New impaired offences, sentences could see permanent residents deported

New marijuana-related criminal offences now in force unfairly target newcomers to Canada, Toronto immigration lawyer Robin Seligman tells AdvocateDaily.com.

The federal government recently posted a notice to temporary and permanent residents warning that convictions under the new laws could result in their removal from Canada.

For example, the Cannabis Act provides for a maximum penalty of 14 years in prison for illegal production or distribution of cannabis or for giving or selling the drug to someone under 18.

Meanwhile, impaired drug offences due to take effect on Dec. 18 increase the maximum penalty from five years to 10 years.

"The impact of these new penalties on permanent and temporary residents could be significant," the Immigration Department says in its statement.

That’s an understatement, says Seligman, principal of immigration law boutique Seligman Law. She notes that the new maximum penalty for impaired driving is particularly significant to foreign nationals in Canada because it pushes these offences over the threshold for convictions that are considered “serious criminality” under the Immigration and Refugee Protection Act (IRPA), making them inadmissible to Canada.

“It’s terrible for immigrants because while a Canadian gets a fine and short suspension for a first offence, a permanent resident can get deported,” she explains. “Also workers become inadmissible and permanent residents or Canadian citizens can't sponsor a spouse if that person has an impaired conviction in Canada or abroad.

"These unintended consequences only arose as a result of oversights, and the minister was supposed to address this issue over the summer, but hasn't," adds Seligman, who suggests the government may be unwilling to reverse course for fear of appearing soft on crime.

With the current five-year maximum penalty, foreign nationals with impaired driving convictions can be denied entry to Canada, but single offences more than 10 years old are eligible for deemed rehabilitation under IRPA. That relief would no longer be available under the new laws.

The new law makes permanent residents presumptively inadmissible, putting their status in the country at risk. Anyone sentenced to six months or more in jail would also lose the right to challenge their removal order to the Immigration Appeal Division of the Immigration and Refugee Board.

Seligman says “serious criminality” for immigration purposes should be reserved for the very worst crimes, such as terrorism, national security threats and organized crime group membership, calling the decision to include first-time impaired driving offenders “overkill.”

She has previously advocated for a simple fix to the problem, whereby the IRPA could be amended to make clear that a conviction under those sections of the Criminal Code does not constitute serious criminality. Seligman also backed the Canadian Bar Association’s immigration law section, which suggested in a submission to the Senate that the maximum jail penalty could be changed to “10 years less a day,” in order to escape the immigration consequences of “serious criminality."