Know How a DUI Can Impact Your Residency Status or Quest for Canadian Citizenship
Short answer: Since December 18, 2018, most Canadian impaired-driving offences carry a hybrid maximum of 10 years' imprisonment. That maximum can put a conviction into "serious criminality" under the Immigration and Refugee Protection Act , with real risk for permanent residents, temporary status holders, and citizenship applicants. A charge is not the same as a conviction, and removal is a process — not an automatic deportation in every case.
Canada has some of the toughest impaired driving laws in the world. Bill C-46 amendments that took effect on December 18, 2018 raised the Criminal Code maximum for common impaired-operation offences to 10 years when prosecuted by indictment, which can characterize those DUI offences as "serious criminality" under section 36(1) of the Immigration and Refugee Protection Act (IRPA). Hybrid offences are deemed indictable for that analysis even if prosecuted summarily. This "serious criminality" designation has significant implications for the country's immigrants and anyone seeking or planning to seek Canadian citizenship. Permanent residents who are convicted of DUI in the country may face an inadmissibility finding and a removal process that can lead to loss of status, while those convicted of DUI outside the country may put permanent residency, a work permit, or a study permit at risk if immigration authorities find out about it. A DUI conviction — whether in Canada or another country — can also impede one's quest for citizenship, even if the offence took place years ago.
Criminality of DUI Now Impacts Permanent Residents
Prior to the December 18, 2018 amendments to the Criminal Code , DUI offences were typically characterized under Canadian immigration law as ordinary criminality rather than serious criminality. While this still allowed immigration authorities to deny entry or remove foreign nationals for DUI offences, it did not generally put permanent residents into the serious-criminality category for a single impaired-driving conviction without bodily harm or death. Because the amendments increased the maximum penalties for those hybrid DUI offences to 10 years in prison, a conviction for an offence committed on or after that date can fall within IRPA's serious-criminality definition based on the maximum available sentence, not the sentence actually imposed. While ordinary criminality under section 36(2) applies to foreign nationals, serious criminality under section 36(1) can apply to permanent residents as well. Classification can depend on the law in force when the offence was committed, so older convictions may be assessed differently than post–Bill C-46 matters. It should be noted that some other driving offences — such as hit and run, flight from a police officer, and reckless or dangerous driving — can also fall under serious criminality where the Canadian maximum meets the IRPA threshold, with similar repercussions for immigration status.
How a DUI May Affect Your Immigration Status
When a Canadian permanent resident is convicted of DUI in the country, the Canada Border Services Agency (CBSA) may notify the person that the offence appears to meet the definition of serious criminality. The person is typically provided an opportunity to respond to the notification and, based on the response and the circumstances of the DUI, CBSA will determine whether to prepare a section 44 report and proceed toward an admissibility hearing. If CBSA goes forward with the process, the Immigration Division of the Immigration and Refugee Board holds an admissibility hearing to determine whether the person is inadmissible on serious-criminality grounds. If the Division decides the person is inadmissible, a removal order can be issued. Those DUI offenders sentenced to less than six months of jail may still be eligible for appeal consideration by the Immigration Appeal Division, which can uphold the removal order, set it aside, or otherwise impose conditions; under IRPA section 64, that appeal route is generally barred where the Canadian sentence was at least six months.
While CBSA officers at the border can deny entry into the country to foreign nationals who have had a DUI, they have no general statutory authority to deny entry to permanent residents who have had one — whether in Canada or in a foreign country — solely because of that DUI. Border agents can only refuse entrance to permanent residents who have received a final determination that they have failed to comply with residency obligations or have reached the date of their removal order.
That said, border agents that uncover potential out-of-country DUIs by permanent residents during border crossings typically report the matter up the chain of command for further investigation. This in turn can lead to a notice from the CBSA that an inadmissibility or removal process has been initiated. Pending charges and finished convictions are not treated the same way under IRPA's conviction-based grounds, though unresolved charges can still create practical immigration and citizenship problems.
At this juncture it should be noted that lying to CBSA officers about any DUI arrests or convictions is not a good idea. Not only can lying to border officials jeopardize one's immigration status, when combined with a DUI it will seriously limit the chances of successfully appealing a potential removal order.
DUI's Impact on Canadian Citizenship
A DUI will not impact the status of those who have already been granted Canadian citizenship by naturalization. However, citizenship granted under false representation (such as lying about a DUI arrest/conviction received in another country) could be grounds for revocation.
A DUI can seriously hinder one's quest to become a Canadian citizen. In fact, anyone charged with, on trial for, or appealing a DUI as an indictable offence — or its foreign equivalent — is generally ineligible for Canadian citizenship while that situation continues, according to IRCC guidance under the Citizenship Act . A conviction for an indictable offence (or foreign equivalent) in the years before applying can also block or delay citizenship.
Furthermore, anyone seeking Canadian citizenship has to become a permanent resident first. A DUI that maps to serious criminality can make gaining or re-gaining permanent residency much harder. Deemed rehabilitation is generally unavailable where the Canadian-equivalent maximum term is 10 years or more, so the old automatic "wait ten years" clearance pathway does not usually apply to post–December 2018 impaired-driving equivalency. Individual rehabilitation, a temporary resident permit, or other discretionary relief may still be considered after prescribed waiting periods, but those options are not automatic.
How to Mitigate DUI Impacts on Immigration Status
A DUI can have serious implications for one's Canadian immigration status, but there are a few measures that can be taken to potentially mitigate the impacts. Any Canadian immigrant who is convicted of DUI in the country should consider seeking a record suspension from the Parole Board of Canada. Such suspensions are not considered until a specified time period has passed after the sentence is completed (typically five years for a summary-conviction offence / ten years for an indictable offence, depending on how the DUI was prosecuted), which means that it may not forestall a removal order. Where a Canadian record suspension has been ordered and remains in effect, IRPA generally provides that inadmissibility cannot be based on that conviction.
Those convicted of DUI in another country should consider applying for rehabilitation , which is applicable for anyone seeking residence in Canada who has been convicted of a crime (such as DUI) that may make them inadmissible for immigration. Again, this may not forestall a DUI-related removal order, but it may address ongoing inadmissibility after the mandatory waiting period. As with Canadian record suspensions, there are mandatory waiting periods before an application can be considered, and approval is discretionary.
Those facing a removal order or otherwise deemed inadmissible for entry into Canada can also apply for a temporary resident permit to enter or remain in Canada. Valid for a limited period (often up to three years, depending on the authorization issued), this permit allows those with a criminal record, DUI, or other cause of inadmissibility to enter and remain in Canada for a designated time frame. The permission is granted to those who can prove that their reason for being in Canada outweighs any risks they present by their in-country presence. Immigrants trying to resolve their DUI-related status can use this permit to provide them more in-country time while trying to resolve their complicated situation — but a permit is discretionary and not a substitute for resolving the underlying inadmissibility.
Complicated being a keyword, as we recommend that anyone facing immigration-related difficulties relating to DUI, consult with an experienced immigration lawyer.
Canadian Immigrants Facing DUI Should Consult with TorontoDUI
While we cannot address all immigration-related problems that might arise as a result of a DUI arrest, we can assist you with avoiding a conviction that might give rise to such difficulties.
With more than 15 years of successfully defending GTA defendants from all types of DUI charges , the DUI lawyers at TorontoDUI work to secure favourable outcomes for clients whose immigration status is also on the line. If you or someone you know with immigration-status concerns has been charged with a DUI, contact the highly skilled lawyers at TorontoDUI for a free consultation.
