DUI Immigration Consequences in Canada: Impaired Driving and Your Status

Why the 10-year maximum matters

The Criminal Code sets a 10-year ceiling when the Crown proceeds by indictment on the offences in ss. 320.14(1) (operating while impaired or over a prescribed limit) and 320.15(1) (failing to comply with a demand); the penalty provision is s. 320.19(1)(a). A summary version also exists with a lower maximum, yet s. 36(3)(a) of the Immigration and Refugee Protection Act classes any offence that can be prosecuted either way as an indictable one for immigration purposes.

For a first offence the minimum punishment in s. 320.19(1)(a)(i) is a fine ($1,000, with higher minimum fines in some cases under s. 320.19(3) and (4); amounts as of the date of this article, so confirm the current figures), so the sentence actually imposed may be well below the maximum. Section 36(1)(a) of the Act looks at the maximum available, so the likely sentence does not decide whether the offence reaches serious criminality.

Three consequences follow from how the Act is written:

• A conviction in Canada can make a permanent resident or foreign national inadmissible for serious criminality (s. 36(1)(a)), which can lead to removal proceedings.
• For a person with a conviction outside Canada, one of the deemed-rehabilitation paragraphs in the regulations (IRPR s. 18(2)(a)) requires, among other conditions, that the offence be punishable in Canada by less than 10 years, so an offence with a 10-year maximum falls outside that paragraph.
• A permanent resident can become the subject of a s. 44 report, even where the matter began as a driving charge.

The date of the offence also matters. The accident benefits regulation refers to an older Criminal Code section, s. 254, "as it read before December 18, 2018," which suggests the Code's driving provisions were reworked around that date. A lawyer can confirm which version governs an earlier offence.

What it can mean, by status

The six-month line

At the Division, s. 68(1) lets it stay a removal order if humanitarian and compassionate considerations warrant special relief. Once s. 64 applies, that avenue is closed.

A five-month term and a six-month term may look much the same in a criminal courtroom. In immigration terms they sit on opposite sides of a statutory line. The sentence is imposed by the sentencing judge, which is why people often ask when immigration advice fits relative to sentencing; a lawyer can advise on timing.

If someone was also hurt in the collision

When charges follow a crash, two legal problems may run side by side: the immigration exposure from the charge, and any claim for injuries.

Under s. 31 of O. Reg. 34/10 (the SABS), in listed situations the insurer need not pay the income replacement benefit, the non-earner benefit or certain others. One is a person who was engaged in an act for which they are convicted of a criminal offence, and the definition of "criminal offence" there includes impaired operation. Where charges are outstanding, s. 31(3) has the insurer hold those amounts in trust, and s. 31(4) says what happens to them on final disposition of the charges (returned to the insurer on a finding of guilt, otherwise paid to the person entitled).

In a claim against another person, the Negligence Act (s. 1) has the court determine the degree of fault of each person. A lawyer can advise how a criminal outcome and a civil claim interact. See our guides on accident benefits and how compensation is calculated.

Points people commonly raise early

1. Telling the criminal lawyer about immigration status. Counsel can only weigh immigration consequences if the client's status is known.
2. The outcome of the charge. For an offence committed in Canada, s. 36(1)(a) turns on a conviction, not a charge. A discharge under Criminal Code s. 730(1) is not available for an offence with a minimum punishment, and s. 320.19 prescribes minimum punishments for these offences. Whether other dispositions are realistic depends on the evidence.
3. The length of the sentence. Six months is the statutory line in s. 64(2).
4. Statements to police and insurers. These can affect more than one proceeding, so many people ask counsel about them first.

After a conviction

Options depend on status and sentence:

• Permanent resident with an appeal right. The Division can consider humanitarian and compassionate factors under s. 68(1).
• Permanent resident without an appeal right. Judicial review in the Federal Court under s. 72(1) is the route the Act describes, and the application must be filed within 15 days after notification for a matter arising in Canada (60 days for a matter arising outside Canada; s. 72(2)(b)); a judge may extend time for special reasons (s. 72(2)(c)). Judicial review also requires that any appeal right be exhausted first (s. 72(2)(a)).
• Foreign national. A temporary resident permit under s. 24 may be explored, and s. 36(3)(b) refers to record suspensions; the deemed-rehabilitation and rehabilitation routes in s. 36(3)(c) relate to matters outside Canada. See our guide on criminal inadmissibility. Eligibility and timing depend on the facts.
• Anyone facing removal. Under s. 50(c), a removal order is stayed for the duration of a stay imposed by the Division or another court of competent jurisdiction.

Each carries its own time limit, and the deadline that applies turns on the facts, so speak to a lawyer right away to pin it down.

When a lawyer's input matters

Typical triggers: a charge laid against a non-citizen, an upcoming plea or sentencing, a notice of a s. 44 report, a removal order, or a refusal of a permit renewal. Documents often requested: the charge sheet or information, disclosure, release conditions, proof of status, passport, and any immigration correspondence.