadmissible to Canada. A detailed explanation of why impaired driving results in inadmissibility to Canada appears below.

Application of Canadian Law

Where a foreign national is convicted of impaired driving while in Canada, the punishment described in the Canadian Criminal Code ("CCC"), R.S.C. 1985, c. C-46 is considered when making a determination of inadmissibility under IRPA 36(2). However, the CCC is also considered in cases involving foreign convictions.

In order for a foreign conviction to result in inadmissibility, it must first be found to be the equivalent of an offence in Canada. Once the Canadian equivalent of the foreign offence has been identified, the Canadian equivalent must fall within the parameters of IRPA 36(2) to result in inadmissibility.

Impaired Driving in Canada

The Offence

According to CCC 253(1), every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

  1. While the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
  2. Having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

The Punishment

According to CCC 255(1), every one who commits an offence under CCC 253 is guilty of an indictable offence or an offence punishable on summary conviction and is liable,

  1. Whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,
    1. For a first offence, to a fine of not less than $1,000,
    2. For a second offence, to imprisonment for not less than 30 days, and
    3. For each subsequent offence, to imprisonment for not less than 120 days;

  2. Where the offence is prosecuted by indictment (roughly the equivalent of a felony in the United States), to imprisonment for a term not exceeding five years; and
  3. If the offence is punishable on summary conviction (roughly the equivalent of a misdemeanor in the United States), to imprisonment for a term of not more than 18 months.

Application of CCC 253(1) to Inadmissibility Issues

Clearly, CCC 253(1) is a hybrid offence. In other words, the Crown Attorney (the Canadian equivalent of a U.S. District Attorney) may elect to proceed either by indictment or summarily. If the Crown elects to proceed by indictment, the maximum term of imprisonment is five years. However, if the Crown elects to proceed summarily, the maximum term of imprisonment is only 18 months.

Based on the above, a lay person might conclude that only impaired driving convictions prosecuted by indictment will result in inadmissibility under IRPR 36(2). Unfortunately, IRPR 36(3) states that an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily. So even a foreign impaired driving conviction that would equivalent to a summary conviction offence under CCC 253(1) will be deemed to have a maximum term of imprisonment of five years, for the purposes of IRPR 36(2).

Relief from Inadmissibility

Foreign nationals convicted of a criminal offense in Canada must seek a Canadian pardon before they will be entitled to enter Canada.

Foreign nationals who are inadmissible to Canada because of a foreign conviction may apply for a rehabilitation (i.e. a permanent waiver) after five years. Foreign nationals convicted of a single minor offence outside of Canada (such as one foreign impaired driving conviction) may also be eligible for deemed rehabilitation after a period of ten years has elapsed.

Finally, where an inadmissible foreign national has a compelling reason to enter Canada on a temporary basis, it is possible to seek a temporary resident permit. If granted, this will temporarily waive the ground of inadmissibility and allow the foreign national to enter Canada as a temporary resident (nonimmigrant).

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