Senate spares impaired immigrant drivers from ‘sledgehammer’ penalty

Will be interesting to see whether the Commons accepts this amendment and whether or not the opposition makes this a high profile issue:

The Senate has passed a critical amendment to the Impaired Driving Act that would spare permanent residents sentenced to less than six months from being deported.

Bill C-46 intends to raise the maximum penalty for impaired driving in Canada from five to 10 years. As originally proposed, it would have automatically classified all DUI offences as “serious criminality.” That designation, under immigration law, would have resulted in the loss of permanent residence status even for a first-time offender who caused no bodily harm.

The Senate decided that the “serious criminality” designation for impaired driving should not apply to permanent residents and foreign nationals sentenced to less than six months in jail.

Critics, including the Canadian Bar Association, had argued that the proposed legislation would have had a “disproportionate” impact on immigrant offenders who, unlike their Canadian peers, would be penalized by both the criminal and immigration systems. This would have affected foreign students, workers, visitors and permanent residents.

Under the current immigration law, a permanent resident found guilty of any crime resulting in a sentence of more than six months faces deportation. The bill, as originally proposed, would have made an immigrant offender deportable regardless of the length of sentence.

“If any of these permanent residents break the law in terms of drunk driving, then they should pay the price, like any other Canadian, because we cannot afford to jeopardize the lives of innocent people on the streets,” said Senator Ratna Omidvar, one of 47 senators who voted in majority for the amendment Tuesday evening.

“But I don’t believe that permanent residents should bear an added punishment — not just another punishment, not just another fine — but a sledgehammer of a punishment of inadmissibility and deportation. This is exactly what Bill C-46 will do if we allow it to leave this chamber without this amendment.”

Immigrants who commit a serious crime should be deported, said Senator Mobina Jaffer, who introduced the amendment. Bill C-46 would have created a system that would make all impaired driving offences not equal, she said.

“We are a country that gives people who make a mistake another chance, as long as it’s not a serious offence,” she added.

The amended bill will be sent back to Parliament for a final vote before it becomes law.

Source: Senate spares impaired immigrant drivers from ‘sledgehammer’ penalty

Tougher impaired driving penalty ‘a double whammy’ for immigrants

The complexity of balancing a legitimate policy objective and one of the possibly unforeseen impact on Permanent Residents:

A proposed law to raise the maximum penalty for impaired driving offences in Canada could have a “disproportionate” impact on first-time immigrant offenders who would see their permanent residence status revoked and be deported, critics say.

But advocating equal rights for impaired drivers is a delicate issue, one that some senators and immigrant lawyers are trying to tackle as the Red Chamber sits this week to seek amendments to Bill C-46, the Impaired Driving Act, before sending it back to the House of Commons for a vote.

Currently, someone convicted of impaired driving could receive a maximum penalty of not more than five years in jail, but the offence would still be considered “ordinary criminality” under immigration law. An immigrant’s permanent residence status is not affected unless a sentence of six months or more is imposed.

However, under the proposed legislation, the increased maximum penalty to 10 years would automatically classify impaired driving as “serious criminality.” As a result, even if a first offender, who is not a Canadian citizen, is convicted and is only ordered to pay a fine, they would still lose their immigration status and be banned from Canada. This would affect foreign students, workers, visitors and permanent residents.

“We take impaired driving very seriously and we don’t want impaired drivers behind the wheel,” said Senator Ratna Omidvar in an interview. She noted that if a Canadian citizen is convicted of impaired driving for the first time, they could be sentenced to as little as a fine and walk free afterwards.

“A permanent resident in the same situation would pay the fine and face deportation,” Omidvar added. “It is a double whammy not on all people but just on a class of people. That’s an unintended consequence. The impact on permanent residents would be huge and disproportionate to what a Canadian would get.

In its submission to the Senate, the Canadian Bar Association also urged “careful consideration” of the bill, warning that the changes could put “a significant strain” on the immigration system and border officials in handling increases in inadmissibility and deportations.

The bar association wants the Senate to make the maximum jail penalty for impaired driving offences “10 years less a day” so they would still be classified as “ordinary criminality” and not trigger the automatic loss of a person’s permanent residency. At the very least, it says, there should be an exception to the 10-year penalty threshold for such offences that do not involve serious bodily injury or death.

“We remain concerned that Bill C-46 will introduce uncertainty into the law and result in significantly increased litigation and delays,” said bar association. “Our recommendations are intended to continue to protect Canadians from impaired driving, without triggering the serious criminality consequences.”

It’s not known how many immigrants would be affected by the proposed legislation, but immigration lawyer Robin Seligman said impaired driving is among the most common criminal offences and immigrants are not any more or less likely to commit the crime.

Statistics Canada said police reported a total of 72,039 impaired driving incidents in 2015 and given almost 300,000 newcomers and hundreds of thousands of visitors are coming to the country every year, the impact of the increased maximum penalty could be huge, said Seligman.

“Under the immigration law, serious criminality refers to terrorism, (threats to) national security and membership to organized crime. Lumping first-time impaired driving offenders with them is disproportionate and unfair. It’s an overkill and oversight,” Seligman said.

While repeat offenders of impaired driving deserve to be deported, immigration lawyer Lorne Waldman said first-timers should be allowed an opportunity for rehabilitation, especially where there’s no one hurt in the incident.

“There are definitely a lot of concerns over this bill, but it is always difficult for MPs to advocate for those convicted of any criminal offence,” said Waldman, who fears Ottawa would rush to pass the bill without amendments to fulfil its promise to legalize marijuana this summer.