Canada’s New Impaired Driving Law
On June 21, 2018, the Impaired Driving Act, a piece of legislation that reforms the legal framework governing impaired driving in Canada, received royal assent.
The impetus for the act was the oncoming legalization of cannabis in Canada, and the need to develop new sections of the Criminal Code to limit the rise in the amount of drug-impaired driving offences that legalization may bring. However, the federal government also used the opportunity to carry out considerable reforms of Canada’s laws governing alcohol-impaired driving. These reforms aim to increase conviction rates for these offences, and thereby further deter members of the public from driving while impaired. The changes to alcohol-impaired driving rules will come into force on December 18, 2018.
Constitutional and Legal Hurdle
Though its ultimate objective is laudable, many aspects of the Act are controversial. It creates a menu of new offences that punish drivers according to the level of THC found in their blood, despite the absence of a scientific consensus establishing the link between THC levels and impairment. The Act implements mandatory roadside screening for alcohol impairment, meaning a police officer no longer needs to have reasonable grounds to ask a driver to provide a breath sample. This aspect of the Act is on questionable constitutional footing, and will inevitably be the subject of a strong challenge in our courts.
Presumption of Innocence?
The Act also eliminates some defences that have traditionally been available to an accused, by placing a burden on an accused person to rebut the presumption that the BAC level obtained by police accurately reflects the level of impairment of the accused when they were driving. Like the others, this too will likely be the subject of a Charter challenge.
Impact on Canadian Permanent Residents
One aspect of the Act, which may not receive the same level of public attention as the changes mentioned above, but has members of the immigration law community concerned, is the increased maximum penalties for impaired driving. The Act raises the maximum penalty for alcohol-impaired driving from 5-years to 10-years imprisonment. The Act establishes the maximum penalty for drug-impaired driving (causing no bodily harm or death) at 5-years imprisonment.
With the Supreme Court of Canada taking a dim view of the constitutionality of mandatory minimum sentences in many contexts, maximum penalty increases have become the preferred sentencing reform of the Trudeau government. They have the benefit of allowing the government to produce the image that they are serious about cracking down on crimes like impaired driving. They are also met with less outcry from the legal community, since judicial discretion is unaffected, and judges can opt to ignore the maximum penalty when arriving at a proportionate sentence.
However, maximum penalty increases often have ramifications that go under recognized initially because they are a consequence of the way the Criminal Code interacts with other legislation. The increased maximum penalty for alcohol-impaired driving brought by the Impaired Driving Act, when combined with the definition of serious criminality established by the Immigration and Refugee Protection Act (IRPA), places non-citizens (i.e. Canadian Permanent Residents and Temporary Visa holders) living in Canada in a very difficult position.
Section 36(1)(a) of the IRPA stipulates that a permanent resident or foreign national who is convicted of a crime in Canada that is punishable by a maximum term of imprisonment of at least 10 years is no longer admissible in Canada. The person is found to have committed an act of serious criminality, and they lose their immigration status in Canada.
Section 36(3)(a) establishes that for a hybrid offence (an offence where the Crown may elect to proceed either by indictment, or summarily), the offence will be treated as indictable offence for the purposes of the IRPA, even if the Crown has elected to proceed summarily. In other words, a non-citizen could be charged with alcohol-impaired driving, plead guilty, and receive a conditional discharge, but in doing so, render themselves inadmissible in Canada.
The combined effect of these two provisions, and the Impaired Driving Act, is that non-citizens who are first time offenders will face the prospect of deportation if they are convicted. The options of non-citizens when it comes to plea bargaining are non-existent, as any admission of guilt would lead them to lose admissibility in Canada. The only opportunity for relief is if the Crown elects to withdraw the charges (which is unlikely), or if the matter proceeds to trial and a verdict of not guilty is handed down.
The increased maximum penalty for alcohol-impaired driving also has significant ramifications for foreign nationals seeking to immigrate to Canada. Since a first-time offender who has been found guilty of alcohol-impaired driving is now treated as a serious criminal under s. 36(1)(b) of the IRPA, any foreign national who has a conviction for impaired driving (or its equivalent) on their record are not admissible in Canada. Without securing a pardon, they will never be able to obtain status. Canada has closed the door on immigrants with any history of impaired driving.
The Impaired Driving Act heightens the insecurity of an already vulnerable group of people living in Canada. When charged with a crime, a non-citizen is forced to navigate a judicial system that is foreign to them, and that is often inaccessible because of language and financial barriers. When it comes to alcohol-impaired driving, they also face the possibility of being punished far more severely than a Canadian citizen who committed the same crime. For a non-citizen, the process is more difficult and the stakes are much higher.
Not Equal Treatment of New Immigrants
The criminal justice reforms undertaken by the Trudeau government stand at odds with the image of Canada as a welcoming haven for migrating people that the same government has regularly espoused. The message being sent is that Canada is a multicultural oasis where migrants can excel, except if they commit one of the most common criminal offences. Then, they will not receive equal treatment under criminal law.
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