By Muniza Kabir and Sakif Alam
You were in a collision and the police laid a charge. Impaired driving, dangerous driving, failing to remain at the scene. Your criminal lawyer is focused on the charge, and understandably so. But if you are not a Canadian citizen, the criminal case is only half the problem. The outcome of that case can determine whether you keep your permanent residence, whether your work permit is renewed, whether you can apply for citizenship, and whether you can return to Canada if you leave.
This post is about the connection between the two, and why the person defending the charge needs to know your immigration status before any decision is made.
Not every driving offence is the same
Ontario driving offences fall into two categories, and the distinction is everything for immigration purposes.
Provincial offences under the Highway Traffic Act, such as careless driving, speeding, and most licensing offences, are not criminal offences. A conviction does not make a person inadmissible to Canada. It may affect your licence, your insurance, and your civil liability for the accident, but it does not affect your status.
Criminal Code offences are different. Impaired driving, driving with a blood alcohol concentration over the limit, refusing to provide a sample, dangerous driving, and failing to stop after an accident are all federal criminal offences. A conviction for any of them creates criminal inadmissibility.
Why impaired driving is treated so seriously
Since December 2018, the maximum sentence for impaired driving offences has been ten years. That single change moved impaired driving from ordinary criminality into what immigration law calls serious criminality, and the consequences follow from that label.
For a permanent resident, a conviction for an offence punishable by ten years or more makes the person inadmissible and can lead to a removal order. The right to appeal that order to the Immigration Appeal Division is lost if the sentence imposed was six months or more. A permanent resident who has lived in Canada for decades can lose status over a single impaired driving conviction.
For a temporary resident, whether a worker, student, or visitor, a conviction makes the person inadmissible, which is a ground for refusing a renewal, cancelling a permit, and issuing a removal order.
For a citizenship applicant, a charge alone, before any conviction, is a prohibition. An application cannot be granted while a charge is outstanding, and a conviction bars an application for a period afterward. We cover this in our post on criminal charges and citizenship.
The charge itself matters, before conviction
Immigration officers can act on charges, not only convictions, in some circumstances. A pending charge will appear in the background checks for any application. A permanent resident travelling while charged may be questioned at the border. A temporary resident’s permit renewal may be held until the charge is resolved.
It is also worth knowing that a discharge, whether absolute or conditional, is not a conviction for immigration purposes and does not create inadmissibility. A peace bond is not a conviction. A plea to a Highway Traffic Act offence in place of a criminal charge, where that is available, removes the immigration consequence entirely. These outcomes are not always achievable, but a criminal lawyer who knows they matter can pursue them.
The civil claim runs alongside
The person injured in the collision may sue. That claim is separate from the criminal case and proceeds regardless of its outcome. But the two connect. A guilty plea or conviction is admissible in the civil case as evidence of fault. Statements made to police are disclosed. An acquittal does not prevent a finding of civil liability, because the civil standard of proof is lower.
For the driver, this means the criminal case is being defended with three audiences in mind: the criminal court, the immigration system, and the civil court. For the injured person, it means the outcome of the criminal case is a factor in the timing and strength of the injury claim. Our post on what to do in the first 48 hours after a car accident sets out the steps on that side.
If a conviction happens
Inadmissibility for criminality is not always permanent. Depending on the offence and the sentence, a person may become eligible to apply for criminal rehabilitation after a set number of years, or may be deemed rehabilitated after a longer period. A temporary resident permit can allow entry or continued stay in the meantime where there are sufficient reasons. A record suspension in Canada removes the inadmissibility for most offences. Our post on criminal rehabilitation and deemed rehabilitation and our inadmissibility page explain these routes. For visitors who are charged, our post on being charged while in Canada as a tourist covers the immediate steps.
None of these options is as good as avoiding the conviction, or securing a disposition that does not count as one. That is why the immigration analysis has to happen at the start of the criminal case, not the end.
Before you plead
If you are not a citizen and you have been charged in connection with a collision, tell your criminal lawyer your status, and get immigration advice before agreeing to any resolution. A plea that looks like a good deal in criminal court can be the worst possible outcome for your ability to stay in Canada.
Book a consultation with Kabir & Alam Lawyers. We can assess the immigration consequences of the charge and work with your criminal counsel on a resolution that protects your status.