Why a DUI in the United States may prevent you from crossing the Canadian border and what options you have to overcome your inadmissibility.
Travellers seeking to cross the Canadian border after a past driving under the influence (DUI) conviction, may experience issues due to their prior offence.
Many are unaware of Canada’s strict laws on DUIs which is why it is so common to hear stories about travellers denied entry after a DUI. In 2018, Canada increased the penalties on DUI offences when they legalized possession of marijuana, as part of a political compromise to deter Canadians from driving while they are impaired by drugs or alcohol.
When determining whether a traveller is inadmissible, they assess whether the foreign offence is equivalent to any Canadian offence covered by a federal statute, such as the Canadian criminal code.
A DUI conviction in the state where it occurred will have its equivalence assessed under the Canadian statute. Starting in December 2018, the maximum penalty on a first time DUI offence doubled from 5 years of imprisonment to 10 years of imprisonment and although, under the Canadian criminal code, a DUI remains a hybrid offence, it is a hybrid offence that Canada considers to be serious criminality. Hybrid offences are like misdemeanors in the united states, while offences that are indictable offences are comparable to a felony in the American penal system. However, not all felonies render a person inadmissible to Canada, it is more important that there is an equivalent offence in Canada and then the sentence that is assigned to that offence.
Upon entry to Canada, American travellers are required to present either a valid passport or enhanced driver’s license, both of which are directly connected to the the FBI’s criminal database. With very limited exceptions, DUI convictions will appear on this record and this is how Canadian border guards find out about a traveller’s prior criminal history. These records will contain all entries going back as far as the traveller’s 18th birthday and even old offences may result in being denied entry to Canada.
How does an American with a prior DUI enter Canada?
Travellers have several different remedies/options to overcome their inadmissibility that results from a DUI:
Temporary Resident Permit (TRP)
A first option when less than have years have passed since the completion of the sentence on the DUI, a Temporary Resident Permit is an option for overcoming inadmissibility. The TRP is like a hall pass, it allows a traveller to temporarily enter Canada when they are otherwise inadmissible. If the TRP is approved, it has a maximum 3 year validity.
All applications for TRPs require a significant reason for travelling to Canada. IRCC (Immigration, Refugees and Citizenship Canada) are assessing the application to ensure that the applicant is not likely to pose a threat to any Canadian. The processing of these applications are discretionary and it is imperative that the application be extremely thorough and well-documented.
Criminal Rehabilitation
Once more than 5 years from the completion of the sentence have passed, American travellers may be eligible to apply for Criminal Rehabilitation. For those who are less than 10 years from they completed their sentence, this is the only way to permanently clear their record and become eligible to enter Canada. None of the prior prohibitions related to their offence will apply: those approved for criminal rehabilitation are permitted to enter and leave Canada as any other American citizen, so long as they do not reoffend.
Once 10 years passes from the completion of their sentence on their DUI the traveller could be deemed rehabilitated, by the passage of time, without submitting an application. This is another way to access Canada however, this 10 year rule only applies to individuals who only have one conviction on their record and that conviction must be for a non-serious offence. For the time being, this applies to DUIs, however once 2028 arrives and 10 years have passed from 2018, the date the DUI laws changed in Canada – this will no longer apply since DUI is now a serious offence in Canada. This also does not apply to those with more than one conviction on their record.
Legal opinion letter
Legal opinion letters written by experienced Canadian immigration lawyers can be extremely beneficial for travellers in several circumstances. Those with only pending charges, those who have a conviction for an offence that has no equivalence under Canadian law, those deemed rehabilitated and those who resolved their charges with some alternative resolution may be able to cross the border without submitting any formal application to IRCC. In these circumstances, a lawyer is always best placed to explain the details of the case and outline the reasons the traveller is not inadmissible to Canada.
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