Driving Offenses

If a person has been convicted of a driving offense outside of Canada, including charges of careless driving, DUI causing injury, or evading arrest with a motor vehicle, there is a distinct possibility that it could lead to criminal inadmissibility, meaning the convicted cannot enter Canada unless they go through Criminal Rehabilitation or acquire a Temporary Resident Permit.

In Canada, most driving charges are considered to be either indictable offenses, which are more serious, or hybrid offenses, which means that the charge can proceed as either an indictable or a summary offense.  Even in the driving offense of which person was convicted was a misdemeanour in the region where the charges were laid, if the equivalent offense under the Criminal Code of Canada is considered to be a hybrid or indictable offense, inadmissibility to Canada will be an issue.

A person is automatically criminally inadmissible to Canada in cases where the Canadian equivalent of the offense that a person was convicted of is an indictable offense. When assessing criminal inadmissibility, offenses that are designated as hybrid offenses are also considered to be indictable offenses in Canada, resulting in a hybrid offense conviction that also causes criminal inadmissibility.

There are a number of driving offenses that are designated as indictable or hybrid offenses in Canada, and all of the following convictions could lead an individual to be criminally inadmissible to Canada:

  • Vehicular homicide: defined as dangerous vehicle operation causing death, it is an indictable offense and causes criminal inadmissibility.

  • DUI causing injury: a charge for cases where bodily harm was caused to an individual as a result of driving under the influence of drugs or alcohol. It is an indictable offense and results in criminal inadmissibility.

  • Careless driving: defined as operation of a motor vehicle that causes danger to the public, it is considered to be a hybrid offense in Canada. A careless driving conviction makes an individual criminally inadmissible.

  • Evading arrest with a motor vehicle: defined as a hybrid offense, and a conviction of this offense leads to criminal inadmissibility.

  • Failure to stop at the scene of an accident: it is also defined as a hybrid offense, and would cause a foreign national to be criminally inadmissible to Canada.

Some driving offenses, including operation of a motor vehicle without the consent of the owner, are considered summary offenses in Canada and one conviction for one these offenses would not lead to criminal inadmissibility. If a person has been convicted of two or more summary offenses, he becomes criminally inadmissible and must follow the same procedures to enter Canada as a person who was convicted of an indictable or hybrid offense.

In cases where a person has been convicted of an indictable or hybrid driving offense and is therefore criminally inadmissible to Canada, there are still two main courses of action that could allow entry into Canada.

Criminal Rehabilitation

Criminal Rehabilitation is one method that would resolve criminal inadmissibility and allow a person with a prior conviction of an indictable or hybrid driving offense to enter Canada.  A successful Criminal Rehabilitation application would permanently erase a person’s inadmissibility to Canada so long as another crime was not committed, and it would allow that person to travel freely to Canada.

For a person with a prior conviction to be eligible to apply to permanently resolve his inadmissibility through Criminal Rehabilitation, the individual must meet specific time requirements.  At least 5 years must have passed since the completion of the entire sentence has been completed for the conviction.  It is important to note that a person cannot apply for Criminal Rehabilitation five years after the sentence was handed down. He must apply five years after all aspects of the sentence were completed, including a driver’s license suspension or any other probationary measures.

Depending on the timing of a person’s prior offenses, there is also a possibility of being deemed rehabilitated by the passage of time.  Deemed rehabilitation means that the criminal inadmissibility is resolved and an application for Criminal Rehabilitation is unnecessarily.  If a person was only convicted of one offense, and it is considered to be a “non-serious offense,” ( as are all cases where the maximum prison sentence is less than 10 years) the sentence of inadmissibility could be resolved, provided that enough time has passed since the completion of the sentence. If more than 10 years have passed since, the sentence is completed, the individual is deemed rehabilitated, he is no longer inadmissible, and does not need to apply for any permits to enter Canada.

In cases where the maximum prison sentence for the offense the person was convicted of is more than ten years, as with most offenses that cause bodily injury, the person can never be deemed rehabilitated because these crimes are considered “serious offenses.”  Deemed rehabilitation also does not apply to individuals who were convicted of more than one crime.  Although being deemed rehabilitated should allow a person to travel to Canada freely, FWCanada recommends presenting a legal opinion letter to the immigration officials at the border at the time of entry to Canada to confirm the admissibility.

Temporary Resident Permit (TRP)

Individuals who do not yet qualify for Criminal Rehabilitation, all cases where less than five years have passed since the completion of the sentence, have the option of applying for a Temporary Resident Permit (TRP), which would allow their entry into Canada. Unlike a Criminal Rehabilitation application, a TRP will not permanently resolve a person’s inadmissibility, but will allow the person to enter Canada during the period for which their TRP is valid.

If less than five years have passed since the completion of the entirety of the sentence for a driving conviction, then a TRP is the best option to gain entry into Canada if a person is inadmissible.  In order for a TRP application to be approved, there must be a valid reason for the criminally inadmissible person to enter Canada for the set period of time.  The applicant must demonstrate a need to enter Canada, and generally, the reasons provided on a TRP application focus on family commitments, work requirements, or emergency situations.

TRPs are also often applied in conjunction with a Criminal Rehabilitation application, because a TRP will allow a person to enter Canada in the short term while they are waiting for their Criminal Rehabilitation application to be processed.  Until a person’s criminal inadmissibility is resolved through a Criminal Rehabilitation application or through deemed rehabilitation by the passage of  time, a TRP will always be required to enter Canada.

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