Immigration
Entering Canada with a DUI from the USA
How a foreign DUI conviction can pose a problem, and what your options are.
When attempting to enter Canada with a past driving under the influence (DUI) offence, travellers may have difficulties crossing the border.
This common situation arises due to Canada’s strict laws on DUI. Canada further strengthened these laws in 2018 when marijuana was legalized. The legalization resulted in tougher punishment for DUI offences. The goal was to stop Canadian citizens from driving impaired.
Canada judges past criminal history by converting the foreign crime to the Canadian equivalent.
A DUI conviction, then, will be translated to the Canadian offence. As noted, in 2018, Canada started punishing DUI more severely. As of December 18, 2018, the DUI maximum punishment doubled from 5 years to 10 years in prison. DUI is a hybrid offence in Canada. This means that the government can choose to prosecute it by summary process or by indictment. A summary offence is similar to a misdemeanour in the USA, while an indictable offence is like a felony in the American system.
Canadian immigration law treats hybrid offences as indictable (as opposed to summary). If a person is convicted abroad, in or after December 2018 of DUI, Canada treats them as having committed an indictable offence. In theory, anyone who has committed an indictable offence, which has a maximum penalty of ten years or more (as DUI now does), is inadmissible to Canada forever due to serious criminality. As we mention below, there may be ways around this ban for people entering Canada with a DUI.
When Canadians attempt to enter the United States, their passport is linked to their RCMP criminal record. The connection is similar for those entering Canada from the United States. When entering Canada from the US, you have to show a U.S passport or travel document to an immigration officer. Your American passport has a direct link to an FBI background record. This report can feature recent or past DUIs. Even if the driving under the influence conviction is from many years ago, it can still show on this criminal record and create issues for you when trying to enter Canada.
How do I enter Canada with a DUI?
Here are several options for overcoming inadmissibility that the Canadian government offers to someone with a past DUI:
Temporary Resident Permit (TRP)
If it has been less than five years since the completion of the DUI sentence, you must apply for a Temporary Resident Permit (TRP) in order to enter Canada. The TRP is a temporary waiver of inadmissibility that can allow someone who would typically be inadmissible to Canada to enter the country. If approved, it can be valid for up to three years.
In order to be granted a TRP, you must have a strong reason for coming to Canada. Immigration, Refugees and Citizenship Canada (IRCC) must make sure the applicant is not a threat to Canadian society. Because processing can be subjective, it is important for people to submit a well-prepared and compelling TRP application package.
Criminal Rehabilitation
If it has been more than five years, but less than 10 years since completion of a sentence, you may be eligible to apply for criminal rehabilitation. If the application is approved, the applicant have a clean slate and be eligible to enter Canada. There will no longer be any obstacles relating to the previous conviction: the person will be able to enter and leave Canada provided they do not commit another offence.
If it has been 10 years or more since completion of a DUI sentence, an inadmissible person could be deemed rehabilitated simply as a result of the passage of time. This path would also allow them to Canada. This solution is only possible in cases where someone has a single, non-serious conviction on his or her record. If you have more than one conviction, you must apply for criminal rehabilitation to clear your criminal record to enter Canada without issue.
Legal Opinion Letter
If you are currently facing a charge of DUI with no prior criminal history, you should not be considered inadmissible to Canada. Canadian immigration officers have discretion in these situations, weighing the benefits and risks of allowing entry. Canadian law, not U.S. law, applies when you are attempting to enter Canada. A Legal Opinion Letter from a Canadian immigration lawyer can be helpful in the event you are looking to enter Canada with a pending charge. The lawyer can explain any important facts in the pending case, and explain why you should not be considered inadmissible.
Michael Schwartz
Matt Hendler
