New wrinkle in Canadian law makes impaired driving a high crime
A change in Canadian law that begins Tuesday will impact how individuals from the U.S. can cross the border if they’ve been found guilty of driving while impaired.
Starting Tuesday, Canada will begin designating all crimes related to driving while impaired as serious criminal offenses.
The change in Canadian law was passed in June and amends the criminal code in what many believe to be a counter play to the country's legalization of marijuana.
For non-citizens, such as Western New Yorkers who cross the border for business or to visit family or friends, U.S. residents with impaired driving convictions on or after Dec. 18 must do more to regain admissibility. One way is to apply for a special permit, said Rosanna Berardi, managing partner of Berardi Immigration Law.
Traditionally there were two options available, she said.
According to immigration attorney Jamie Fiegel of Fiegel & Carr, individuals with impaired driving convictions before Dec. 18 but who are already deemed rehabilitated will need to prove such in writing with proper evidence. This can be shown to officials at ports of entry, said Fiegel, a licensed Canadian immigration consultant.
In the past, Canada’s Citizenship and Immigration department and the Border Services Agency flagged an individual’s name for 10 years following the date of a conviction. The person was not granted entry unless they had a temporary resident permit, completed the criminal rehabilitation application process or otherwise provided evidence of deemed rehabilitation, the attorneys said.
“(Canada is) no longer doing that,” Berardi said. “That 10-year window that allows you to become rehabilitated (under Canadian law) is out the window.”
The new law says that “anyone whose driving under the influence charge occurs on or after Dec. 18 can never be considered ‘deemed rehabilitated,’” Fiegel said.
“This means that no passage of time will clear that individual of their inadmissibility,” Fiegel added. “Previous law dictated that after 10 years of completion of the sentence the individual would be admissible again as long as their criminal history was limited to that one offense.”
Individuals must now file an application for rehabilitation with the Canadian government. They cannot do that, however, until five years have passed from the end of the completion of all sentencing requirements, Fiegel said.
The cost to file an application for rehabilitation will rise from $200 to $1,000, Berardi said.
It recently has taken approximately six months to find out if an application is approved, she said. On the plus side, she said the approval does not expire.
The Canadian government has posted the processing time as 12 months, Fiegel said.
In an emergency situation, individuals can apply for a temporary resident permit at the border, Berardi said.
Fiegel said she encourages an alternative approach to the criminal rehabilitation application process with clients. In a carefully constructed document, she will outline a legal argument on how the person rehabilitated his or herself since the conviction and why they should now be admissible in correlation to standing Canadian case law.
“The packet tends to be 40-to 60 pages long but it’s worth it,” she said.
While she said the document doesn’t guarantee entry, Canadian immigration officials review it at the border. It has been successful in the past, she said.
“There is a legal formula in the process and how this is all equated,” she said.
A memo released by the Canadian government clarified some confusion, the attorneys said. It seemed to indicate that the law would not be imposed retroactively, meaning that if a conviction came before the law change date, the person may still have the 10-year window to naturally rehabilitate in the eyes of Canadian law, Berardi said.
“There’s been some talk that (clarification) may be put in the regulations before they’re finalized in December,” she said. “Canada has always taken a pretty hard-line position on driving-while-intoxicated convictions.”
“They always have the opportunity to make a policy to over change it and that could be devastating,” Fiegel said.
Source:
https://www.bizjournals.com/buffalo/...d-driving.html
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