Posted On: November 11, 2009 by Mary Frances Prevost

CALIFORNIA DUI CONVICTION CAN PREVENT ENTRY INTO CANADA

You have just had a really long year and you are dying to go to Whistler (in Canada) for a long-deserved ski vacation. Think again if you have a DUI conviction, a domestic violence conviction, or any type of conviction (misdemeanor or felony) that is indictable under Canadian law.

You WILL be stopped at the border, and you WILL be humiliated.

Read along to figure out what can be done in your case......

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CANADA

Clients seeking to travel to Canada with criminal convictions from the U.S. (or any other country, for that matter) require unique advice. Living in a state next to Canada means that we must be aware that many of our clients are likely to seek entry into Canada, and be extremely disappointed if they are turned back at the border. Because so many of our clients take entry into Canada for granted, it is important to consider several issues relating to entry to Canada. These include who can enter Canada, who can be excluded from Canada, how to overcome exclusion from Canada, and whether a client who is ineligible for rehabilitation can nonetheless seek entry.

A. Who Can Enter Canada.
Most people assume, without question, that just about anyone can enter Canada. This is not true. The Canadian Customs and Immigration Officers have ultimate authority to permit and deny anyone entry to Canada. No one has an automatic right to enter Canada. However, most people if they have no criminal record are allowed entry. What if you have a criminal conviction?

B. Who Can’t Enter Canada.
To begin, in Canada a DUI is a felony and therefore an excludable offense under the Immigration Act. A DUI is an indictable offense in Canada that may be punished by imprisonment for up to a five year term. Anyone with a conviction in the U.S. that is treated as a felony or indictable offense in Canada is excludable from Canada, but even if the offense is not a felony or indictable offense in Canada, Customs and Immigration Officers have ultimate authority to permit and deny entry to Canada.

Almost all convictions (including DUI, DWI, reckless driving, negligent driving, misdemeanor drug possession, all felonies, domestic violence (assault IV), shoplifting, theft, etc) can make a person inadmissible to Canada, regardless of when they occurred. For this reason, it is not recommended that persons with past convictions attempt to enter Canada without first obtaining necessary documents. It is always the final decision of officers at ports of entry to decide whether a person should be allowed into Canada.

The reason for this exclusion is contained in Canadian law. The Canadian Immigration Act, in § 19; states:

(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:
(a) persons who have been convicted in Canada of an indictable offence, or of an offence for which the offender may be prosecuted by indictment or for which the offender is punishable on summary conviction, that may be punishable under any Act of Parliament by a maximum term of imprisonment of less than ten years, other than an offence designated as a contravention under the Contraventions Act;
(a.1) persons who there are reasonable grounds to believe
(i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years, or
(ii) have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years, except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be;

Later, in § 3 of the Immigration Act, there is a provision that permits discretionary entry:

A senior immigration officer or an adjudicator, as the case may be, may grant entry to any person who is a member of an inadmissible class described in subsection (2) subject to such terms and conditions as the officer or adjudicator deems appropriate and for a period not exceeding thirty days, where, in the opinion of the officer or adjudicator, the purpose for which entry is sought justifies admission.

Again, the Canadian Consulate emphasizes that this entry is discretionary, and in the post 9/11 aftermath, officers are more typically exercising their discretion to deny entry than to grant entry. Even if a Canadian Minister (I'm not sure which minister) has approved a client's entry, the border person can still reject the person.

Finally, there is a permit process that requires prior application and may permit an otherwise excludable person to enter Canada. Information on the permit is on the consulate general’s web-site, permits a visit of up to 30 days, and as I understand it, once it is approved, may be re-approved when application is made within a 3 year period. Permit information is at: http://www.dfait-maeci.gc.ca/can-am/menu-en.asp?act=v&mid=12&cat=180&did=397. This process is discussed in the next section.

C. Overcoming Exclusion from Canada.

There are several ways individuals can overcome criminal inadmissibility, but the short answer you must give your client is that there is no short and easy way to do it. These include:

1 Deemed rehabilitation at a Canadian port of entry;
2 Streamlined rehabilitation at a Canadian port of entry;
3 Approval of rehabilitation through a Canadian Consulate in the United States; and
4 A Temporary Resident Permit through a Canadian Consulate in the United States

1. Deemed Rehabilitation.

Persons are eligible to apply for deemed rehabilitation at a port of entry if the following are true:
1 There was only one conviction in total;
2 At least ten years have elapsed since all of the sentences for the conviction were completed (payment of all fees, jail time completed, restitution paid, etc);
3 The conviction would not be considered serious criminality in Canada (most felony convictions in the United States are equivalent to serious criminality in Canada); and
4 The conviction did not involve any serious property damage, physical harm to any person, or any type of weapon.

2. Streamlined Rehabilitation.

Persons are eligible to apply for streamlined rehabilitation at a port of entry if the following are true:
1 There were two or less convictions in total;
2 At least five years have elapsed since all of the sentences for the conviction(s) were completed (payment of all fees, jail time completed, restitution paid, etc);
3 The convictions would not be considered serious criminality in Canada (most felony convictions in the United States are equivalent to serious criminality in Canada); and
4 The convictions did not involve any serious property damage, physical harm to any person, or any type of weapon.

3. Deemed & Streamlined Rehabilitation Applications.

Deemed rehabilitation and streamlined rehabilitation applications are processed at Canadian ports of entry. Submitting an application for rehabilitation does not guarantee that the request will be approved. Should your client wish to apply for either, the client must bring the following documents to a port of entry during regular business hours (Monday - Friday between 8am and 5pm):
1 A United States passport or birth certificate (with photo identification);
2 A copy of court documents for each conviction, and proof that all sentences were completed;
3 A recent FBI identification record;
4 Recent police certificates from the state where the conviction(s) occurred, and from any state where a person has lived for six (6) months or longer in the last 10 years; and
5 A fee is involved for the streamlined rehabilitation process, equivalent to $200 Canadian. There is no fee for deemed rehabilitation.

4. Approval of Rehabilitation.

If more than 5 years have elapsed since all sentences related to the conviction(s) were completed, but a person is not eligible for rehabilitation at a port of entry (because of the nature or number of convictions), a person may apply for approval of rehabilitation through a Canadian Consulate in the United States. The same documents required for port of entry rehabilitation identified above are also required for rehabilitation through a Canadian Consulate, plus a completed Application for Criminal Rehabilitation (Citizenship & Immigration Canada Form IMM 1444. Five Canadian Consulates in the U.S. process criminal applications - Buffalo, NW, New York, NY, Detroit, MI, Los Angeles, CA, and Seattle, WA. Again, the decision to approve rehabilitation is discretionary, so there is no certainty in obtaining admission to Canada. In the situation where a person is ineligible for rehabilitation because of the nature or number of convictions, employment of competent Canadian immigration counsel may facilitate approval of the application.

5. Temporary Resident Permit.

If a person is not eligible for deemed, streamlined, or approved rehabilitation, the only option remaining (short of a pardon or executive action) is to apply for a temporary resident permit. This is a process where a person requests special permission to enter or remain in Canada.

A person seeking a temporary resident permit submits the documents required for deemed or streamlined rehabilitation as well as a completed Application for Criminal Rehabilitation, except that the applicant does not check the box in § A(1) indicating Application for Approval of Rehabilitation, but instead checks the box in § A (2) indicating For Information Only.

As poignantly noted on the Citizenship & Immigration Canada website, the Customs and Immigration officer will review the Application form, look at the nature of the offenses, the number of offenses, when the offences happened, and the applicants current situation, and then the officer will:

At Canadian visa offices outside of Canada:
• advise that they do not recommend that you travel to Canada; or,
• advise that you could apply for special permission (temporary resident’s permit) to enter Canada*.
At Ports of Entry (airport, marine or land)
(Contact your nearest Canadian visa office before traveling into Canada.)
• advise that you will not be allowed to enter Canada and ask you to return immediately to your country of departure;
• take enforcement action (arrest, detention and/or removal); or,
• advise that you could apply for special permission (temporary resident’s permit) to enter Canada.
In Canada
• ask that you leave Canada voluntarily;
• take enforcement action (arrest, detention, and/or removal from Canada); or
• advise that you could apply for special permission (temporary resident’s permit) to remain in Canada.
The safest course of conduct is to make application for, and obtain approval of, a Temporary Resident Permit at a Canadian consulate in the U.S. prior to attempting entry to Canada. The website indicates that Approval of Rehabilitation and Temporary Resident Permits take a minimum of six (6) months to process in the Seattle office; information indicated the time in Seattle is much closer to one year. Clients seeking quicker decisions should direct their applications to the Canadian Consulates in Detroit and Buffalo.

Failure to timely seek a Temporary Resident Permit can result in disastrous consequences. A client who failed to seek a Temporary Resident Permit was stopped at Customs and Immigrations in Toronto, detained, and returned to Denver the next morning on the next flight home. He was also unable to close a multi-million dollar sale, and lost his job as a vice-president in the cellular phone industry. Another client who failed to seek a Temporary Resident Permit was stopped, questioned, and permitted to enter Canada for business, but was counseled she would not always be so lucky.

Once a Temporary Resident Permit is granted, it must be updated every 6 months to 1 year. It is not permanent. There are significant non-refundable processing fees associated with Temporary Resident Permits, and not surprisingly, higher fees correspond to cases involving more serious criminality.

6. Processing Problems.
The most frequent problem is inadequate or incomplete documentation. Although court documents may be difficult to obtain, Canada typically requires them for review. Proof of sentences being completed is critical, which could be anything from a letter received stating that a person’s civil rights have been restored or a letter from a probation officer stating that all sentences were completed successfully, to proof of the final payment of a fine showing a zero balance. If court documents and/or proof of completed sentences have been destroyed by the court, Canada requires a letter from the court which clearly indicates that files are no longer available. Canada also needs to see original FBI certificates and state police certificates issued within the year, and requests all required materials be submitted in one package. While the minimum processing time for these applications is six (6) months, many cases take longer to process.

D. Resources.

The web link http://www.cic.gc.ca/english/applications/rehabil.html has information about the rehabilitation process.

Temporary residence permit information is contained in the consulate general’s web-site: http://www.dfait-maeci.gc.ca/can-am/menu-en.asp?act=v&mid=12&cat=180&did=397.

The consolidated statutes and regulations page for Canada is: http://laws.justice.gc.ca/.

A more specific link to the immigration statutes is at: http://laws.justice.gc.ca/en/I-2/index.html.

The specific portion of the Immigration Act that bars entry is at: http://laws.justice.gc.ca/en/I-2/60195.html.

The web link http://www.canadianembassy.org/immigration/inadmissible-en.asp explains generally inadmissibility.

The web address for Nexus, which facilitates and speeds multiple border crossings, is: http://www.cbsa-asfc.gc.ca/travel/nexus/menu-e.html.

E. Deported from Canada?A visitor to Canada faces possible deportation upon conviction for impaired driving (DUI), violating Canada’s .08 per se limit, or refusing a breath sample. A person in Canada as a visitor who is convicted of a drinking and driving offence may not be able to renew his or her visitor status, and upon conviction, such a person becomes inadmissible to Canada and can be deported. To overcome this inadmissibility, a pardon is required.

F. General Summary and Practice Tip.
Basically, if convictions are over 10 years old, entry is permitted after a criminal background check. If convictions are between 5 and 10 years old, entry is permitted on payment of a $200 fine/fee and a criminal background check. If conviction is less than 5 years old, you are going to have to jump through a bunch of hoops, and even then, probably won’t get in unless there are exceptional cricumstances.

If there is any possibility a client will one day have to enter Canada, the client would be prudent to secure certified true copies of all court records relating to the conviction and sentence, including proof of fine payment, and a transcript of the evidence underlying the conviction.

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