Can you go to canada if you had a dui

Bill-C46 upped the maximum charge for DUI (Driving under the influence – same as DWI ) in Canada to a 10-year prison sentence. This meant that a DUI charge was also upgraded to become a major offence or “serious criminality” for legal purposes. It’s the upgrading of a DUI to be considered “serious criminality” that changed crossing with a DUI going forward.

Border Crossing with A DUI

Prior to December 18th,2018 a foreign DUI charge was a considered a minor offence as the Canadian criminal charge was a maximum of 5 years in prison. Border officials would allow visitors from the US and other countries to enter provided that ten years had passed since they completed their sentencing requirements for their DUI charges. So basically, after any fines or time served were completed, waiting a further 10 years would give a person without other charges a very good chance of being “deemed rehabilitated”. Deemed rehabilitation would allow people with old DUI’s to enter Canada.

When the maximum charge for a DUI in Canada was increased to 10 years in prison, “deemed rehabilitation” no longer applied as the previously minor offence was now a major offence.

DUI Entry Rules Changes Affected Millions

The scope of the problem was enormous. Tens of millions of Americans and people from around the world became inadmissible over night. Truck drivers, airline pilots, visitors of all kinds, would be potentially inadmissible. The effect of the changes would also cause problems for people immigrating or seeking refugee status in Canada. From what we have been able to learn, the Canada Border Services Agency (CBSA) did not immediately enforce the rule changes. Potentially millions of visitors would have had to pay to apply for rehabilitation and then wait up to a year to gain entry to Canada.

DUI Entry Rule Changes in 2019

Early in 2019 Canada’s Immigration Minister’s made a statement in the media, “anyone deemed rehabilitated for an impaired driving offence outside Canada before December 18, 2018…” “…would not need to reapply for relief to overcome inadmissibility due to that same offence.”
Deemed rehabilitation was grandfathered in for any foreign national convicted of a DUI prior to December 18, 2018. It should be noted that this is simply a policy and not a legal change. Policies are subject to change as the administration deems fit. This means a change in government could potentially mean a change in this policy.

How Long Do You Have to Wait to Go to Canada After A DUI?

Right now, with no other criminal charges, the waiting period for anyone with a DUI conviction prior to December 18th, 2018 is 5 years with an application and 10 years without a formal application. The waiting period begins after their full sentencing requirements are completed. Any additional criminal charges will require the application for “criminal rehabilitation” be made.

Automatic eligibility for entry to Canada with an old DUI requires a waiting period of 10 years after sentencing requirements are completed. This has been grandfathered for convictions prior to December 18th, 2018.

Questions?

Everyone’s situation is unique and it’s always a good idea to ask questions to get the correct answers. For a free consultation simply give Mitch a call T (204) 488-6350 or 1-800-438-7020. Alternatively, you may complete the contact form on this page.

In most cases, a conviction for driving under the influence of alcohol or drugs (DUI) will render an individual inadmissible to Canada.

Whether coming to work on a multi-year contract or just visiting for a day, it is essential that you resolve all criminal inadmissibility issues before traveling to Canada.

Fortunately, the Canadian government provides several options to allow you to overcome criminal inadmissibility. Cohen Immigration Law can help you identify the best option.

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Table of Contents

• Canada DUI Law as it Relates to Immigration
• Types and Number of Offences
• Possible Solutions for Canada DUI Entry
• Can you Enter Canada 10 Years after your DUI Conviction?
• Frequently Asked Questions
  
• About Cohen Immigration Law

Canada DUI Law as it Relates to Immigration

Under Canadian immigration law, any citation relating to the operation of a motor vehicle while under the influence of alcohol can render someone criminally inadmissible to Canada. The best way to address inadmissibility to Canada varies depending on a number of factors, including:

• The number and type of offence(s);

• When the sentencing for the offence(s) was completed; and

• The severity of the offence(s).

Types and Number of Offences

Drunk driving charges are prosecuted under a variety of designations around the world. Examples of charges that can result from driving while impaired include:

• Driving Under the Influence (DUI)

• Driving While Impaired (DWI)

• Driving While Ability Impaired (DWAI)

• Operating While Intoxicated (OWI)

• Operating a Motor Vehicle While Intoxicated (OMVI)

• Wet Reckless

• Boating Under the Influence (BUI)

Canada will examine your criminal record, which can include arrests, warrants, pending charges, and convictions. However, what matters most is not your crime(s) per se but rather how Canada understands it to translate into Canadian law.

They pay more attention to the equivalent crime in Canada. For example, an American citizen convicted of a misdemeanor-level drunk driving offence may still find themselves criminally inadmissible to Canada due to its equivalent in Canadian law.

Having more than one driving under the influence charge can significantly impact your ability to gain temporary access into Canada. Those who possess multiple charges or convictions can be deemed a higher risk for reoffending upon entry and be subject to higher scrutiny from a Canadian immigration officer.

Possible Solutions for Canada DUI Entry

There are actually four different methods of entering Canada with a past DUI conviction.

• Temporary Resident Permit (Consulate): This permit allows an individual to become temporarily admissible to Canada. Individuals whose most recent offence occurred less than five years ago may be eligible for a TRP. Requests for a TRP are processed at Canadian Visa Offices.

• Temporary Resident Permit (Port of Entry): In certain urgent circumstances, a TRP can be issued at a Canadian port of entry, which can be any place staffed by a Canadian immigration officer or border agent.

• Criminal Rehabilitation: This process allows an individual to permanently resolve their inadmissibility issue. Individuals who completed sentencing more than five years ago may be eligible for Permanent Rehabilitation.

• Deemed Rehabilitation: If an individual received a single DUI conviction (prior to 2018), and more than 10 years have passed from the completion of his or her sentencing, he or she may be eligible to enter Canada without needing to go through the rehabilitation process.

Temporary Resident Permit (TRP)

Under Five Years Since Completion of DUI Sentence

If it has been less than five years since the completion of the DUI sentence, the individual must apply for a Temporary Resident Permit (TRP) in order to enter Canada legally. The TRP is a temporary waiver of inadmissibility (for up to a maximum of three years) that allows an individual who would otherwise be inadmissible to enter Canada to enter the country.

In order to be granted a TRP, the individual must have a reason for coming to Canada, and immigration authorities must not determine the individual is not a threat to Canadian society. Because this determination involves a subjective component, it is important for individuals to submit a well-prepared and compelling TRP application package.

More than Five Years but Less than Ten Years Since Completion of DUI Sentence

If it has been more than five years, but less than 10 years, since completion of a sentence, an individual may be eligible to apply for criminal rehabilitation after the five-year benchmark has been reached.

If the application is approved, he or she will have a clean slate and be eligible to enter Canada. There will no longer be any hindrances relating to the previous conviction(s), and the individual will be able to enter and leave Canada provided he or she doesn’t commit another offence, and complies with any applicable visa requirements.

In order to be considered criminally rehabilitated, it must be demonstrated that an inadmissible individual has ‘turned over a new leaf’ since the conviction(s), and is judged unlikely to reoffend. The approval of this application is dependent on the subjective assessment of immigration authorities. For this reason, applicants are well served to prepare an application that conforms to what Canadian authorities are looking for in a rehabilitated individual.

Ten Years or More Since Completion of DUI Sentence

If it has been 10 years or more since completion of a sentence, an inadmissible individual could be deemed rehabilitated simply as a result of the passage of time, and admitted to the country. This solution is only possible in cases where the individual has a single, non-serious conviction on his or her record.

However, it is possible for the individual to experience difficulties even in such a scenario. This potential obstacle is because border authorities have a significant amount of discretion in the exercise of their duties and, as a result, can refuse entry to individuals even though they are no longer inadmissible as a result of deemed rehabilitation.

A legal opinion letter, written by an experienced Canadian immigration attorney, can be helpful in avoiding this unpleasant situation.

Can you Enter Canada 10 Years after your DUI Conviction?

Canada’s driving under the influence (DUI) laws changed in December of 2018. As a result, a DUI is now considered serious criminality.

Under the previous law, any DUI conviction was removed from a visitor’s record 10 years after the completion of their sentence, allowing them to be deemed rehabilitated to enter Canada. However, at this time it is not possible.

If you have received a DUI after December 18, 2018, then you will always need to apply for clearance into Canada prior to entering the country.

The Temporary Resident Permit (TRP) and Criminal Rehabilitation applications offer potential short and long-term solutions for past DUI convictions. Consulting with a Canadian immigration lawyer about which application best suits your current needs is always recommended.

Get a Free Legal Consultation

Frequently Asked Questions

1. Can I apply for a Temporary Resident Permit with a DUI conviction?

If it has been less than 10 years since completion of all sentence requirements (probation, fines, license revocation etc.), then applying for a TRP can be a short-term solution to temporary access into Canada. The TRP can be granted for a duration of stay of up to three years, depending on the reason and frequency of your travel into Canada. A temporary resident permit is only granted for significant reasons of entry and can be processed at either a consulate or Canadian port of entry by land, air or sea.

2. Can I apply for Criminal Rehabilitation with a DUI conviction?

Once it has been at least five years from the completion of all sentence requirements on your DUI, you are eligible to apply for criminal rehabilitation. Criminal Rehabilitation (individual or deemed) is a permanent solution for individuals that are currently inadmissible to Canada.

3. Can I be Deemed Rehabilitated for a past DUI conviction?

Persons that are inadmissible for Canadian immigration or entry on grounds of a DUI may still be permitted to enter Canada if they qualify for Deemed Rehabilitation. However, a deemed rehabilitation is not applicable to any individual with a DUI conviction that occurred after November of 2018. This impossibility is due to changes in Canadian law in late 2018 which stiffened penalties for impaired driving.

You may qualify to be deemed rehabilitated if you have been convicted outside Canada of an act such as DUI, that if committed in Canada, would be equivalent to an indictable offence punishable by a sentence of less than ten years, and if you meet the following requirements:

• Ten years have elapsed since the completion of your sentence;

• You have not been convicted of any indictable offence or summary offence in Canada in the last ten years, or more than one summary conviction in the ten years before that; and

• You have not been convicted outside Canada of an offence in the last ten years that, if committed in Canada, would constitute an indictable offence, or of more than one summary conviction in the ten years before that.

Learn more about Deemed Rehabilitation.

4. What types of impaired driving offences can affect entry to Canada?

Individuals who have been arrested or convicted for driving under the influence (DUI) may be considered criminally inadmissible to Canada. Depending on the dates of arrest and completion of sentencing, you may need to submit a Temporary Resident Permit (TRP) or Criminal Rehabilitation application for access into Canada.

The following U.S. drunk driving offences can impact your ability to enter Canada:

• Driving Under the Influence (DUI)

• Driving While Intoxicated (DWI)

• Driving While Impaired (DWI)

• Driving While Ability Impaired (DWAI)

• Operating While Intoxicated (OWI)

• Operating a Motor Vehicle While Intoxicated (OMVI)

• Wet Reckless

• Boating Under the Influence (BUI)

5. Has your DUI case been expunged or dismissed at the state level?

There are circumstances where a dismissal, conditional discharge, or expungement on an individual's criminal record in the United States can have a positive impact on inadmissibility to Canada. It is important to note that for the purposes of entering Canada, Canadian federal law is in effect and it would be wise to consult with an Immigration Attorney about your situation.

6. Does a conviction for DUI involving a car accident or injury affect my ability to enter Canada?

The answer is yes, especially in cases where a felony is associated with the DUI conviction. Felony DUI charges are often the result of an impaired driver having:

• Prior DUI convictions;

• No proof of insurance;

• A suspended or revoked driver's licence;

• A child in the vehicle with them;

• An extremely high BAC; or

• Being involved in an accident that caused property damage or bodily injury.

Impaired driving is considered serious criminality in Canada, as a result such an offence within Canada can result in as much as ten years in jail.

If you are looking to overcome a past felony DUI in order to enter Canada, a Temporary Resident Permit (TRP) or Criminal Rehabilitation may be the solution you need.

7. How does Canada know about my past conviction for DUI?

When Canadians attempt to enter the United States, their passport is linked to their RCMP criminal record. This linkage is similar for those entering Canada from the United States. Upon entry to Canada, an American is required to present a U.S passport or travel document to an immigration officer for screening purposes. This person’s passport has a direct link to an FBI background record, where recent or past DUIs can appear. Even if the driving under the influence conviction is from several decades ago, it can still appear on this criminal record and be held against your desire to enter.

8. Will a DUI from 20 years ago appear on an FBI background check?

DUI convictions are available on your FBI background record indefinitely. The FBI record, which covers offences from all U.S. states, is the primary source of criminal background information used by Canadian border patrol. Often, a DUI may fall off a DMV record in the U.S. However, this is not the case with a federal background check.

9. Does a conviction for “Wet Reckless” prevent me from entering Canada?

DUI charges can be reduced to a “wet reckless,” but even the latter conviction can also keep you out of Canada. Because a wet reckless (the result of a plea bargain to reduce a charge of drunk driving when the amount of blood alcohol was borderline illegal) is also considered equivalent to the indictable offence of impaired driving in Canada, you may be required to apply for a Temporary Resident Permit or Criminal Rehabilitation.

10. If I do not plan on driving in Canada, does my past DUI remain an issue?

An individual may fly into Canada from an international destination and claim not to require the ability to drive while inside the country. Taxis, ridesharing services, and public transport have become effective methods of transportation, especially in foreign countries.

Unfortunately, these circumstances have no impact on inadmissibility to Canada even with a valid driver's licence. Because a Canadian border agent is unable to guarantee an individual will not drive once they are in Canada, the agent must assume there is a possibility of driving. As a result, the individual can be found criminally inadmissible to Canada with a past DUI or driving while impaired charge.

11. Can I apply for an Electronic Travel Authorization (eTA) with a past DUI conviction?

Individuals requiring an Electronic Travel Authorization (eTA) in order to visit Canada are asked to fill out some personal information and answer a few basic questions relating to any past criminal history. If you submit a request for an eTA with a DUI conviction, you are likely to receive a denial if you have not been considered rehabilitated.

In order to gain access to Canada, you must apply for a Temporary Resident Permit (TRP) or Criminal Rehabilitation. If the TRP has been granted by an immigration officer, your eTA will be automatically included. If you have been granted Criminal Rehabilitation, past criminal history will not affect your ability to enter Canada.

12. Can I enter Canada with a pending charge of DUI?

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 do have the ability to use discretion in these circumstances, weighing the benefits and risks of granting entry. Canadian law, not U.S. law, applies in these circumstances. Often, a Legal Opinion Letter from a Canadian immigration lawyer can be of benefit in the event you are planning on entering Canada with a pending charge.

13. Does my past DUI affect my layover in Canada?

There are individuals who may stop in Canada while flying from one country to a third country. These layovers may be intended, as part of a trip with several stops, or merely necessary, as part of a series of connecting flights. If the person does not leave the terminal’s secured area, there should not be any issue. If, however, the person wants or has to leave the secure area, say, to pick up certain bags, go sightseeing in the layover city or board a cruise liner they will have to first ensure they are admissible to Canada.

14. Can I move to Canada with a DUI?

In most cases, an individual who has a past DUI would be considered inadmissible to Canada for 10 years after the completion of the sentence. However, you may be able to apply for Permanent Residency in Canada once you have cleared your inadmissibility to Canada via the Criminal Rehabilitation application. In order to be eligible to apply for Criminal Rehabilitation, it must be at least five years after your completion of sentence.

If you are exploring permanent residency with a past DUI, we suggest consulting with a Canadian immigration lawyer about your options.

15. Can I work in Canada with a DUI?

If you are planning on working in Canada with a past DUI, inadmissibility issues are likely to arise. The Canadian government requires and searches criminal background information when an individual submits a work permit application. In most cases, you must apply for a Temporary Resident Permit (TRP) to coincide with a work permit. A more long-term and permanent solution is the Criminal Rehabilitation application, which can ensure no inadmissibility issues if you plan on working in Canada in the future.

16. I Have a NEXUS card. Is my recent DUI an issue?

Current NEXUS card holders are subject to the identical criminal inadmissibility laws as any individual who plans to enter Canada. A recent DUI can affect your ability to retain your NEXUS card, especially in circumstances where an individual is denied entry to Canada. U.S. citizens with a past DUI conviction will often need to get approved for Criminal Rehabilitation before they will be able to join or re-join NEXUS.

17. I am a Canadian citizen and received a DUI in the United States. Can I still enter Canada?

As a Canadian citizen, you have the right to enter Canada at any time even with a DUI from the U.S. If you have questions concerning re-entering the United States, we suggest consulting with a U.S. immigration lawyer.

18. Do I need a Canadian immigration lawyer to enter Canada with a DUI?

Both the Temporary Resident Permit (TRP) and Criminal Rehabilitation applications can be submitted with or without legal representation. However, a Canadian immigration lawyer can be a valuable resource when an individual is exploring entry into Canada with criminal history, and even more so in preparing an application for future entry.

Applications for a TRP and criminal rehabilitation can be difficult to understand, both for applicants and immigration officers. Sometimes otherwise acceptable applications are often denied if the applicant fails to provide the requested information or explain their situation to the officer.

The function of a TRP or criminal rehabilitation application is to argue that the individual needs to enter Canada and does not pose a risk to Canadians. An experienced lawyer can be of assistance in the preparation of this argument. The lawyer can advise the client on which evidence to include and help develop and summarize the individual’s argument.

About Cohen Immigration Law

Cohen Immigration Law is one of Canada's leading immigration law firms. We have over 45 years of experience and feature a team of over 60 Canadian immigration attorneys, paralegals, and other dedicated professionals.

Cohen Immigration Law uses its expertise to help clients overcome inadmissibility issues. Our team of inadmissibility lawyers and professionals will work to understand your situation and then submit the strongest possible application to Canadian immigration authorities.

How long do you have to wait to go to Canada after a DUI?

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What happens if you go to Canada with a DUI?