Innovative solutions in travel policy

John Marroquin

The Republic of Canada is known for having some of the strictest laws for immigration and visitation for foreign nationals who have been convicted of driving under the influence (DUI), or equivalent misconduct in their respective countries. With the steadily rising number of tourists year by year and the number of foreign nationals being barred from entry rising exponentially in step, the amount of lost revenue cannot be ignored. At this point, a travel policy law that was initially created for the betterment and protection of the Canadian public is actually actively hindering international commerce.

The Travel Leniency Act (TLA) is meant to remedy this, by relaxing the stringent policy that defines “serious criminality”, more specifically regarding offenses that were not violent or felonious in nature. The introduction of this law as an addendum to the current immigration framework would further stimulate the tourist industry, create more jobs, and entice visitors to contribute to Canada’s flourishing GDP.

Canadian History and Status Quo 

The governing legislature that dictates current immigration procedures in Canada is the Immigration and Refugee Protection Act (IRPA) (S.C. 2001, c. 27). Passed in 2002, this act furnishes foreign nationals and immigrants with specific rights and limitations and details the minimum qualifications for admission, residency, and refugee status. In 2018, an amendment to the IRPA imposed tighter restrictions upon those who have been accused of acts that would be considered “Serious Criminality” under Canadian law. The Division 4 Inadmissibility section of the IPRA states that grounds for permanent residents or foreign nationals being denied admission include:

1.  having been convicted of an offense outside Canada that, if committed in Canada, would constitute an offense under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or
2. committing an act outside Canada that is an offense in the place where it was committed and that, if committed in Canada, would constitute an offense under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.

Note that in Canadian law, a summary conviction and an indictable offense are equivalent to the United States Misdemeanor and Felony charges respectfully. Under Canadian criminal law, a DUI is a “hybrid” charge. No different from a US wobbler charge, a hybrid charge can be either a summary conviction or indictable offense in Canada, and therefore is treated at the highest level.

In Canadian Criminal law, the DUI equivalent is “Operation while Impaired”. The offense is described thusly:

320.14 (1) Everyone commits an offense who

(a) operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;

320.19 (1) Every person who commits an offense under subsection

320.14(1) or 320.15(1) is guilty of(a) an indictable offense

The only remedy at this time is to prove that criminal rehabilitation has occurred. Rehabilitation applications can be filed 5 years after sentences have been completed, so long as no subsequent convictions have occurred.

Law Detail

DEFINITIONS

Serious Criminality – Criminal behavior that resulted in the conviction of an indictable offense or equivalent. Includes summary convictions that were violent in nature.

Non-Violent Crime – Includes crimes of petty theft, burglary, driving under the influence. It does not include crimes that would constitute a threat to national security.

Tourist – Any foreign national who enters the Republic of Canada with no intention of being a permanent resident or citizen.

Pardon – A written, legal indemnification of prior crimes issued expressly by the Canadian Minister of travel for foreign nationals.

LEGISLATURE

The Travel Leniency Act will serve as an addendum to the Immigration and Refugee Protection Act and shall address and reform the current travel inadmissibility standards.

WHEREAS the current definition of “serious criminality” is found wanting and hinders international tourism and travel to the Republic of Canada and

WHEREAS potentially non-violent summary convictions such as “Operation while impaired” or similar charges for foreign nationals are treated with equivalency to indictable offenses Therefore

PASSED BY PARLIMENTAL REVIEW, LET IT BE ENACTED THAT:

SECTION I. The definition of “serious criminality” for the purposes of the Immigration and Refugee Act will no longer include summary convictions or equivalent changes when and if they are proven

• To have been non-violent in nature;

• To be offenses that are not a threat to national security;

• To have been formally pardoned by the Canadian government under current law;

SECTION II. Shorten the term of any application to the Minister for a pardon term to 2 years after initial conviction or sentencing. This includes any offense that meets the above criteria. Any conviction that is older than 5 years will be considered rehabilitated by way of time passed. Applications will take no longer than 5 business days to be processed from the date of submittal.

SECTION III. Temporary Residency Permits will be issued with expediency to foreign nationals intending to stay for a term no fewer than 3 days, and no more than 10. Formal reporting is not required for tourists who provide

1. Reasonable proof of a duration of stay not exceeding 3 days
2. Obvious intent to vacate the nation within the next 24 hours

SECTION IV. Formally deputized officers of the Canadian Border Services Agency will prove the veracity of claims during an investigation, and records of the investigation will be held for a period not exceeding 3 years from the date of recording.

Adoption Procedures

The TLA will shorten the timeframe required between the year the offense occurred, and the execution of this change will result in a higher rate of applications. As a result, the Minister will be able to delegate signature authority to members of their staff to mitigate the higher volume.

Destination Canada, the Canadian Government’s official tourism website, will release a statement of the law in laymen’s terms to clarify the ramifications of this act on foreign nationals. This will be particularly good optics with the United States and China, both of which comprise the bulk of tourists visiting Canada.

Anticipated Response

Between 2018-2019 36,145,370 foreigners entered the county, and of this 8,781 were detained, which comprises .024% of the 2018-2019 year. From 2007-2016 a total of 267,449 foreigners were denied entry from Canada. In 2019 313,580 immigrants were entering Canada for various purposes and from a variety of countries.

Tourism represents a significant and lucrative source of revenue for Canada, bringing in $33.9 billion within the first nine months of 2019, and boosted Canada’s GDP by 5.9% from the previous year. Tourism accounted for 750,000 jobs in 2018, and a record-breaking 21.13 million tourists traveled to Canada from across the globe in this same period.

Based on these figures, over nine years (2007-2016) nearly $430 million in tourist revenue were not captured, and nearly 10,000 jobs in the tourist industry were not realized. Although this may seem like a small leakage, the steadily increasing numbers year by year present a unique opportunity for the people of Canada to stimulate local economies with travel. This will be a very positive outcome, and the provinces will reap the rewards, creating more jobs.