Bill C-46 distorts ‘serious criminality’ provisions for immigrants

A new law that increases the maximum penalty for impaired driving will have a “disproportionate” impact on immigrant offenders, Toronto immigration lawyer Robin Seligman tells the Toronto Star.

Bill C-46, the Impaired Driving Act, which is currently back before the House of Commons after amendments by the Senate, will hike the maximum jail term for someone convicted of impaired driving from five years to 10 years, crossing the threshold at which offences are considered “serious criminality” under the Immigration and Refugee Protection Act (IRPA).

But Seligman, principal of immigration law boutique Seligman Law, tells the Star that the changes will have the inappropriate effect of bracketing together immigrants with criminal records for impaired driving and those with much more serious convictions.

“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.

As the law currently stands, impaired driving offences are considered “ordinary criminality” under the IRPA, and will have no effect on an offender’s permanent resident status if they receive a sentence shorter than six months.

But if the maximum penalty is raised, immigrant first-time offenders could lose their status and be deported regardless of their individual sentence, which may only involve a fine and no jail time.

Seligman tells the Star that impaired driving is one of the most common criminal offences in the country and immigrants are found guilty at roughly the same rate as the general population. The newspaper reports there were more than 70,000 impaired driving incidents reported in the country during 2015.

Considering there are more than 300,000 newcomers arriving in Canada annually, as well as even more visitors, Seligman tells the paper the impact of the changes “could be huge.”

She tells AdvocateDaily.com that she backs the Canadian Bar Association’s submission to the Senate on the issue, which recommends making the maximum jail penalty “10 years less a day,” in order for immigrants to escape the automatic consequences of a “serious criminality” conviction, though notes that the Commons recently rejected a similar amendment when considering another bill, C-45.

However, Seligman says she strongly supports a recommended amendment to C-46 by senators Ratna Omidvar and Mobina Jaffer, which would specify that a conviction for impaired driving that does not cause bodily harm will not constitute serious criminality for the purposes of ss. 36(1) of IRPA. The amendment would also contain a two-year sunset clause.