The following information pertains to any driving while under the influence of alcohol convictions, including the criminal charges of driving under the influence (DUI), driving while impaired/intoxicated (DWI), driving while ability impaired (DWAI), driving under the influence of liquor (DUIL), operating while intoxicated (OWI), operating under the influence (OUI), and operating a motor vehicle while intoxicated (OMWI), amongst others. The information is similarly applicable for individuals with other driving arrests, such as those of reckless or negligent driving.
How does Canada find out about my past DUI?
When an individual attempts to enter Canada, whether they are driving, flying, or arriving by waterway, their United States passport is scanned upon arrival. A person’s passport is linked to their full FBI criminal record, so the border agent or immigration officer can see the traveller’s past arrest and conviction history. Even if the DUI or DWI conviction is from several decades ago, it will still appear on this criminal record. Similarly, when a Canadian tries to enter the United States, their passport is linked to their RCMP criminal record. With this in mind, FBI criminal records are entered manually and occasionally mistakes are made. Requesting a background check may be a helpful way to know what is on your FBI criminal record before entering Canada.
Please note that it is against Canada immigration law for an individual to lie or misrepresent themselves to a Canadian border agent about their DUI conviction or any other offenses or arrests. It is a breach of the Canadian Immigration and Refugee Protection Act and can result in an automatic refusal to Canada.
Why deny people with a DUI entry to Canada?
When a border agent reviews an American’s criminal history report, Canadian immigration law dictates that it is not the severity of the conviction in the United States that is relevant, but the severity of the equivalent conviction in Canada. For example, it does not matter if the DUI or DWI conviction was only a misdemeanour, if the individual was stopped while driving due to unrelated reasons, if the BAC was only marginally above the legal limit, or if the individual agreed to a plea deal with the district attorney. The border agent is only interested in how that conviction translates to the Canada Criminal Code.
In Canada, a DUI or DWI conviction is a hybrid offense. This means it has the potential to be charged as a summary (less serious) or indictable (serious) offense. As of December 2018, DUIs and dangerous driving convictions will be considered serious criminality, with significant implications for admissibility. Since a Canadian DUI or DWI conviction is classified as serious, it may be considered a crime of moral turpitude. This means it is a crime that speaks to the offender’s character, and the person is therefore considered a possible threat to Canada. For this reason, Canadian border agents will deny people who seek entry into Canada with a DUI or DWI conviction if they cannot demonstrate a necessary need to enter Canada, as well as if they cannot demonstrate that they do not pose a risk to Canadian citizens.
What if I don’t drive while I’m in Canada?
In many cases, the individual with a DUI or DWI conviction will not be driving a vehicle during their time in Canada. This may be the case for someone who is flying into the country then relying on taxi services, or accompanying a friend or co-worker who will be doing the driving during the trip. However, this does not have any impact whatsoever on the individual’s inadmissibility to Canada. Because the Canadian border agent can never fully guarantee that the traveller will not be driving while in Canada, the agent must proceed as though the traveller has the potential to do so. As a result, the individual may still be deemed inadmissible to Canada at the border. For similar reasons, an individual’s promise to abstain from alcohol during their stay holds little weight in the assessment of their admissibility.
Does it matter how I enter Canada?
Whether an individual is driving, flying, or entering Canada via waterway, their passport will be reviewed and any past record will be acknowledged.
Generally, when one is flying into Canada with a pre-purchased return flight it increases their likelihood of approval. This is because the border agent can see that they already have a return ticket, and are therefore unlikely to overstay in Canada. If the individual is denied, the border agent must escort them to purchase an immediate return flight and the agent understands that this is a hassle for both the traveller and the agent himself. For these reasons, an individual is less likely to be rejected. However, the agent still reserves the right to deny a traveller and if denied, the cost of the return flight falls onto the traveller, not the airport or the Canadian government.
While driving to Canada is the most common method of travel into the country, individuals who drive to Canada to request permission for entry are also the most likely to be denied by border agents. This is because if one’s home is within driving distance of the border, the border agent knows that upon review of their record it would be extremely easy to send them back. Furthermore, granting permission to enter Canada at the border often requires the approval of senior border officers, which may signify a longer wait time if crossing at a more remote border.
Individuals entering Canada by ship, such as tourists on a cruise ship, are likely to be granted entry into Canada. This is because border agents know that the traveller will only be in Canada for a very short time; the duration of the cruise’s presence in Canada. Furthermore, the agent is aware that the traveller does not have any other option for leaving Canada, and this will affect their assessment of the application. However, if the application is denied it is possible for the agent to order the traveller to stay on the cruise ship for the duration of its time in Canada.
In every case, travelling with other people may increase one’s chance of acceptance because the border agent realizes that a denial would not only affect the individual, but also their family or coworkers.
Finally, please note that it is not illegal to attempt to enter Canada with a prior criminal conviction such as a DUI or DWI. While individuals do bear the risk of being turned away at the border, they will not face arrest or detention in Canada.
Will everyone I’m travelling with find out about my DUI conviction?
It is possible to keep one’s criminal history private from fellow travellers when crossing the border. The simplest method is by flying into the country, as typically people pass through customs individually and can therefore have a private conversation with the border agent about their DUI and any other offenses on their record. If one has received prior approval to enter Canada, this process is even more painless. It may be slightly more challenging to avoid disclosing your criminal history when driving across the border. In this case, everyone must submit their passports at once, and the individual faces the risk of the border agent addressing his or her inadmissibility in front of the other passengers. In this case as well, prior approval to enter Canada may lower the risk as the border agent could just waive the car through. If the individual does not have prior approval, they will be sent to secondary screening. The actual screening will be confidential, however it may raise questions from fellow travellers as to why they are being delayed.
It may be helpful to note that formal approval to enter Canada is not solely required for the case of a criminal record. Often Canada will request paperwork for entry for other reasons as well, such as health reasons or a past overstay in Canada. Therefore, informing the border agent of paperwork documenting one’s approval to enter Canada does not necessarily mean that the individual has a criminal record.
How do I get permission to enter Canada with a DUI conviction?
There are three avenues for individuals with a DUI who are seeking entry to Canada:
The first is a Temporary Resident Permit (TRP), which is similar to a visitor visa as if approved it grants the individual entry to Canada for a temporary amount of time. Depending on the purpose of travel, this approval can last between one day up and three years. TRPs are only granted to individuals who can document a necessary need for entry to Canada, such as an important work meeting or a close family member’s wedding. TRPs are typically not granted for vacations, bachelor parties, shopping excursions, etc. TRPs can be granted in advance at a Canadian Consulate, or at the Port of Entry on the day of travel. For those submitted to the consulate, it may take up to a years’ time to be assessed. Applications at the Port of Entry such as the border or an airport will be assessed on the spot. Regardless of the Port of Entry, the Canadian government charges $200 CDN for this application.
The second option is a Criminal Rehabilitation Application. The purpose of Criminal Rehabilitation is to demonstrate to the Canadian government that the individual has been fully rehabilitated from their criminal past and will never commit a crime again. Therefore, they do not pose a risk to Canada. This application can only be sent to a Canadian consulate, and it may take up to eighteen months to be assessed. Once a Criminal Rehabilitation application has been approved, the individual can travel into Canada indiscriminately, regardless of purpose of travel. This includes travel to Canada in order to travel somewhere else, vacationing in Canada, and visiting a common-law partner who resides in Canada. In order to apply for Criminal Rehabilitation, at least five years must have passed since the completion of sentencing of all offenses. For example, if a person was convicted of a crime and was sentenced to two years’ probation, the counting of the five years would begin after the probation was completed. Similarly, if a person was required to use an ignition interlock device for six months, the counting of the five years would begin after these six months. Required community service hours, jail time, driver license suspension, fine payment, and mandatory driving school all constitute terms of sentencing.
Unlike Criminal Rehabilitation, Temporary Resident Permits have no required time limit. Therefore, if less than five years have passed since the completion of sentencing, one can still apply for a TRP.
There exists a process called “Deemed Rehabilitated,” which is available to individuals who only have one non-serious offense on their record and at least ten years have passed since the completion of sentencing. This removes the offence from the record, meaning the individual is no longer inadmissible to Canada. This process requires no paperwork and there is no associated cost. Note that as of December 2018, a person with a single DUI conviction (even more than 10 years ago) cannot be Deemed Rehabilitated simply by the passage of time; they must apply for Criminal Rehabilitation.
Do I need an immigration lawyer if I have a DUI conviction?
Both a Temporary Resident Permit and a Criminal Rehabilitation application can be submitted without legal representation.
However, it is advised that individuals looking to maximize their chances of entry seek the assistance of a professional Canadian immigration lawyer. Temporary Resident Permit and Criminal Rehabilitation applications can be confusing, and are often denied if the applicant fails to fill in the required information or abide by all the regulations. Even sending the application to the incorrect consulate can result in it never being reviewed at all. Canadian immigration lawyers assist the individual in completing and submitting this form, to ensure that it is not automatically denied on a technicality. In addition, the role of a Temporary Resident Permit or Criminal Rehabilitation Application is to argue that the individual needs to enter Canada, and does not pose a risk to Canadians. Therefore, an experienced lawyer can assist in the construction of this argument by advising on relevant evidence to include and supporting the individual’s collection of documents.
Please note that only Canadian immigration lawyers are eligible to act as representatives on Temporary Resident Permit and Criminal Rehabilitation Applications, as per the regulations of the Canadian government. This is because it is a complex document that is governed by Canadian immigration law, and therefore requires a lawyer who is trained and certified in a Canadian province to oversee its completion.
How likely am I to be accepted to Canada with a DUI conviction?
As outlined above, a TRP or Criminal Rehabilitation application is approved based on the strength of its argument. The final decision is always left to the discretion of the border agent, and therefore there can be no guarantees with regards to who is and who is not admissible. In general, border agents look at the number of offenses on a record, the ages of the DUI and other offenses, the circumstances of the DUI and other offenses, the sentencing for the DUI and other offenses, the purpose of travel, and the evidence provided. Based on their assessment of the application, they determine if the potential safety risks of allowing the individual into Canada outweigh the person’s need for travel.
What do I do if I’m refused entry to Canada due to my DUI conviction?
If one is refused entry from Canada due to criminal inadmissibility from a past DUI conviction or any other offenses, it is important that they address their inadmissibility before attempting to enter again. This is because immediately trying to enter following a refusal will appear to the border agent as an attempt to deceive the Canadian government. This will result in an automatic denial, as well as a potential ban from entering Canada at all. It is advised that the individual consult a Canadian immigration lawyer before they try to enter again.
If an individual is denied entry to Canada because of their DUI conviction, in many instances the deciding border agent will enter a comment into the Canadian government’s database. In this comment, they explain why the individual’s need to enter Canada did not outweigh the potential safety risks of that person’s entry. Following this process, the individual may request these Case Notes to understand what changes to make to future applications to fully address the agent’s concerns.
Please note that even if one’s application is denied, they are eligible to apply again. Similarly, if one’s TRP application is approved and then expires, that individual may also apply again. There is no limit on TRP applications, however a number of denied TRP applications may reflect poorly on an individual’s chance of approval for subsequent applications.
FWCanada provides a free assessment form, which will help determine your eligibility. An immigration attorney will give you peace of mind as well as the assurance of a complete and well rounded application – contact us here.
FWCanada is a Montreal-based immigration law firm that provides professional legal services on Canadian immigration. For more tips and updates on Canadian immigration follow FWCanada on Facebook, Twitter, and Linkedin.
