Debate Highlights: Amending the Impaired Driving Act to Address Unintended Consequences for Permanent Residents
On June 12, 2018 Senator Mobina Jaffer introduced an amendment to Bill C-46, the Impaired Driving Act, which would ensure that permanent residents do not face deportation if they are convicted of general impaired driving – without causing bodily harm or death – with sentences of six months or less. This amendment successfully passed in the Senate that evening with a vote of 47-26. Senator Omidvar spoke in support.
Below you will find the text of the entire debate surrounding this amendment along with audio clips. This includes speeches from Senators Mobina Jaffer and Ratna Omidvar, and questions and answers from Senators Dean, Harder, Housakos and Eggleton.
Amendment Speech – Hon. Mobina Jaffer:
Honourable senators, I rise today to speak on Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts. This bill reflects our government’s desire to strengthen our impaired-driving laws and to increase the deterrence, conviction and detection measures for those who drive impaired by drugs or alcohol.
Taking a strong stance against impaired driving is a goal I support wholeheartedly. In Canada, drugs are present in fatal crashes twice as often as alcohol, and Canadians need an effective safeguard against impaired driving.
I support the goal of this bill because it protects the lives of Canadians, both on and off the road. However, Parliament and Canadians have established a framework in criminal law that distinguishes between offences based on seriousness. These categories are indictable offences, which are considered more serious, and summary offences, which are considered less serious.
Bill C-46 erases the lines between these categories and subjects all summary offences to serious and unintended consequences. It deals with all offences as if there were one category. It lumps all offences together. That is why I am tabling the amendment before you.
The amendment states:
- A conviction for an offence committed under subsection 320.14(1) or 320.15(1) does not constitute serious criminality for the purposes of subsection 36(1) of the Immigration and Refugee Protection Act unless the person was sentenced to a term of imprisonment of more than six months in respect of that offence.
- Subsection (1.1) expires two years after the day on which it comes into force unless, before then, the Minister extends its application for up to two years.
- The Minister may, before the expiry of each extended period under subsection (5.1) extend the application of subsection (1.1) for up to two years.
Honourable senators, in our criminal justice system, we have established a framework that has been in operation for many decades. The framework differentiates between two main types of criminal offences: summary and indictable offences. As I have already mentioned, summary criminal offences are considered minor and are punishable by way of fines, and sometimes a prison sentence of less than six months.
Indictable offences are serious offences. They are punished more severely and can carry up to 25 years to life prison terms.
This criminal framework is the bedrock of our criminal justice system. We have relied heavily on this distinction for many decades, and we recognize that all new offences must fall within this framework so that Canadians can understand how the law will be applied and interpreted. For our courts, law enforcement and us Canadians, this criminal framework is an important part of our daily lives. When we see that a certain offence is summary or indictable, we understand what the punishment should be.
Unfortunately, Bill C-46 does not follow this criminal law framework.
Currently, a person convicted of impaired driving may face up to five years in prison. Bill C-46 increases punishments for driving under the influence to a maximum penalty of 10 years. This increase is significant and triggers unintended consequences under immigration law. Immigration law says very clearly that any crime punishable by 10 years is considered serious and triggers a provision called serious criminality, which leads to the person being deported. Serious criminality in the Immigration and Refugee Protection Act is reserved for those who commit heinous crimes like murder, sexual assault, crimes against humanity or acts of terrorism. It is reserved for indictable criminal offences because if a permanent resident is charged with an indictable offence, they will be deported.
Honourable senators, I agree that if a permanent resident commits a serious crime, he should be deported. In our country, we have made the decision under our immigration system that we welcome immigrants, but if they commit a serious crime, they should be deported. But that goes for indictable offences; it does not talk about summary offences. We are also a country that gives people who make a mistake another chance, as long as it’s not a serious offence. If it is a serious offence, we all agree that person should be deported. What I am speaking about, this act doesn’t deal with, which are summary offences.
However, because the government has raised the potential penalty for impaired driving to 10 years under Bill C-46, even summary offences committed by people will trigger serious criminality under the immigration act. This means that less serious offences that carry, for example, a simple fine or a short prison sentence will trigger the deportation of permanent residents.
Let me share with you an example which was shared with us at the Standing Senate Committee on Legal and Constitutional Affairs. Bill C-46 establishes various mandatory minimum sentences for impaired driving based on intoxication level. So a person who commits a first impaired-driving offence would be subject to a minor summary conviction and a fine of $1,000. Since we have raised the overall penalty to 10 years, even summary offences trigger deportation. This means, regardless of the sentence imposed, even if a discharge or fine was imposed, a citizen will face consequences and move on with their lives. A permanent resident will face the same consequences and will be deported.
I want to give you an example of a young man called Steven who came to Canada as a baby with his parents. However, when he arrived, his parents did not apply for citizenship for him. Many years later, he decided to apply for citizenship himself. Canada is practically the only home he has ever known and he wishes to proudly call himself a Canadian. Steven has been a pro-social and productive citizen. He finished school and college, he has a job and family, and he has never been in conflict with the law.
Unfortunately, even the best people can make mistakes. While he was waiting on his citizenship application, Steven was charged with impaired driving. He was not driving dangerously; there was no accident. It was an isolated incident. Due to the circumstances, the Crown elected to proceed with a summary conviction and the court imposed a fine of $1,000. Despite the fact that the Crown chose to proceed summarily and the court imposed the minimum possible punishment, Steven is now subject under Bill C-46 to serious criminality consequences, and he could face deportation to a country he doesn’t even know.
If Bill C-46 passes in the current state, we will be taking the position that Canada would deport Steven to a country he has never lived in, to a place he may have no family and to an area where he may not be familiar with the language and culture.
Honourable senators, I want to make it clear that if Steven, as a permanent resident, had committed a serious crime, then he should be deported. But this is a case of a summary offence, and that is why I’m saying that Steven should not be deported. This is an unintended consequence of Bill C-46.
How can we punish as a summary offence but proceed as if it were indictable under immigration law? This is unprecedented. If someone commits any indictable offence, they should be deported, but we do not deport someone for a summary offence. That is what Parliament has decided many times.
Simply put, summary means summary; indictable means indictable.
Bill C-46 creates a system where the punishment does not fit the crime. It creates a system that recognizes that all impaired driving offences are not equal. It classifies them according to blood alcohol level or impact on others. However, despite this division, all permanent residents are subject to the worst possible punishment under immigration law, regardless of their circumstances, whether they have committed a summary offence or an indictable offence.
I know, honourable senators, you will also think that this is not right. This is not how we have set up our criminal system. Subjecting those who commit less serious summary offences to deportation is not consistent with our parliamentary framework of criminal and immigration law. This inconsistency has been recognized as unconstitutional, and if we don’t rectify it, we will see the serious impacts in our already overburdened Federal Court system. The 10-year maximum sentence in Bill C-46 will worsen the unacceptable delays we see in the immigration system. It will also contribute to court delays in our criminal courts.
That is why I am raising this technical amendment before you. We have a clear choice before us. We can act now by adopting the amendment before us, or we can once again wait for our judiciary system to correct our error.
There may be some who will say this amendment has to be done under the Immigration and Refugee Protection Act. I say to them: When will that happen? What are the deadlines?
In the meantime, I absolutely can guarantee that no federal court is going to deport a person who has committed a summary offence. So what do we see? We already have the Jordan principle. Our courts are overclogged. Are we once again going to say, “Wait and see,” or are we going to take action?
The amendment I am tabling will stop summary offences from triggering deportation. If both a Canadian and a permanent resident commit a minor first offence, both would receive the same proportionate consequence for their actions.
To be clear, this amendment ensures that if a permanent resident commits what Bill C-46 considers to be a minor offence, they will receive the associated penalty laid out in this bill — nothing more, nothing less.
On the other hand, if a permanent resident commits any indictable offence, their actions will subject them to being deported. I agree that they should be deported because we have set up a system in which, if you come to our country, you are welcome, but, if you commit serious crimes, you are not welcome. I stand by that. But that should not apply to summary offences.
The amendment further recognizes that driving under the influence is a significant problem and should be taken seriously. As such, I’m not proposing that we lower any penalties. I’m merely proposing that summary offences will not trigger the deportation of a permanent resident.
Honourable senators, just a few days ago, in this Senate, we passed a similar amendment. A similar amendment, which sought to rectify the same unintended consequences in Bill C-45, was adopted by the Social Affairs, Science and Technology Committee and by us here in the Senate. We accepted a similar amendment under Bill C-45. We accepted that amendment as we accepted that we felt the government had erred, and we, as the Senate, fixed it. The similar amendment in Bill C-45 that I’m talking about is:
A conviction for an offence committed under section 9, 10, 11, 12 or 14 does not constitute serious criminality for the purposes of subsection 36(1) of the Immigration and Refugee Protection Act unless the person was sentenced to a term of imprisonment of more than six months in respect of that offence.
As we remember, honourable senators, the Social Committee recognized that these provisions were inconsistent and amended Bill C-45. As such, this amendment also exists for policy coherence between Bill C-46 and Bill C-45.
We go further in Bill C-46. My amendment goes further. Alongside this amendment, we will have a sunset clause of two years. Therefore, this amendment is not permanent. It simply signifies to the government that embedded within this legislation is an inconsistency between how we are labelling certain penalties and how we are punishing them. The sunset clause will give the government two years to recognize and deal with these inconsistencies. In the meantime, this amendment ensures that we are punishing according to the crime and not clogging the federal court system, which is already overburdened.
I am certain; I have no hesitation in telling you that I do not believe that our federal court system would ever deport a person like Steven, whom I was describing to you. That is the reason why I’m tabling this amendment. In Canada, in our framework, we should never deport somebody for committing a summary offence. That is something Parliament decided many years ago. It would not align with our Canadian values.
Honourable senators, if you give me the permission, I want to explain the chart that I have drawn. For me, this is really a technical argument, and I would like to explain to you visually what I’m saying.
The government has lumped together all criminal offences, whether they are summary or indictable. There is this lump on the top called “serious criminality.” But, when it comes to punishment, they have separated them. They have said that summary offences are less serious than indictable, and they have set out separately summary offences.
The bill deals with it. It lumps all the offences together, but it separates the punishment. It says, for summary offences, there is a fine and a prison sentence of less than six months. Then, for indictable offences, there is up to 10 years of imprisonment, for example, for murder, acts of terrorism or treason.
Honourable senators, I stand before you and say that there is a lot of talk about us being the chamber of sober second thought. There is a lot of talk about us being different. These days, there’s a lot of talk about how we are standing up to make things better for Canadians. I stand before you and say that if we really mean that, we should fix this. The government has erred, and it’s our duty to fix it. Thank you very much.
Amendment Speech – Hon. Ratna Omidvar:
Honourable senators, I rise to support Senator Jaffer’s amendment to Bill C-46 and to thank her for her work on this issue.
Let me start by saying that, like her, I believe that driving under the influence is a serious offence. I agree with the intent of Bill C-46 to take a stronger approach so that the mayhem on our streets and roads in Canada can be stemmed. No one should get behind the wheel if they are impaired from consuming alcohol or drugs. Should they choose to do so, then they should be caught and face the penalties that are specifically outlined in this bill.
I have no quarrel with the bill in this context. In fact, I support it.
However, Bill C-46 has an additional unintended, severe and disproportionate impact for permanent residents in Canada. Colleagues, just to remind you, every year, Canada permits 300,000 permanent residents to come into the country. Count that over three years, and you’re looking at close to 1 million people. I believe that if any of these permanent residents break the law in terms of drunk driving, then they should pay the price like any other Canadian, because we cannot afford to jeopardize the lives of innocent people on the streets.
But I don’t believe that permanent residents should bear an added punishment, not just another punishment, not just another fine, but a sledgehammer of a punishment of inadmissibility and deportation. This is exactly what Bill C-46 will do if we allow it to leave this chamber without this amendment.
To repeat parts of what Senator Jaffer has said so well, under the current law, not Bill C-46, a person convicted of general impaired driving, no bodily harm or death, could receive a maximum penalty of five years in jail. That offence, under IRPA, the Immigration and Refugee Protection Act, is considered to be ordinary criminality. Permanent resident status is, therefore, not put into jeopardy, unless they receive a sentence of more than six months, in which case it becomes a more serious offence.
Bill C-46 changes this. The maximum penalty moves from five to ten years, which then kicks DUI from ordinary criminality to serious criminality. Again, I have no quarrel with the penalties that are proposed in this bill. The Canadian Bar Association noted the consequences, though:
By raising the maximum potential penalty to ten years and bringing these offences under ”serious criminality“, a single impaired driving offence in Canada, regardless of the sentence imposed, could cause a permanent resident to be issued a deportation order and lose their permanent residency status.
I am also going to use an example to illustrate this. Imagine a 19-year-old Canadian and a 19-year-old permanent resident. They are friends, they attend the same university and generally have fairly similar lives as young students. Let’s call one Bob and the other Bilal. One night, Bob and Bilal both have one drink too many — I think we’ve all been there and can understand that — and make the terrible decision to get behind the wheel of a car. They are stopped by the police and given a Breathalyzer test, and they blow over the legal limit. No one is injured or killed, but since they blew over the legal limit, they are charged and then convicted, as they should be.
Bob, who is a young Canadian, gets his licence suspended and must pay a fine. Since this is his first offence under Bill C-46, he would pay a mandatory minimum fine of $1,000 or maybe $2,000, depending on how much alcohol he had in his system, and in all likelihood there may be no jail time.
Bob gets punished for his mistake, but he is able to resume his life. He will hopefully have learned his lesson, and he goes back to university and gets an education and a job. “Good luck, Bob,” we say.
The law is pretty clear in this and other cases. It says that this was a bad decision, but it also says that there is room for rehabilitation. Bob made a mistake, but he can still set things right.
Bilal, on the other hand, also loses his licence. He also gets a fine. He doesn’t get a jail sentence. He pays the fine, but now he is automatically inadmissible into Canada and could be deported. The choice to put his life back on the right track is simply not there for him, and yet the crime was the same.
He is faced with the awful reality of being deported, interrupting his education and his life. That is one very big double whammy. So we say to Bilal, “Goodbye, Bilal. Hasta la vista, c’est la vie, see you later.”
Honourable senators, the amendment that Senator Jaffer has proposed is a very sensible one. It will not reduce the penalties for anyone who is charged with DUI. It will not provide special consideration or exemption of any kind for anyone who drives under the influence.
It will, however, remove the severe, harsh, unintended impact on just one class of residents. It is a measure that is respectful of the bill that we have before us and that we need to deal with the consequences of DUI.
Let me move on to an aspect of the amendment that speaks to the temporary nature of the amendment. Some senators believe and have argued that this change should be in the Immigration and Refugee Protection Act, and I don’t argue with that. I’m not a lawyer, but I do know the Immigration and Refugee Protection Act, and let me tell you, colleagues, it is a beast of a particular kind. I don’t know if there is a timetable, I don’t know when it will be done, and, in the meantime, we have a community of potential first-time offenders who could be caught up in this way.
A compromise solution, therefore, is the proposal that is before you. It does not reduce the penalties for DUI. It does not provide any special consideration or exemptions for anyone.
The Senate, as Senator Jaffer has pointed out, has also approved a similar amendment to Bill C-45, and I think this brings a nice policy cohesion to what we are sending over to the other place.
I believe that after two years in this chamber I have a bit of a better sense of what my role is, and I’m not a lawyer. I’m surrounded by lawyers here, and I think it’s wonderful we have them, but I do understand we are legislators. We give bills a thorough review. We catch errors where we find them. We catch errors when they’re technical and consequential — I think this is both a technical error and a consequential error — and we ensure that Charter rights are protected. In fact, I think this is a perfect example of how and where we weigh in with sober second thought.
I would urge you to support this amendment because without this amendment Bill C-46 is not just seriously flawed, but we will be sending a very wrong message to the people of Canada.
Thank you very much.
Amendment to Bill C-46 – Questions and Answers:
Senator Dean: Thank you, Senator Omidvar, together with Senator Jaffer, for explaining a very considerable, obvious and worrisome disparity.
The question does arise, though, senator, and you touched on it, as to why an amendment should be done here as opposed to in the IRPA. I wonder if you could tell us more about that.
Senator Omidvar: Thank you, Senator Dean, for that question.
It has come to me as a huge surprise that a gaping hole of this sort could be in legislation without being corrected first in the Department of Justice. It was not raised in the House of Commons committee because the members of the bar that were called did not speak to this. It was only raised when Bill C-46 arrived at the Legal and Constitutional Committee and I got called by a number of lawyers about the unintended impact. Frankly, it came to me as a huge surprise, and I think it has come to the government, honestly, as a surprise as well.
Here is a mistake, and this is a perfect example of what we do: fix mistakes that have a huge impact on people’s lives, and not just one or two, as I said, but a huge community.
I hope that answers your question.
Senator Dean: Thank you, senator.
Hon. Peter Harder (Government Representative in the Senate): Colleagues, it has been my practice when appropriate to indicate to colleagues in the Senate the views of the government on matters before you vote, and it is in that spirit that I want to briefly speak today to indicate that the government does not support the amendment as presented and that this is not, from the government’s point of view, an unintended consequence. It is the framework of the bill we have before us.
I want to speak briefly to that because I think the senators have accurately described what the amendment’s intention is: It is to bring relief to those who are permanent residence holders from the consequences of the legislation as it presently exists with respect to the potential to be removed from Canada.
That does not avoid or otherwise prevent the remedies that are available to all permanent residents in terms of ministerial discretion and other measures that are part of our pre-removal process. I know that there are some who will say, “Well, but there is an inconsistency here with respect to the class of permanent residents that might be so affected.”
I do want to point out, though, that there is also an inconsistency, should this amendment be adopted, with respect to those who are found guilty of serious driving offences that are not related to impaired driving, but serious criminality and the like.
So where do we want to draw the line for inconsistency? The government has chosen, as a policy matter, to draw the line where it has, and that is in respect of the treatment of serious criminal offences including those involving impaired driving.
The other perspective from the government has also been raised by the senators, and I give them credit for both their amendments and their speeches. It would certainly be the view of the government that amendments of the Immigration Act should be done through the Immigration Act, not through the Criminal Code, and that the inconsistencies which are always part of the balancing of an Immigration Act amendment process — having lived through a number of them as the deputy minister I can tell you it’s not an easy process of balance — ought to be done wilfully and deliberately in the face of an amendment to the IRPA as opposed to the Criminal Code. And it is the view of the government that Bill C-46, as presented by the government, is the appropriate approach to deal with driving under the influence and impaired driving and that the consequences were not skipped but, rather, deliberately understood by the ministry and by the cabinet when they moved forward with this legislation.
I think it’s important for all senators to understand that to govern is to choose, and this government has chosen, yes, a rather strict approach to impaired driving to reinforce the message of Bill C-46, which is that with impaired driving we ought to have robust tools, even though we have just removed the most important element of this bill in our previous vote.
Senator Jaffer: Senator Harder, I know it’s not often you speak on the government’s position and today you have. What is very interesting is at the Legal Committee I did ask government officials and they did not say what they said. You are not testifying. You are on debate here.
If there was a government position, there should have been witnesses at committee to say what you said. That’s the right place because you’re not a witness here, with all due respect.
An Hon. Senator: Question.
Senator Jaffer: You give the government’s position, but I ask: Why are you giving the government’s position here now and not at committee?
Senator Harder: Again, senators, I have frequently spoken about the government’s position on various matters before the chamber, and I think it is only appropriate that all senators have that information before them as they choose how to vote. I do that with deliberation and with dispassion because it is important information to bring to the attention of all senators.
Senator Omidvar: Senator Harder, you have been Deputy Minister of Immigration, so you know about the beast that I’m talking about. Ministerial discretion — you raise the issue: “Oh, you get deported, fine; you can go apply for ministerial discretion.”
Can you describe to us the exact process, the effort, the money that is required to get you from point A to a decision?
Senator Harder: Well, senator, I certainly have a better understanding of what it was 20 years ago. What I can tell you is that the ministerial discretion in the act is an important safe zone to assure that those caught in the unintended consequences in a serious way can be dealt with through ministerial discretion.
I do not for a minute think this is the last time we will be debating this matter. I do think that experience with this law may well cause policy debate with respect to the IRPA, but no matter where you draw the line there will be unintended consequences and somebody saying, “Well, the impaired driver who is a permanent resident is differently treated than for another offence.”
In Bill C-46, this government is seeking to ensure, with respect to the criminal law, there is equal treatment.
Senator Omidvar: Senator Harder, would you think that a deportation order is a minor issue for an individual? Is it a serious life-changing decision that they would have to bear? Would you agree with that or say it’s something people can cope with?
Senator Harder: Senator, obviously I would agree with that.
Hon. Leo Housakos: I have a follow-up question to Senator Omidvar. On ministerial discretion, can you tell us how many applications a year a minister would get before them and how many would a minister currently approve? My understanding is they receive requests in the thousands, but only a small number are actually granted.
Senator Harder: Senator, I don’t have the statistics with me. What I can tell you, as you will know from your own work in this department, is that ministerial discretion and other recourse remedies in our system are important safeguards.
Hon. Art Eggleton: I find Senator Harder’s intervention somewhat puzzling because this is a similar motion — certainly the first part — that was passed on Bill C-45 and he supported it. It came in the committee report and he supported the adoption of the committee report. He did not get up and make a similar kind of statement here that this is something that should be a change in the Immigration Act. And maybe ultimately it should, but getting changes in the Immigration Act is like pulling teeth. It’s a very difficult thing to do. Meanwhile, this is going to go into effect very soon. To put people into the jeopardy of a double punishment, particularly an even more severe punishment than the act intends and the punishment that may be meted out by the courts, is a very unfair circumstance.
The provision here, as described by Senator Jaffer and Senator Omidvar, is to deal with cases that are a summary conviction that have a fine, maybe, or at maximum up to six months in prison. These are not serious criminality kinds of offences or punishment.
Now, driving under the influence can be a very serious matter, no doubt about it, but let the courts decide what is serious and what in fact is less than a very serious criminal activity. But if it comes within the category she suggests here, then I think it goes beyond reason, in examples that both senators gave, to expect that those double penalties are going to be applied here.
Until there is a change to the Immigration and Refugee Protection Act, I think it’s appropriate to have it, just as it was appropriate to put it in Bill C-45. We adopted that in this Senate Chamber.