By Sukhram Ramkissoon

Landed immigrants who are convicted for alcohol and drug impaired driving offences are subject to deportation from Canada. The law has increased the maximum sentences for these types of offences to ten years instead of the maximum of five years.

It is very important for noncitizens to avoid driving while intoxicated with either alcohol or drugs.  This may lead to the person’s removal from Canada as the Immigration and Refugee Protection Act describes these types of offences as serious criminality.   This also applies to persons who are in Canada and are seeking refugee protection; if convicted they will be found ineligible to make a claim for convention refugee due to serious criminality.

If a noncitizen is caught for DUI, it is important for him/her to contact an experienced criminal lawyer who is also familiar with Canadian immigration laws, so the lawyer may understand that a conviction may lead to removal.  If the lawyer is not familiar with immigration laws, then seek additional professional legal advice.

As a matter of procedure, every time a landed immigrant is charged and convicted under any Act of Parliament, the Canada Border Services Agency (CBSA) automatically comes into play and commences proceedings to have the person removed from Canada, since the person is now inadmissible to Canada.

Let me walk you through the steps the CBSA usually take to have a noncitizen removed from Canada upon conviction for impaired driving, also known as “Operation while Impaired.”

For example, let us say Mr. X is a 30-year-old permanent resident from the Caribbean and was convicted for an offence such as above. Mr. X has been living in Canada since 2016 and was sponsored to Canada by his mother and is otherwise a productive member of society.

He pleads guilty to two separate charges under the criminal code, convicted and sentenced to 30 days concurrent, and ordered to serve his time in his home with curfew conditions.

As a noncitizen and because of these convictions, CBSA will commence removal proceedings against Mr. X.  They will first send a letter, informing him of the seriousness of the offence and a decision as to whether he will be allowed to remain or be removed from Canada would be made shortly.

Accompanying the letter, will be application forms for the noncitizen to complete, and, in the case of Mr. X, he will be requested to send any documents, information, or submissions as to why a removal order should not be made against him.  

There is a 30-day time limit to submit the forms, documents and submissions; if the noncitizen requires additional time he may ask for an extension of same.

In making a plea that the noncitizen be allowed to remain in Canada it is very important to address the full circumstances under which he came to Canada.  His background, education, work experience, hardships he would face if removed from Canada, family ties, etc. If the person has a spouse or children, their support should also be included in the plea to remain in Canada.

If the officer uses his/her discretion and allows the noncitzen to remain in Canada, the officer will send a warning letter, stating that if he/she reoffends they will re-visit the previous conviction.   

If a warning letter is not issued, the matter will be referred to an Admissibility Hearing before a Member of the Immigration Division, to make a determination if the person, like Mr. X., is inadmissible due to his convictions. If it is found the person is inadmissible, then a deportation order will be issued. This order may be appealed to the Immigration Appeal Division, according to the specific sentence received by the noncitizen, where this division has a very broad jurisdiction to consider humanitarian and compassionate grounds.

Therefore, noncitizens in Canada must be very cautious and must not drink and drive.  If convicted on such an offence the prospect of remaining in Canada is gloomy because the Government of Canada takes its laws very seriously.

Have a very safe, bright and prosperous new year!

SUKHRAM   RAMKISSOON is a member of the College of Immigration and Citizenship Consultants (CICC) and specialise in Immigration Matters at No. 3089 Bathurst Street, Suite 219A Toronto, Ontario Phone 416 789 5756.