Despite meeting eligibility requirements, foreign individuals from any country may still be criminally inadmissible to Canada due to previous criminal conduct, or the criminal conduct of their dependents. In particular, if you are convicted of a DUI, entering Canada may be made more difficult.
Drunk driving charges are processed under a variety of names worldwide, but they all equally have the potential to create issues of criminal inadmissibility for foreigners entering Canada. Drunk driving charges that can make an individual criminally inadmissible include, but are not limited to, Driving Under the Influence (DUI), Driving While Intoxicated (DWI), Driving While Impaired (DWI), Operating While Intoxicated (OWI), Operating a Motor Vehicle While Intoxicated (OMVI), and Driving While Ability Impaired (DWAI).
Americans should note that Canadian immigration law does not use the misdemeanour and felony offence system. Instead, there are summary offences (quite minor), indictment offences (more serious), and hybrid offence, which means that the violation can go either way depending on context. Therefore, determining if your offence outside of Canada makes you criminally inadmissible, you need to convert the same charge into the Canadian system and see whether it was a summary, hybrid or indictment offence.
Criminal inadmissibility can be overcome permanently by Criminal Rehabilitation or temporarily by obtaining a Temporary Resident Permit.
In order to be eligible to apply for Criminal Rehabilitation, a period of 5 years must have elapsed since the completion of the entire sentence imposed for the DUI. The same goes for serious indictment offences, such as those that cause bodily harm or used a weapon for example, as they are unable to be deemed rehabilitated and require criminal rehabilitation.
TRPs are granted to allow individuals, who would otherwise be inadmissible, to gain admission to Canada for a specific purpose. The specific purpose of the visit must be properly explained in any application for a TRP. For more information on Temporary Resident Permits, click here.
A DUI conviction can create complications in regards to temporary or permanent entry to Canada, however there remain a number of ways to overcome such issues. For more information on what Immigration program, or what application, you should be using to enter Canada, fill out this Assessment Form here.
Traffic Violations and Inadmissibility
DUIs and their Canadian Law Equivalents
Citizens of the United States may be deemed inadmissible to Canada due to a previous criminal conviction. Even offences that are minor in some states, such as Driving Under the Influence (DUI), may cause a traveller to be denied entry to Canada upon arriving at the Canadian border. This can often lead to confusion as to whether a traffic violation may cause criminal inadmissibility. Luckily, while violations such as driving without a license or running through a red light result in traffic fines, even if high, they are not necessarily grounds for arrest. Such traffic violations are considered to be infractions, and are treated as being either major or minor. While driving with defective brakes or failing to signal are examples of minor infractions, major infractions apply to insurance offences, or speeding within high-risk areas such as construction zones. Understanding how a traffic violation (or any criminal offence) committed in the United States would be treated under Canadian law is essential in determining an individual’s admissibility status, and how to proceed in maximizing their chances at entering Canada without hindrance.
What kind of traffic violations can result in inadmissibility to Canada?
The three traffic violations that will deem an individual criminally inadmissible to Canada are vehicular homicide, hit and runs, and DUIs. These are the Canadian law equivalents of charges from the United States that may be referred to in a given state as motor manslaughter, racing, careless/dangerous driving, stunting/drag racing, criminal negligence, speeding over the state’s set limit, driving while under suspension, failing to obey police, failing to remain at an accident scene or refusing a breathalyzer test. For instance, a charge given in the US for failing to obey the police has the same severity as a DUI when converted to Canadian Law. As of December 2018, DUIs are considered serious criminality in Canada, and such convictions will always be flagged at a Canadian port of entry.
Canadian immigration agents can access an individual’s criminal record through a simple passport scan: therefore, should an individual arrive at the border only to have a DUI appear on their record, they may be refused entry to the country. Flagged traffic charges that hinder Canadian admissibility are generally ones that essentially threatened the safety of people and property through reckless behaviour or an intention to cause harm.
What to do in the situation of a traffic violation that will lead to inadmissibility
When an individual has an offence on their record that will deem them inadmissible, they must apply for permission to enter Canada either through a Temporary Resident Permit (TRP) or through Criminal Rehabilitation. A TRP allows a criminally inadmissible individual to enter Canada for a specific reason (ideally work-related) and for a period of time determined by Canadian immigration officials (being a maximum of 3 years). Successful TRP applications highlight the applicant’s presence in Canada as being beneficial to the Canadian economy, or are based on humanitarian and compassionate grounds. Compelling reasons to temporarily overcome inadmissibility include travelling to Canada to consult or meet with Canadian clientele, to attend business conferences, or due to the death of a close family member. Criminal Rehabilitation is a means for an individual to enter Canada, if more than five years have elapsed since the completion of all sentencing. In the case of traffic violations tied to inadmissibility, the nature of a given offence is largely taken into consideration by border agents; thus, the applicant must pay special attention to their application in proving that they pose zero threat to Canadian law and society, and by outlining the steps they have taken towards rehabilitating themselves accordingly.
Misdemeanor vs. Felony
Serious charges in the United States fall under either felonies or misdemeanors. Misdemeanors include less serious offences such as driving under the influence, or driving without a valid driver’s license. These offences usually result in a fine or imprisonment of under a year. Depending on the nature of the misdemeanor charge, the offence would likely equate to a DUI conviction under Canadian Law.
Felonies encompass the most serious offences in the United States. Traffic felonies include vehicular homicide, most hit and runs, and multiple DUI convictions, or DUI convictions resulting in bodily harm. Felonies can result in a life sentence, and are equivalent to the most serious charges under Canadian Law. Therefore, applications for TRP and Criminal Rehabilitation can be more challenging.
If you wish to enter Canada with one or more traffic violation(s) on your criminal record, or if you are unsure in determining the Canadian law equivalency of your offence, it is highly advised that you speak with a Canadian immigration lawyer. It is important to remember that the severity of an offence under United States law is irrelevant: only its Canadian equivalent is important in determining admissibility or in crossing the border. Therefore, a qualified Canadian immigration expert may guide you throughout your application, help you understand your current status, and advise you towards which next steps to take in order to successfully enter Canada.
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.