A conviction for Driving Under the Influence of alcohol (DUI) can cause potential problems for anyone planning to travel to Canada, regardless of the reason. Whether a person is aware or not that a DUI can prevent their entry, the Canada Border Services Agency has the authority to deny entry to anyone they confirm as inadmissible.
There are accounts of people who, with one DUI or more on record, have entered Canada on numerous occasions in the past, and have never been asked anything about their past convictions, nor were they even stopped. A person can sometimes even be completely unaware that a DUI conviction on their record can prevent entry to Canada, and will go about their business, sometimes making regular travels to Canada for any given number of reasons, such as business meetings or to see family. The fact remains however, that having a DUI on record can be sufficient to prevent entry to Canada. While a person can sometimes enter Canada without being asked any questions, sooner or later, either information will become available to officers scanning a person’s passport, or a border officer will flat out ask if a person has ever committed any offenses. If the issue of a DUI, and any other offenses on record, had not previously been dealt with properly, a person facing this situation will usually not be allowed entry into the country.
With respect to the issue of inadmissibility, Canada’s Immigration and Refugee Protection Act has been drafted in such a way as to cast a net large enough to encompass any DUI arrest and/or pending court disposition. Therefore, from the moment a person is arrested for driving under the influence, this can potentially prevent any travel to Canada. It is also incorrect to assume that any court case for a DUI charge still pending will allow a person to go to Canada nonetheless. Some believe in that respect that, due to the court not having reached a final decision, a person could still be allowed entry to Canada in the meantime. Rather, the opposite position should be taken on such an issue. In other words, as long as the court has not reached a decision with respect to a pending DUI charge, a person will usually be considered inadmissible, and should therefore not travel to Canada without having first requested, and obtained the proper authorization. If, in reaching a decision, the Court issues a verdict of “not guilty”, and dismisses the charge of DUI, the question of whether a person can then again enter Canada legally, without obtaining any prior authorization, can be revisited. However, as each case presents its own specific facts, we would invite you to contact us and speak with one of our specialized attorneys. On the other hand, if a conviction results from the Court’s decision, the person will remain unable to go to Canada and will require special authorization to do so.
A defendant in a court case facing a DUI charge will sometimes have the option of pleading Nolo Contendere, essentially meaning that he or she accepts the conviction without actually admitting guilt. If no guilt was admitted in Court, can this help a person enter Canada despite having a DUI conviction on record? To answer this question, what is important to remember is not how a conviction was reached, but rather the fact that a conviction exists, regardless of how it was reached. From the moment there exists a conviction for DUI on record, inadmissibility can potentially apply and possibly prevent a person from going to Canada.
DWI will usually stand for Driving While Intoxicated. Depending on where an alcohol-related driving offense took place, the name of the charge may differ. Most commonly used is the acronym DUI, which stands for Driving Under the influence, and will be applied in the following states:
Alabama (AL) Alaska (AK) Arizona (AZ) California (CA) Colorado (CO) District of Columbia (DC) Delaware (DE) Florida (FL) Georgia (GA) Idaho (ID) Illinois (IL) Kansas (KS) Maryland (MD) (the state of Maryland employs the term DUI, as well as the term DWI for Driving While Impaired) Massachusetts (MA) Montana (MT) Nebraska (NE) Nevada (NV) New Hampshire (NH) New Mexico (NM) North Dakota (ND) Oklahoma (OK) Oregon (OR) Pennsylvania (PA) Rhode Island (RI) South Carolina (SC) South Dakota (SD) Tennessee (TN) Utah (UT) Washington (WA) West Virginia (WV) and Wyoming (WY).
Other states, such as the following, will instead use the acronym DWI, for Driving While Intoxicated:
Arkansas (AR) Missouri (MO) New Jersey (NJ) New York (NY) Texas (TX) Virginia (VA)
While the states of Minnesota (MN) and North Carolina (NC) both also use the acronym DWI, their meaning is slightly different, as it refers to Driving While Impaired.
The following states also have their own terminology for alcohol-related driving offenses:
Connecticut (CT): Operation Under the Influence (OUI), Hawaii (HI): Operating a Vehicle Under the Influence (OVI), Indiana (IN): Operating Vehicle While Intoxicated (OWI), Iowa (IA): Operating While intoxicated (OWI), Kentucky (KY): Operating While Under the Influence (OUI), Louisiana (LA): Operating a Vehicle While Intoxicated (OVI), Maine (ME): Operate Under the Influence of Intoxicants (OUI), Michigan (MI): Operating While Intoxicated (OWI) or Operate While Visibly Impaired, Mississippi (MS): Operate Vehicle Under Influence (OVI), Ohio (OH): Operating Vehicle Under the Influence (OVI), Vermont (VT): Operating Vehicle Under the Influence (OVI) and Wisconsin (WI): Operating While Intoxicated (OWI).
In determining if a person can enter Canada or not, what must be assessed is not the conviction itself, but first, if there is a corresponding offense in Canadian laws, and second, what the applicable punishment would be for the offense in the Canadian laws. As such, it usually matters little whether a person was convicted of a DUI, DWI, OVI or other such alcohol-related offense. Provided that they did not include any aggravating circumstances, these offenses will usually lead to the same Canadian equivalent, and potentially prevent entry to Canada.
In the state of New York for example, an initial charge for Driving While Intoxicated (DWI), can sometimes be reduced to Driving While Ability Impaired (DWAI), an offense which carries a lesser punishment, and which is not even considered a misdemeanor, but rather a traffic infraction. Again, to determine if a person can enter Canada, it is the corresponding offense, and its applicable punishment, in the relevant Canadian law, which must be examined. Despite being viewed as a traffic infraction in the state of New York, the wording used to describe a DWAI offense in the Consolidated Laws of New York leads it to correspond to a Canadian equivalent which would potentially prevent a person from being able to enter Canada.
If an arrest for DUI involved some sort of aggravating circumstances, such as having children in the vehicle at the moment of the arrest, or causing bodily harm, or even death, as a result of driving under the influence, the charge will usually be classified as a felony. However, if a person is arrested for a standard DUI, bearing no aggravating facts whatsoever, the offense is usually considered a misdemeanor. It is sometimes believed that a misdemeanor is not cause enough to prevent entry to Canada. However, this is not the case, as it is the existence of a corresponding offense in Canadian law, and its applicable punishment, which will determine whether a person is inadmissible or not. A DUI, regardless of whether it is a misdemeanor or not, can potentially block entry to Canada.
In the state of California, a charge for driving under the influence can sometimes be reduced to what is known as a Wet Reckless. Simply put, a Wet Reckless is a conviction for reckless driving with specific mention of whether alcohol and/or drugs were involved in the events, which led to the initial charge of DUI. Since, technically speaking, this means that there is no conviction for a DUI, some believe that it should not prevent a person from going to Canada. Unfortunately, it would be incorrect to assume this. As stated before, the key to assessing inadmissibility is determining whether there is an appropriate corresponding offense in Canadian law, and what the applicable punishment would be. As it so happens, there exists an offense in Canadian law similar to California’s (or most other states for that matter) reckless driving offense, and its punishment is similar to that detailed for an alcohol-related driving offense. Therefore, even if a DUI has been reduced to a conviction for reckless driving, this can still cause problems when going to Canada. A temporary or permanent, if applicable, solution should therefore be sought.
It can be frustrating to learn that a single DUI can be cause enough to prevent a person from travelling to Canada, in which case the proper authorization first has to be obtained. People sometimes believe that this is a result of the Canadian government singling out DUI offenders. However, it is not really a matter of the focus having been cast on DUI offenses. Rather, DUI offenses are only one among others in a vast net designed to cover a considerable number of offenses for the purpose of applying the Canadian laws governing inadmissibility.
Division 4 of Canada’s Immigration and Refugee Protection Act deals with inadmissibility and covers the following points: Security Human or international rights violations, Serious criminality Criminality Organized criminality, Health grounds, Financial reasons, Misrepresentation and Non-compliance with the Immigration and Refugee Protection Act.
Of the above, the point relevant to the current question is that of Criminality. Inadmissibility applies in the case where a person is convicted of an offense outside of Canada, which if committed in Canada, would be seen as an indictable offense. Therefore, when a conviction occurs outside of Canada, in the United States for example, the first step is to determine if this same charge would be seen in Canada as an offense.
In the case of a DUI, if the same had happened in Canada, it would have resulted in a crime being committed there too, as that is known in Canada as Operation While Impaired. Second, what is the application punishment under Canadian law for such an offense? A person who commits the offense of Operation While Impaired can be found guilty of an indictable offense, or of an offense punishable on summary conviction. The previously mentioned Immigration and Refugee Protection Act specifies that whenever a person can be found guilty of an indictable offense, or of an offense punishable on summary conviction, the offense will always be seen as one punishable by indictment for the purpose of establishing whether a person can enter Canada or not. As such, save for a few exceptions, a DUI conviction will usually prevent a person from going to Canada.
It matters little whether a person intends to enter Canada to visit family, to attend a business meeting, or to offer a live performance show. People will be subject to the same inadmissibility rules and can be denied entry on the basis of a DUI appearing on their record if no special authorization was obtained. The financial consequences can be costly in many circumstances. A performing artist denied entry at the border would have to cancel a scheduled show. A professional athlete would be unable to attend a competition, and could possibly be forced to forfeit. People required to attend an important business meeting could see their employment in jeopardy as a result of being unable to enter Canada because of a DUI on their record.
Companies involved in certain fields of work, and dealing with Canada in one form or another, are aware of the issues that can arise from having an employee charged or convicted of a DUI offense and how this can affect any travels to Canada. This is why, for example, airline companies will often make it a requirement in any job posting for a pilot or a flight attendant that the selected applicant be able to travel to Canada.
Simply put, the sooner the better. While an application for a temporary resident permit can be submitted at a port of entry at the moment of crossing, this should be seen as a last resort, and avoided when possible. As the decision to approve a temporary resident permit application is a discretionary one, it is best to submit an application in advance of an expected travel date. An answer can then usually be received in time to determine if the trip can still occur or not. If approved, a person can then head to the Canadian border knowing that, with the application approved, there will only be the administrative matter of having the permit prepared. On the other hand, bringing an application to the port of entry means that the discretionary aspect remains until a decision is made then and there. This also means that if the application is refused, the person will have to turn around.
If a person has a DUI on record and is considered inadmissible, it matters little whether they go to Canada by land, air or sea. Border officers will apply the same laws regardless of where they are stationed.
When entering Canada by land, the fact remains that inadmissibility will apply regardless of whether a person is driving, sitting in the front passenger seat, or on the backseat. If a border officer decides that a person with a DUI on record cannot be allowed entry, this can cause problems for others in the vehicle in the event that the inadmissible person has no means of returning by herself. This can cause entire trips to be cancelled for more than one.
The Canadian government will consider a person with a DUI on record to be deemed rehabilitated, and therefore allowed to enter Canada once again, under certain very precise conditions. To make it easier to understand, the following are the broad lines of those conditions:
There is only one DUI (with no aggravating circumstances) on record and nothing else. All ordered conditions pertaining to the DUI conviction have been complied with. Ten years have passed since the completion of all ordered conditions, and not since the moment of conviction.
As previously mentioned, those are the broad lines. If a person meets the above conditions, the burden of proof is upon them to prove this. An immigration lawyer should be consulted to confirm if this situation can apply.
It should be noted that, once a person receives a second conviction for an alcohol-related driving offense, such as DUI, the ten years after which a person is deemed to be rehabilitated no longer applies. For such cases, inadmissibility must be addressed either temporarily or permanently if possible.
A dismissed DUI could possibly allow a person to enter Canada. However, such situations are particular and it is best to consult with an immigration lawyer to confirm that nothing else could still cause inadmissibility and that the dismissal can be proven.
Nolle Prosequi is a term used to confirm that a plaintiff (or in DUI cases, the prosecution) chooses not to move forward with the charges against a defendant. When this occurs, the case ends before the court having pronounced a judgment and no conviction occurs. The term Nol Prossed can also sometimes be used. As there is no conviction and the case is no longer pending, such a situation can sometimes be to a person’s advantage. However, those are also particular situations and an immigration lawyer should be consulted in order to confirm whether a person is admissible or not following a DUI which resulted in Nolle Prosequi.
A temporary resident permit, commonly known as a TRP, as the name suggests is a permit of a temporary nature for those who need to enter Canada and are otherwise inadmissible. Obtaining one is based on a discretionary process, similar to a pardon or waiver, issued by the government of Canada. It is not granted to everyone, it is on a case by case basis, and given to those who can demonstrate they have justified reasons. A TRP is a way of temporarily “patching” a problem. It will allow a person to enter Canada for their required purpose. However, once it expires, they will once again become inadmissible. When that occurs, either a new permit will be required or, if applicable, an application for criminal rehabilitation, which if approved, would be a permanent solution.
You may need a temporary resident permit if you are deemed inadmissible on health grounds, security reasons, financial reasons, misrepresentation, and criminal grounds. If you have a conviction or an arrest on record, such as a misdemeanor for DUI, you could potentially be prevented entry to Canada. In that case, you may apply for such a TRP to overcome inadmissibility, and be allowed to travel to Canada. A TRP is generally granted to individuals who have a legitimate need to enter Canada, such as business meetings and family reasons. Applying for a TRP may also be an option if you are not yet eligible for a Criminal Rehabilitation (CR), or have a pending CR application at the Consulate, and have an immediate need for travel to Canada.
The duration of a TRP varies depending on the circumstances presented and is determined on a case-by-case basis. It is generally issued for the length of the visit, but it can be for a longer period of time if the need is demonstrated for what are expected to be reoccurring visits. It can range anywhere from a single day permit to a three year permit, although three year permits are extremely rare and require considerable justification. When you are granted a temporary resident permit for a longer period, you can enter Canada multiple times during the permitted period, provided the permit specifies that exiting Canada will not led it to be invalidated.
As previously mentioned, the decision of approving an application for a temporary resident permit is discretionary in nature and can never be guaranteed. Based on certain criteria, the government will determine whether a situation warrants a TRP. There are many factors, which can be considered, among which, the purpose for entering Canada, the benefit of your presence in Canada, the nature of your disclosed offenses, and whether a person’s presence would represent a security risk to the Canadian population.
An application for a temporary resident permit to enter Canada can be made by filling out the appropriate form and presenting it, along with necessary supporting documentation, either to the Canadian consulate or to a Canadian port of entry. When the application is presented at a port of entry, an answer can be given by an officer directly to the applicant. However, there are risks involved. For example, your entering Canada depends then and there on the decision of the border officer, who may accept or refuse to approve the application. In the latter case, an applicant would then be forced to turn around. This can have devastating consequences, such as missed meetings and family events. Proceeding at a port of entry however means that you can get an answer right away.
Ideally, a TRP application should be submitted to the consulate in order to wait for a decision, if you have the luxury of time. This saves you time and money, as well as any potentially troublesome issues at the border, and the stress from having an application processed directly at a port of entry.
In cases where a temporary resident permit application is refused, case-specific reasons are usually not provided. There is no established appeal process for such refusals either. However, this does not mean that such a decision is final and will never be overturn. Instead, another application can be submitted, provided that it presents new information and/or documents justifying it. However, legal representation should be sought and a strategy should be prepared in order to determine what can be done differently.
If you are not in Canada when your TRP expires, then you are not in violation of immigration laws. However, an expiring TRP usually means that a person becomes inadmissible once again. This means that you will no longer be able to enter Canada and will once again require a new temporary resident permit. Temporary resident permit holders who are unable to leave Canada before their permit expires should apply for an extension of their TRP at least 30 days in advance of the expiration of the permit. If not, this violation can affect your ability to travel to Canada in the future.
A more permanent option, if a person is eligible, is to apply for Criminal Rehabilitation (discussed in details further below). This application, if approved, permanently removes inadmissibility on the basis of the disclosed offenses, and allows you to travel to Canada without the need for a TRP, same as someone who does not have any offenses on record.
If someone is refused entry at the border, it is generally advisable not to try re-enter through another port of entry. Generally, a negative decision will be entered into the Field Operations Support System (FOSS), and another port of entry will not look kindly on a second attempt to enter Canada by circumventing the decision of the first officer. It is in a person’s best interest to resolve the matter by seeking a temporary and/or a permanent solution.
Felonies are usually given particular attention when processing a temporary resident permit application. Yet, if the reason for entering Canada is legitimate, justified, and outweighs any potential risk, an application could still be approved. In other words, felony convictions will not automatically lead to refusals. However, under such circumstances, consulting with an immigration lawyer who specializes in such matters would be advisable.
The Electronic Travel Authorization is a system that implemented during the course of 2016. Foreign nationals planning to travel to Canada, and who are citizens of visa-exempt countries, must now request an eTA prior to travelling when entering by air. Although American citizens represent an exception, in that they are not subject to this requirement, no such exemption applies for permanent residents of the United States. Regardless of whether they are citizens of visa-exempt countries or not, these permanent residents must obtain an eTA to enter Canada by air.
If a foreign national is inadmissible, regardless of the reason, and has been successful in obtaining a temporary resident permit, applying for an eTA is therefore not required.
Criminal Rehabilitation is the permanent solution available to those eligible individuals who need to enter Canada but have a criminal record in the USA or abroad. Whereas a temporary resident permit (TRP) allows a person to enter Canada for a specific period of time, if approved, the criminal rehabilitation application will allow you to enter Canada for as long as you want and as many times as you want (subject to compliance with Canada’s immigration laws), as would any other individual without a criminal record. This will continue to apply as long as no subsequent offenses are committed. As long as you remain a law-abiding citizen, a criminal rehabilitation approval will remain valid.
An application for criminal rehabilitation can be submitted once five (5) years have passed since the completion of each and every last condition of sentencing. A common misconception is that the five year timeline starts from the date of conviction, which is not the case. For example, if you were convicted on January 15th, 2012, the date on which you are eligible to apply for criminal rehabilitation is NOT necessarily January 15th, 2017. Rather, it will be the date when all the conditions of your sentencing were satisfied. For example, if you had to pay a fine, attend a class and were placed on probation for three (3) years, and assuming that you have paid the fine in full and completed classes by January 15th, 2013, the probation having terminated on January 15th, 2015, you will only be eligible to apply for criminal rehabilitation as of January 15th, 2020, five years after the end of the probation and not after the date of the actual sentencing.
Individuals who are not yet eligible to apply for criminal rehabilitation still possess the option of applying for a temporary resident permit (TRP), if the circumstances are justified. This is also true for those who are eligible to apply for criminal rehabilitation but who need to enter Canada in the immediate to near future. As the processing time for a criminal rehabilitation can vary, ranging anywhere between nine and eighteen months, a TRP can be obtained while awaiting the government’s decision regarding your case. Therefore, you can still travel to Canada for work, business, leisure or family reasons with a TRP while your criminal rehabilitation application is being processed and reviewed.
Amongst other important documents, an application for criminal rehabilitation will require you to provide your complete criminal background history including an FBI police certificate, also known as the Identity History Summary, and the state police certificates/background checks from each state where you have lived for a period of at least six (6) months or more since the age of 18 or from any state where an offense was committed. A complete list of each US state and its appropriate link for the request of a police certificate/background check can be found further below in section “State Police certificates”.
The only time when you would NOT need to apply for criminal rehab is when the offense you have committed would have a Canadian equivalent offense punishable only by summary conviction, and you only have one (1) such offense on your record. These can sometimes (depending on the circumstances) include offenses such as public intoxication or disorderly conduct. Any other common offenses, including driving under the influence of alcohol (DUI) or driving while intoxicated (DWI), and which are deemed minor misdemeanors in certain US states, will still render you inadmissible to enter Canada and hence would require that you apply for criminal rehabilitation once the time conditions have been satisfied. More serious felony offenses such as burglary, assault or drug trafficking will also allow an individual to apply for criminal rehabilitation, regardless of how many offenses have been committed in your past.
Deemed rehabilitated is a term used to describe those individuals who have a criminal record and who, by the simple effect of time, have now become admissible to enter Canada. Generally speaking, a period of ten (10) years or more must have passed since the completion of all conditions of the sentence received in order to be considered rehabilitated and only one (1) such offense was committed and appears on your record. If you have more than one offense for which you have been convicted, you will NOT be deemed rehabilitated by the effect of time no matter how much time has passed. This is applicable for offenses, including reckless driving, wet reckless, dui, dwai, dwi, owi, oui, ovi. There are also certain offenses deemed more serious for which the 10 years deemed rehabilitated period does not apply at all.
However, in cases of lesser offenses, in other words those for which the Canadian equivalent is punishable only by summary conviction, such as public intoxication or disorderly conduct, Canada’s immigration laws are such that if you have two (2) or more of such offenses, you will be deemed rehabilitated by the effect of time after five (5) years have passed since the completion of all the conditions of your received sentence.
The Canadian government and its agencies, such as the IRCC (Immigration, Refugees and Citizenship Canada) take matters of criminality and immigration very seriously. An individual will have to clearly and convincingly demonstrate that he or she has been rehabilitated and will not represent any kind of security risk to Canada when visiting. Some of the factors that are taken into consideration when deciding whether an application for criminal rehabilitation will be approved or not include: documented proof that you have complied with all of the imposed conditions of the sentence, such as payment of all fines and penalties, attendance and completion of classes such as drunk driving education classes, victim impact panel (VIP) or MADD seminars as well as proof that you have successfully completed your probation period.
When evaluating whether a candidate should be considered rehabilitated, Canadian authorities will look for additional indications that you have learned from your past’s mistakes and are now a contributing member of society. These may include volunteer work, noteworthy accomplishments, awards or community achievements, college or university classes that were successfully completed or letters of support or recommendation attesting to your good character. Please note that these are only examples and may not apply to your individual case, as everyone possesses their own individual set of merits that can be utilized when applying for criminal rehabilitation. We would invite you to speak with one of our immigration lawyers for further details concerning this issue.
FBI and State Police Certificate links for the criminal rehabilitation application:
Federal Bureau of Investigation: Click here
Alabama (AL): Click here
Alaska (AK): Click here
Arizona (AZ): Click here
Arkansas (AR): Click here
California (CA): Click here
Colorado (CO): Click here
Connecticut (CT): Click here
Delaware (DE): Click here
District of Columbia (DC): Click here
Florida (FL): Click here
Georgia (GA): Click here
Hawaii (HI): Click here
Idaho (ID): Click here
Illinois (IL): Click here
Indiana (IN): Click here
Iowa (IA): Click here
Kansas (KS): Click here
Kentucky (KY): Click here
Louisiana (LA): Click here
Maine (ME): Click here
Maryland (MD): Click here
Massachusetts (MA): (Not fingerprint based) Click here
Michigan (MI): Click here
Minnesota (MN): Click here
Mississippi (MS): Click here
Missouri (MO): Click here
Montana (MT): Click here
Nebraska (NE): Click here
Nevada (NV): Click here
New Hampshire (NH): Click here
New Jersey (NJ): Click here
New Mexico (NM): Click here
New York (NY): Click here
North Carolina (NC): Click here
North Dakota (ND): Click here
Ohio (OH): Click here
Oklahoma (OK): Click here
Oregon (OR): Click here
Pennsylvania (PA): Click here
Rhode Island (RI): Click here
South Carolina (SC): Click here
South Dakota (SD): Click here
Tennessee (TN): (Not fingerprint based) Click here
Texas (TX): Click here
Utah (UT): Click here
Vermont (VT): Click here
Virginia (VA): Click here
Washington (WA): Click here
West Virginia (WV): Click here
Wisconsin (WI): Click here
Wyoming (WY): Click here
DISCLAIMER: The aforementioned is for general information purposes only and should not be viewed as legal advice.