DWI Conviction and Travel to Canada

June 20, 2016 in DWI, Frequently Asked Questions Travel To Canada

I have been arrested for a DWI or DUI offense.  Can I still travel to Canada?

If you have been convicted of a DWI or DUI offense in New York or elsewhere in the United States, you may be refused entry into Canada on the grounds of criminal inadmissibility.

It is important to understand how criminal inadmissibility is determined, and what you can do to overcome it if you need to enter Canada. There are a few important questions that you must ask, and may want to discuss with your attorney:

  1. What is the equivalent of the offense in Canada? 
  2. Is it considered a conviction for the purposes of travel to Canada?  If so, what kind of conviction? 
  3. How can I overcome my criminal inadmissibility in order to enter Canada?  

Is there equivalency between my offense and the suggested offense in Canada?

In order to determine equivalency, the essential elements of your offense and the suggested offense in Canada must be compared.  If the same elements are present in both, then there is equivalency.

There must be particular elements of the offense that you have been charged with that fall within the parameters of the Canadian offense.  For example, if you have been charged with a DUI or DWI–whether it’s a violation, misdemeanor, or felony–it will be considered an equivalent to a Canadian offense.

Operation While Impaired (Section 253) and Dangerous Operation of Motor Vehicles (Section 249) of the Canadian Criminal Code, are the offenses considered to be equivalent to DUI or DWI charges in the United States. Operation While Impaired specifically outlaws operating a vehicle while impaired by drugs or alcohol, while the Dangerous Operation of Motor Vehicles is broader, and states, “Every one commits an offense who operates (a) a motor vehicle in a manner that is dangerous to the public…” These two Canadian statutes provide enough equivalency to prevent you from entering Canada if you have a DUI or DWI conviction on your record in the United States.

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Is my offense considered a conviction in Canada?

For the purposes of visiting Canada, if the terms deferral of sentence, nolo contendre, or convicted of several counts are used, then it will be considered a conviction.

If the terms acquittal contemplating dismissal, deferral of prosecution, deferral of judgment, deferral of conviction, nolle prosequi, or expunged are used, then the offense is not a conviction for Canadian immigration purposes.

Offenses in Canada are categorized into summary offenses, indictable offenses, and hybrid offenses, which could be treated as either summary or indictable offenses. For the purpose of travel to Canada, hybrid offenses are considered indictable offenses, and may prevent you from entering the country.

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Summary offenses are considered minor offenses, with a maximum penalty of six months of imprisonment, and a maximum fine of $5000. For example, trespassing at night, or causing a disturbance are considered summary offenses. If you have one summary offense equivalent on your record, you will not be criminally inadmissible to Canada, however, if you have more than one summary equivalent offense you may be criminally inadmissible.

Indictable offenses are any offenses punishable by more that six months imprisonment according to Canadian law, and are categorized based on the nature of the offense. If you have been convicted of an indictable offense equivalent, you will likely be criminally inadmissible to Canada.

Much of your admissibility depends on whether you have been convicted of a serious offense, or a non-serious offense. A serious offense is an offense that, if committed in Canada, would have a maximum sentence of 10 years or more in prison, whereas a non-serious offense would have a maximum sentence of less than 10 years if committed in Canada.

Canadian law does not distinguish between violations, misdemeanors, and felonies in the same way that the United States criminal justice system does. This means that even if you were only found guilty of a violation in the United States, it will not necessarily be treated as a violation in Canada. It truly depends on whether the crime you committed was a summary or indictable offense under Canadian law, and whether it would be classified as a serious or non-serious crime. If you have been charged with a DUI or DWI in the United States, and it results in a conviction, you will be found criminally inadmissible to Canada. All United States DWI and DUI convictions are considered indictable offense equivalents in Canada.

If you have been convicted of a DUI or DWI in the United States, you will be found criminally inadmissible to Canada and cannot legally visit the country.

If you have been convicted of a serious offense, you have a decreased likelihood of success when it comes to entering Canada. There will be a longer processing time, and higher processing fees for these kinds of offenses. For example, offenses involving fraud or thefts of over $5000, involving the injuring or killing of another person, or the trafficking of narcotics will make it more difficult to enter Canada.

Will sealed criminal records affect my ability to travel to Canada?

For Canadian immigration purposes, sealed records are still criminal records. The reason your record was sealed can make a difference. Whether it was a youth record, an agreement with the prosecution, or for security reasons can all have an effect on whether you will be admitted into Canada.

How do I overcome inadmissibility?

How you will go about overcoming your criminal inadmissibility depends on the amount of time that has passed since completing your sentence. If you were convicted of a crime that results in criminal inadmissibility, then from the date you complete your sentence, and for the five years following the completion of your sentence, a Temporary Resident Permit (TRP) is your only option for travel to Canada. Once five years have passed since the completion of your sentence, then you may apply for Criminal Rehabilitation, which will permanently resolve your criminal inadmissibility as long as you have not committed any additional offenses. When ten years have passed since the completion of your sentence, you may be “deemed rehabilitated” and your inadmissibility may be resolved, but only if the conviction was for a single, non-serious offense.

If less than five years has passed since the completion of your sentence, or if you are still in the process of completing it, criminal inadmissibility to Canada may be temporarily resolved by obtaining a Temporary Resident Permit. A TRP may also be necessary if more than five years have passed since the completion of your sentence, but you have not gone through criminal rehabilitation. You must also have a “significant” need to enter Canada, for example for work reasons, or for a family emergency.

You may apply for a TRP or Criminal Rehabilitation Application at the border or port of entry into Canada, and the decision will be made at that time, however, there is a shorter period of validity for the granted TRPs. You may also apply at the Canadian Consulate in New York City or Los Angeles. The processing time for applications going through the Consulate is considerably longer, usually 12 to 18 months, but the period of validity is longer for applications granted through the Consulate.

If five years or more have passed since the completion of your sentence, you may apply for Criminal Rehabilitation, which will resolve your criminal inadmissibility permanently, as long as there are no further offenses. In order to be granted Criminal Rehabilitation, you must show that there is no risk of you committing another crime. A visa officer will take a number of different factors of your situation into consideration when deciding whether to grant Criminal Rehabilitation. The visa officer will consider whether your conviction was for a serious, or non-serious offense, and how much time has passed since the offense was committed. They will also examine your criminal record, and consider your criminal history. Then the officer will determine what likelihood there is that you will reoffend. They will ask for evidence showing that you have changed your lifestyle to ensure that you are at a low risk for reoffending.

If you have only one conviction on your record for a non-serious offense, or an offense where the maximum sentence is less than 10 years under Canadian law, and you completed your sentence 10 years or more ago, you are deemed rehabilitated by the passing of time. You may want to get a Legal Opinion Letter to explain why you are not inadmissible to Canada as a precaution. This deemed rehabilitation does not apply if you were convicted of a serious offense, with a maximum sentence of 10 years or more under Canadian law. If you have two offenses on your criminal record, but they are very minor offenses, equivalent to summary offenses in Canada, you will be deemed rehabilitated after five years.

Have you been charged with a DWI, DWAI, or DUI in New York?

Contact Perlmutter & McGuinness, P.C. today for a free consultation: (646) 742-9800

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