How Does Justin Timberlake’s Impaired Driving Conviction Affect his Ability to Enter Canada?

Introduction

On June 19, 2024, Justin Timberlake was charged with impaired driving in Long Island, New York.? It has recently been reported that he pled guilty to the charge on September 13, 2024, and was sentenced to a $500.00 USD fine (with a $260.00 USD surcharge) plus 25 hours of community service with a non-profit of his choosing.?

So, how does this conviction affect the ability of Mr. Timberlake (and others like him) to enter Canada?? As will be explained below, the commission of many criminal offences, including impaired driving, will typically result in inadmissibility to Canada.? However, relief is also available in appropriate circumstances.

Relevant Grounds of Inadmissibility

The criminal grounds of inadmissibility appear in Section 36 of the Immigration and Refugee Protection Act (“IRPA”).? It describes two different levels of criminal inadmissibility: (1) criminality, and (2) serious criminality; serious criminality is generally more difficult to waive.? The provisions most relevant to Mr. Timberlake’s case appear below:

a)???? A36(1)(a) - A foreign national (and a permanent resident) is inadmissible on the grounds of serious criminality for having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.

b)???? A36(2)(a) - A foreign national is inadmissible based on criminality for having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament

A36 also discusses Canadian convictions and situations where an individual has committed the offence (either in Canada or abroad) but has not been convicted of the crime.? However, as Mr. Timberlake was convicted of an offence outside of Canada, we will focus on that scenario.

In order to determine whether a foreign conviction results in inadmissibility to Canada, it is necessary to first determine whether there is an equivalent offence in Canada, which would apply if the offence had been committed in Canada instead of abroad.? Once the equivalent offence has been identified, it is necessary to determine the maximum penalty that could have imposed for the offence in Canada.?

The Equivalent Canadian Offence and the Maximum Term of Imprisonment

The offence of impaired driving appears in Clause 320.14(1)(a) of the Canadian Criminal Code?("CCC"). It states that everyone who operates a conveyance, while their ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug, commits the offence of impaired driving.?

The penalty for impaired driving appears in CCC 320.19(1).? It states that every person who commits the offence of impaired driving is guilty of:

a)???? An indictable offence and liable to imprisonment for a term of not more than 10 years; or

b)???? An offence punishable on summary conviction and liable to a fine of not more than $5,000 CAD, or to imprisonment for a term of not more than two years less a day, or to both.

Many offences that appear in the CCC, including impaired driving, are considered hybrid offences.? In such cases, the Crown (i.e., the Prosecutor) may elect to proceed either summarily or by indictment.? The term “summary conviction” roughly equates to a U.S. misdemeanor while the term “indictable offence” roughly equates to a U.S. felony.?

If a foreign conviction is found to be equivalent to a summary conviction in Canada, it will not result in inadmissibility unless the foreign national has been convicted of two summary conviction offences, not arising out of a single occurrence. ?Unfortunately, A36(3)(a) states that an offence, which may be prosecuted either summarily or by way of indictment, is deemed to be an indictable offence.? In other words, if the equivalent offence in Canada is a hybrid offence, the foreign conviction will always be deemed to be an indictable offence.?

As a result, the maximum period of imprisonment for impaired driving in Canada is “not more than 10 years.”? As even a first offence will be punishable by a maximum term of imprisonment of at least 10 years, a foreign conviction for impaired driving will result in inadmissibility to Canada on the grounds of serious criminality.?

Of course, impaired driving in Canada was not always punishable by at least 10 years of imprisonment.? When the Government of Canada legalized recreational marijuana it also passed Bill C-46, which increased the maximum penalties for impaired driving on December 18, 2018.?

Prior to Bill C-46, impaired driving (where no bodily harm or death occurred) under the former CCC 255(1) was a hybrid offence.? If the Crown proceeded by indictment, the maximum penalty that could have been imposed was only five years of imprisonment.? In other words, a conviction under the former CCC 255(1) would have still resulted in inadmissibility but based on criminality rather than serious criminality.?

In Tran v. Canada (Public Safety and Emergency Preparedness), the Supreme Court of Canada concluded that the relevant date for assessing serious criminality under Clause 36(1) is the date of the commission of the offence.? Therefore, a foreign national who committed the offence of impaired driving prior to December 18, 2018, would be inadmissible to Canada on the basis of criminality but not serious criminality.? Unfortunately, since Mr. Timberlake committed the offence of impaired driving after December 18, 2018, he is still considered inadmissible on the basis of serious criminality.?

It should be mentioned that there are other arguments that can be considered, where applicable, which can potentially allow a foreign national to avoid inadmissibility to Canada.? For example, a foreign national who received a discharge for their foreign offence (e.g., a finding of guilty without a formal conviction being recorded) might be able to argue that it is the equivalent of a Canadian discharge.? In addition, a foreign national who received post-conviction relief for their foreign offence, such as an expungement, might be able to argue that it is the equivalent of a Canadian Record Suspension/Pardon.? However, we will assume for the purposes of this discussion that none of these other arguments apply.

Potential Relief from Inadmissibility

On October 18, 2024, Mr. Timberlake performed at the Scotiabank Arena, in Toronto, Ontario; this clearly occurred after his conviction for impaired driving.? So, how was he able to enter Canada and perform at this concert, despite his inadmissibility?? Given the recency of the offence, Mr. Timberlake likely obtained a Temporary Resident Permit (“TRP”), which temporarily waived his inadmissibility and allowed him to perform in Canada.?

According to A24(1), a TRP may be issued to a foreign national who, in the opinion of an officer, is inadmissible, or who does not meet the requirements of the IRPA, if an officer is of the opinion that it is justified in the circumstances.? Immigration, Refugees and Citizenship Canada (“IRCC”) has published online guidance regarding the issuance of TRPs.? According to this guidance, an officer may consider the following factors (among others):

a)???? The need for the foreign national to enter or remain in Canada is compelling; and

b)???? Whether the need for the foreign national’s presence in Canada outweighs any risk to Canadians or Canadian society.

In other words, when considering a TRP, applicants must demonstrate a sufficiently compelling reason for entering Canada.? The officer will also need to determine whether an applicant’s compelling need to enter Canada outweighs any potential risk to Canadians.?

Clearly, travelling to Canada for tourism would not be considered a compelling reason.? However, travelling to Canada in order to perform at a concert for which thousands of tickets have been sold would be considered sufficiently compelling when balanced against a single impaired driving offence, even if that offence results in inadmissibility based on serious criminality.? Of course, Mr. Timberlake likely received a single-entry TRP, valid for a limited period of time.?

Although it is not currently available to Mr. Timberlake, he will eventually become eligible to also seek a Rehabilitation, which is essentially a permanent waiver of inadmissibility.? According to A36(3)(c), A36(1)(b) and A36(2)(b) will not apply to a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated; the prescribed period is five years. ?In other words, a foreign national or permanent resident may apply for a rehabilitation five years after they have completed their sentence.?

In Mr. Timberlake’s case, if what the media has reported is accurate, he was only required to pay a fine and perform 25 hours of community service.? Assuming that he was not also given a period of probation, Mr. Timberlake should be eligible to seek a Rehabilitation five years after the fine has been paid and he has completed his requirement of community service.?

According to IRCC’s published guidance regarding rehabilitations, when adjudicating such an application, officers will consider a number of factors, including the following (among others):

a)???? The number of offences and the circumstances and seriousness of each offence;

b)???? The applicant’s behaviour since committing the offence(s);

c)????? The applicant’s explanation regarding the circumstances of the offence(s) and why they are unlikely to re-offend;

d)???? Any support that the applicant receives from their community;

e)???? The applicant’s representations regarding why they believe they are rehabilitated; and

f)?????? The applicant’s present circumstances.

Unlike TRP applications, rehabilitation applications do not require the applicant to establish a compelling reason for entering Canada.? For this reason, rehabilitations can be somewhat easier to obtain than TRPs.? However, applicants cannot seek a rehabilitation until five years after the completion of their sentence and it can take over a year to adjudicate such an application (even longer in the case of serious criminality).?