Are you an American citizen who has been charged, tried, and convicted of a DUI? Do you have interests in travelling outside of the USA to your northern neighbor: Canada? Find out whether or not you can Enter Canada if you have been convicted of a DUI.
Can an American with a DUI record get into Canada? The short answer is no. Some Americans visiting Canada will be denied entry because of what many would consider a minor record for a drinking and driving offence ‒ known as a “DUI” (“Driving Under the Influence”) offence in the U.S. In Canada, alcohol-related driving convictions are considered criminal offences that are serious enough to make a person “inadmissible” to Canada because of “criminality.” [1] Nevertheless, legal entry into Canada for an American with a record of conviction for drinking and driving may be possible in some circumstances. There are exceptions to the general rules of inadmissibility due to criminality.
Canadian and American border officials have access to each other’s criminal records data bases, so the Canadian official can see if you have either an American or a Canadian drinking and driving conviction. Of course, everyone knows Americans who have crossed the border into Canada despite having a drinking and driving record and were not turned back. Canada Border Services Agency (CBSA) officials have some discretion and generally speaking, if a person’s drinking and driving record is very old they may well let the person in.
If the offence is old enough, the visitor may not even be inadmissible. If you are an American with a DUI record and don’t want to take the chance that you’ll be turned back at the Canadian border, there are some options available. But you have to understand that none of these options guarantees that you will get into Canada. Depending on the classification of your crime (including crimes other than DUIs), where and how long ago it occurred and what you have been doing since, you may be able to get into Canada using one of the four following options:
1) you can prove to a Canadian border official that you meet the criteria to be deemed rehabilitated;
2) you applied for rehabilitation (and were approved);
3) you have obtained a Temporary Resident Permit; or
4) you were granted a record suspension (what used to be called a pardon) for a Canadian offence or a pardon issued in another country and recognized by Canada.
Reference:
[1] Immigration Refugee Protection Act, S.C. 2001, c.27, s. 36(2) [hereinafter IRPA].
Deemed Rehabilitation
If you are “deemed rehabilitated” your record may no longer make you criminally inadmissible. The idea is that you can be seen as rehabilitated and that you now lead a respectable life and are unlikely to break the law again. The factors that the CBSA official considers when deciding whether or not you may be deemed to be rehabilitated are: the crime itself; if enough time has passed; and, if you had committed more than one crime.
To be deemed rehabilitated at least 10 years must have passed from the time you committed the offence and if convicted of an offence, at least 10 years from the end of your sentence. If the crime which you committed is a crime that, if it were committed in Canada, would be an indictable offence (the more serious type of offence under Canadian criminal law), you could only be deemed rehabilitated if the equivalent Canadian indictable offence were the sort of offence that would carry a maximum prison term of less than 10 years.
But, if you were convicted of an offence or you committed an offence outside Canada that, if committed in Canada, would be punishable by a maximum term of imprisonment of ten years or more, then you are not eligible to be deemed rehabilitated, no matter how long ago it happened. If you were convicted of two or more offences that, if committed in Canada, would be classed as summary conviction offences (the less serious type of offences under Canadian criminal law), you are deemed rehabilitated if at least five years have passed from the end of your sentence.
Although many of the drinking and driving offences under Canadian law are hybrid offences, which means that they may be treated as either indictable or summary offences depending on how the prosecutor chooses to deal with them, for the purposes of you crossing the border, a hybrid offence is always deemed to be an indictable offence ‒ even if it was prosecuted as a summary offence.[2]
Reference:
[2] IRPA s. 36(3)(a)
Applying for Rehabilitation
You are eligible to apply to the Canadian authorities for criminal rehabilitation if you committed a criminal act outside of Canada and at least five years have elapsed since the act or you have been convicted and at least five years have passed since the end of the sentence that you got for the crime. You have to fill out an application form called the Application for Criminal Rehabilitation (IMM 1444) form, supply certain documents and pay a fee. If it’s been fewer than five years, you may be able to get special permission to come to Canada temporarily by filling out that form and checking off: “For Information Only.” You make this application to a Canadian visa office. The particular visa office you deal with may have its own special requirements (which should described be on that office’s website).
To apply, you must:
meet the criteria (i.e., it’s been long enough since you committed the offence or it’s been long enough since you were convicted, plus they look at how long a prison sentence the equivalent offence would get you in Canada);
have been rehabilitated; and,
be highly unlikely to commit any more crimes.
At least five years must have passed since the end of your criminal sentence and the day you committed the crime. And, this five year period doesn’t start until the end of any period of probation. Criminal rehabilitation applications can take over a year to process so if you need to get into Canada more quickly, you can make an application for a Temporary Resident Permit ‒ see below ‒ at the same time as you are applying for rehabilitation. (But, sometimes, a Temporary Resident Permit can also take a long time to process.)
Temporary Resident Permit
The Temporary Resident Permit (TRP) option is the one you would consider if it has been fewer than five years since the end of your sentence or you have valid reasons to be in Canada temporarily. You can apply for a TRP at the border or before you travel. If you apply at the border you have to remember that because the decision of whether or not to admit you is at the discretion of the CBSA official assessing your application, you risk travelling to the border but being turned away. If you apply in advance, you may be asked to attend an interview. There is a $200 (Canadian dollars) fee for the application and the fee will not be refunded if you are refused.
But, you may be able to get a one-time temporary resident permit without paying the $200 fee ‒ more about that below. To be eligible for a TRP you have to show that your need to enter or stay in Canada outweighs the health or safety risks to Canadian society. You also have to prove that your visit is justified. A permit is usually issued for however long your visit to Canada will be ‒ for example, one week to attend a trade fair ‒ but can be issued for any length of time up to three years.
And, unless you have a TRP that specifically allows you to leave and re-enter Canada, it won’t be valid anymore once you leave Canada. You have to leave Canada by the expiry date of the permit, or get an extension, or depending on the circumstances, get a new permit, before your current one expires.
You might have to get a new permit instead of an extension if:
you applied for extension after expiry of the previous permit and have not satisfied an officer of compelling reasons for the delay;
you are inadmissible for a new reason (like you have committed another crime);
you left Canada, are returning to Canada and re-entry was not previously authorized. Authorization to re-enter should be marked on your TPR; or,
you left Canada, are returning to Canada and re-entry was authorized, but the validity date has expired.
If you do get a TRP it still may be cancelled by a Canadian official at any time.
TRP With Waiver of the $200 Fee
As was mentioned earlier, you may be able to get a one-time TRP without paying the $200 fee. There is a (relatively) new policy that applies to persons convicted of certain offences, including drinking and driving offences. Under this policy you may be able to get a TRP for one visit without having to pay the $200 fee if: you have served no jail time and have committed no other acts that would prevent you from entering Canada.
You still have to meet the criteria for eligibility for a TRP and all the same rules apply as with a regular TRP. If you qualify for this fee waiver, you can only use it once and you will need go through the regular process of applying and paying for a TRP for all your other visits to Canada.
Record Suspension (Formerly Known as a Pardon)
If you were convicted of a crime in Canada, you may eventually be eligible to apply for a record suspension (formerly known as a pardon) and if you get it, you will no longer be inadmissible. The application is made through the Parole Board of Canada. If you are granted a record suspension, the record of your conviction will be taken out of the Canadian criminal records database (which is known as CPIC). The record suspension applies only to records kept within federal agencies.
But, many provincial and municipal law enforcement agencies will restrict access to their records once they are notified that a record suspension has been ordered. However, a record suspension does not completely erase your record and has limitations:
A record suspension does not erase the fact that you were convicted of an offence.
A record suspension does not guarantee entry or visa privileges to another country.
Courts and most police services do not have to keep records of convictions separate from other criminal records.
If you were pardoned for certain sexual offences, your record will be kept separate and apart from other criminal records, but your name will be flagged in the criminal records data base computer. This means that you will be asked to let employers see your record if you want to work with children or with groups that are vulnerable because of their age or disability.
Your sentence may have included certain prohibition orders imposed under Canadian criminal law, eg., a driving prohibition order for a drinking and driving offence. A record suspension will not cancel these prohibition orders.[3]
For eligible offences the waiting period before you can apply is, depending on the type of offence, either five or 10 years after the completion of your sentence. The five year waiting period is for a summary offence. The 10 year waiting period is for an indictable offence.
Drinking and driving offences in Canada can be either summary or indictable offences. (Chances are that your Canadian drinking and driving conviction was treated as a summary offence, but you’ll have to check.) If your application is accepted, the Parole Board will process it within six months if it was for a summary offence and 12 months if it was for an indictable offence. (If you have been convicted of certain offences, you will not be eligible at all for a record suspension no matter how much time has passed since the end of your sentence.)
You can lose your record suspension if you are convicted again, or if it is discovered that you misrepresented something on your application and should not have received the record suspension in the first place. Other countries may have similar programs so if you have a criminal record in another country, check with the Canadian visa office that serves that country to find out if those record suspensions, pardons or discharges would be recognized in Canada.
In Summary
If you are an American with a DUI record you would be considered inadmissible into Canada. The options explained above provide ways that you may be able to enter Canada legally. Which option you choose will have a lot to do with how long it’s been since your DUI. For very old DUIs (more than 10 years old) you will likely be eligible to be deemed rehabilitated and therefore no longer inadmissible.
For very recent DUIs (less than five years old) you will probably need to consider the TRP or getting special permission under the application for rehabilitation process. If it’s been between five and 10 years, the application for rehabilitation option is the one you would look at if you can afford to wait a year for the application to be processed. If you don’t have time to wait for the rehabilitation application to go through, then consider still applying for it, but at the same time applying for a TRP. If you got a drinking and driving conviction in Canada, then you will need a Canadian record suspension.
