Should a DUI conviction keep newcomers out of Canada?

It seems the time has come for Canada to review its ban on foreigners convicted of impaired driving.

It seems the time has come for Canada to review its ban on foreigners convicted of impaired driving.



Citizenship and Immigration Canada’s website describes our rule rather succinctly: “If you have been convicted of driving while impaired by alcohol or drugs, you will probably be found criminally inadmissible to Canada.”



This rule applies to foreigners coming to visit, work, study, or live in Canada. In other words, if you have been convicted of such an offence, chances are you will not be allowed to step foot in Canada.



Virtually all countries deny entry to foreigners with criminal records. However, most countries don’t consider drunk driving a crime. So admission to those countries is not usually a problem for those previously found guilty of such an offence.



However, in Canada, drinking and driving is a full-blown crime found in Canada’s Criminal Code and people convicted of such conduct are viewed as criminals. It makes no difference how the offence is viewed in the foreign country. It doesn’t matter if the violation is considered a felony, misdemeanour, traffic violation or characterized otherwise. It doesn’t even matter if the offence doesn’t appear on the individual’s police report or on their criminal record. It also doesn’t matter if this was a first offence or an offence which did not involve any injury or damage to property.



If the elements of the foreign offence, which were proven in the foreign court, can support a conviction of impaired driving in Canada, then the person is deemed to be criminally inadmissible to Canada.



Overcoming criminal inadmissibility to Canada can be done in a few ways.



In the case of minor crimes, a person can be deemed to be rehabilitated without having to make any sort of application if they have not re-offended for at least 10 years since the completion of the sentence for the conviction in question. If the person has been convicted of a serious crime, they may apply to the minister of immigration for a declaration that they have been rehabilitatedor five years after the completion of the sentence for the offence in question. If five years have not passed, they will have to apply for a Temporary Resident Permit.



A “TRP” may be issued if an officer determines that:

 

  • the need to enter or remain in Canada is compelling and sufficient to overcome the risk;

  • the risk to Canadians or Canadian society is minimal

  • the need for the individual’s presence in Canada outweighs the risk




While the policy reasons for a ban on drunk drivers are obvious, Canada’s enforcement of this policy has recently come under attack. Documents obtained pursuant to our access-to-information laws reveal that Canada’s tourism industry, especially the sector involving fishing and hunting, is suffering because of the strict application of this law. It was furthermore suggested that border officers were applying the law “arbitrarily” and with a “lack of courtesy.”



While the loss of revenue from sport tourism is not an irrelevant consideration, it is dwarfed by the impact on our economy by the application of this policy on foreign businessmen and women, and in particular American executives.



When Canada denies entry, or is seen to be ready to deny entry, to such individuals, Canadians stand to lose the benefit of the economic stimulus their entry might have brought our economy. In my office, the cases with the greatest potential impact on Canada’s economy are not those involving investors and entrepreneurs, but those involving senior executives headed to the Canadian branch of a multi-national corporation.



It is always easier for a democratically elected government to avoid controversy and simply banish all those with DUI convictions. However, such a blanket approach will have dramatic and unnecessary consequences for Canadian businesses which stand to benefit greatly by a more measured approach.



No Canadian wants dangerous foreigners entering this country. On the other hand, no Canadian wants to deprive themselves of the economic benefit of those who do not pose a risk to us.



The question to be addressed is how do we achieve this delicate balance.

Guidy Mamann, J.D. practices law in Toronto at Mamann Sandaluk LLP and is certified by the Law Society of Upper Canada as an immigration specialist. For more information, visit www.migrationlaw.com or email metro@migrationlaw.com

 
 
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