Avoid Being Denied Entry into Canada – DUI
If you are a U.S. citizen or permanent resident, entering Canada is usually a relatively simple process: show the officer your passport and travel documents, go through customs, and then be on your way. Quite often travelers from the U.S. will not even receive a stamp on their passports. Once you are admitted to Canada you have a valid Temporary Resident Visa (tourist visa) for 6 months, unless indicated otherwise.
When going through customs, you may be asked some general questions about your plans or business while in Canada. In some cases, you may be sent to a second area for further questioning and screening of your background. It may seem alarming or stressful if this happens to you, but it is important to remember that random background checks are part of the process for Border Services Officers (BSO). It is possible that the officer may inquire if you have a criminal background. Many travelers to Canada are unsure if a Driving Under the Influence (DUI) type charge qualifies as criminal history.
Denial of Entry Due to a Criminal Record – DUI
When asked about a criminal record by a Border Services Officer, it is best to disclose any information requested. Travelers to Canada are often shocked to learn that a misdemeanor charge like a DUI is considered grounds for refusal of entry. Unfortunately, even minor charges can qualify as criminal inadmissibility to Canada. People have even been turned away at a Canadian border or port of entry for having reduced charges such as Wet Reckless on record. Even arrests that resulted in non-convictions or deferred sentencing can create problems. Another mistake that travelers with a DUI or other misdemeanor charge on record often make is assuming that charges from years ago are no longer relevant. Time passed does play a factor in certain situations, but it still doesn’t change the fact that Border Service Officers can see the charge or conviction on your record.
Even if you don’t have a serious criminality on record, you run the risk of being denied entry into Canada for having misdemeanor type charges like DUI. Remember that your criminal record is being assessed under Canadian law. The way criminal charges are interpreted in Canada sometimes differs from U.S. charges or international charges. In the Canadian Criminal Code, a Driving Under the Influence type most often falls under section 253, Operation While Impaired. According to the Canadian Criminal Code, anyone who commits an Operation While Impaired offence may receive an Indictable Conviction or a Summary Conviction. Roughly translated to the U.S. legal system, an Indictable Conviction is similar to a Felony, while a Summary Conviction is similar to a Misdemeanor.
Therefore, if you have a DUI which is considered a misdemeanor in the U.S., it could potentially be treated as a felony level offense in Canada. This is stated in Section 36(3)(a) of the Immigration and Refugee Protection Act: “an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily.” Basically, your DUI misdemeanor charge under the U.S. system can still be interpreted as a felony level charge under the Canadian system. This is why you need to be able to provide evidence to the Border Services Officer of your sentencing and that you have completed the conditions of your sentencing.
Does the Type of DUI Charge on my Record Matter?
Canadian Driving Under the Influence charges are dictated by the Canadian Criminal Code, which is a federal government document. That means that a DUI in Canada is treated the same way in all parts of the country. On the other hand, U.S. DUI charges are regulated by the State in which they occurred. Some of the charges given for a DUI type charge in different U.S. States include:
OUI (Operating Under the Influence)
OWI (Operating While Intoxicated)
OMVI (Operating a Motor Vehicle While Intoxicated)
DUIL (Driving Under the Influence of Liquor)
DWI (Driving While Intoxicated)
Every State not only uses different wording to describe charges, but often the harshness of the penalties varies from State to State as well. The conditions that qualify one for being charged differ as well. Despite these differences, at the end of the day most of these misdemeanor type charges will still be equivalent to the Operation While Impaired offence under the Canadian Criminal Code, which could ultimately result in a denial of entry to Canada due to criminal inadmissibility.
Many U.S. States also have reduced charges that can be plead down to for first time DUI offenders. Some of these reduced charges include Dangerous Driving, Reckless Driving, and Wet Reckless. Charges such as these are sometimes covered by Canada’s Highway Traffic Act. For example, Reckless Driving can be equivalent to Careless Driving, which is regulated by the Highway Traffic Act. In the case of Reckless Driving, you may not be criminally inadmissible to Canada because Reckless Driving is not equivalent to a criminal offence.
What if I don’t Report my DUI to the Officer?
Actually, this happens more often than you might think. Sometimes travelers to Canada are not aware that a DUI charge from their past qualifies as a criminal offence. There have been many accounts of U.S. travelers that have been visiting Canada for years without any issues, only to be stopped on their latest visit by a Border Services Officer and questioned about a DUI on their record. The fact is, you may not be asked any questions or screened when visiting Canada.
The important thing to remember is, if a Border Services Officer does end up asking you about your criminal history, you should disclose that information immediately. Being evasive or trying to cover up information will only escalate the situation and will most likely result in being refused entry at the border. If an officer catches you in a lie, this can result in a ban from entering Canada for up to 5 years. It is totally up to the discretion of the officer.
How does a Border Services Officer know if I have a Criminal Record?
Until recently, a Border Services Officer (BSO) would only be likely to find out about your criminal record if you were sent to second screening. That all changed recently with the introduction of CPIC database access at main border / port of entry checkpoints. CPIC stands for Canadian Police Information Centre. This is a database which contains police records from U.S. national, state, and even county levels in some cases. Now when you arrive in Canada the Border Services Officer at the main checkpoint can pull up this database and cross reference it with your passport. If you have a DUI on record, it is highly likely to show up here in some form. That is why when an officer asks you if you have a criminal record, it is probable that he or she has already red flagged you and is simply checking for confirmation.
So how do get into Canada with a DUI?
In order to avoid denied entry into Canada, you will need to prepare an application for “special permission” to enter Canada. There are two options that travelers to Canada with a DUI or other misdemeanor charge on record often pursue: Temporary Resident Permit (TRP) or Criminal Rehabilitation.
Temporary Resident Permit (TRP)
A Temporary Resident Permit is a document which allows you to access Canada for a specified period of time, even if you have a criminal inadmissibility on record. While a TRP will not make your inadmissibility go away, it will allow you to travel into the country without too much hassle. A Temporary Resident Permit can be valid for up to 3 years, but this is entirely up to the discretion of the issuing immigration officer.
The main thing to remember with a Temporary Resident Permit is that it is really a short term solution. If you wish to travel to Canada without restrictions indefinitely, you will need to apply for Criminal Rehabilitation.
Criminal Rehabilitation differs from a TRP in some fundamental ways. It takes much longer to process a Criminal Rehabilitation application (up to 1 year) and it has to be submitted to a Canadian Consulate. Also, a minimum of 5 years must have passed since you completed the sentencing from your most recent offense. However, it is worth the wait. If you are approved for Criminal Rehabilitation, you will no longer require special permission to visit Canada and no longer run the risk of denial of entry.
Is it Easy to Apply for TRP or Criminal Rehabilitation Application?
Applying for a Temporary Resident Permit or Criminal Rehabilitation is not a straightforward task. Immigration officers do not grant these things lightly and are careful to ensure that immigration regulations are being followed. If your application is incomplete or the officer believes you are not reformed or are likely to be a danger to Canadian society, it is likely to be refused. A successful application has all the necessary documentation and is organized in such a way to be most effective.
If you are worried about being denied entry to Canada from a DUI or other misdemeanor type charge on your record, contact our team of Canadian immigration lawyers and consultants today. We can help you put together a professional application and advise you every step of the way.
with Akrami and Associates there is always a way!!