People often wish to travel to Canada for recreation or employment. However, with greater security and law enforcement at the border, a trip to Canada is becoming increasingly difficult for people with criminal charges. Canadian immigration law is as complicated as U.S. immigration law. Moreover, border officials have broad discretion about who can and cannot enter Canada. This discretion is granted both by Canadian law and by the fact that a person denied entry at the border may not have much recourse at that time.
Many convictions in the United States including DUI, Reckless Driving, and Negligent Driving 1, can render a person inadmissible to Canada. Inadmissibility is determined by comparing the elements of the crime in the U.S. with the elements of Canadian criminal offenses. For people who have traveled smoothly back and forth to Canada in the past, being refused entry at the border can catch them completely off guard, be frustrating, and feel embarrassing. It is important that lawyers advise clients of the potential issues and how to increase the chances that they will be granted entry into Canada.
These questions may be bothering you. Let's address them.
First, will border officials ask you about criminal charges and, if so, how should you respond? A Canadian immigration official told me at the Blaine Border Crossing that guards attempt to be as random as possible when choosing who to question about criminal charges and they do not question everyone. Therefore, you may sail through the border without a hitch. If you are not questioned, you should not volunteer any information about prior convictions or pending criminal charges.
If questioned by a border official about criminal matters, you should answer honestly. According to the immigration official I contacted, immigration officials have access to Washington State DOL records, FBI records, and criminal history data from all states. If a border official is asking about criminal history, he probably has it on a computer screen in front of him. It is much easier for you to overcome inadmissibility due to criminality than due to misrepresentation.
While you should answer honestly about criminal matters - you should not provide specific details about pending charges. If you admit sufficient information to a border official about a pending DUI case, you can be denied entry even though not convicted. If you have a pending DUI, a letter from your attorney with a basic summary of the procedural status of the case would be helpful. Generally, border officials do not deny entry to someone with a pending DUI. This is especially true for a person on a deferred prosecution because alcoholism, in and of itself, does not make someone inadmissible.
Second, how can you enter Canada if convicted of a inadmissible offense? There are four possible options: a temporary resident permit; a criminal rehabilitation; being deemed rehabilitated; and finally, an expungement of the inadmissible conviction.
There are two routes to obtaining a temporary resident permit. First, you can simply appear at the border and apply for one if denied entry due to a conviction. Border officials have discretion in granting such an application. The advantage of an application at the border is that, generally, less paperwork is required. Such a permit is generally for a single entry.
If a client wishes to obtain a multiple entry permit or wants assurance ahead of time that he or she will be allowed into Canada, he or she can apply for a temporary resident permit at a Canadian consulate in the United States.
If more than five years have passed since the completion of your sentence, you may apply for criminal rehabilitation. This process generally takes about a year - but will permanently resolve your admissibility to Canada dilemma. The paperwork required for a temporary resident permit or an application for criminal rehabilitation can be extensive and the assistance of an attorney experienced with Canadian immigration procedures is extremely helpful.
If more than ten years have passed since the completion of your sentence, you can be deemed rehabilitated at a port of entry to Canada. This is not a formal application process, but is assessed by immigration officials at the border and does not happen automatically after ten years. If you are eligible after ten years, but obtain another conviction later - you would now have two convictions and become inadmissible.
Finally, under some circumstances it may be easier to bring a motion to vacate and expunge a conviction in the U.S. to facilitate entry to Canada. A DUI conviction cannot be vacated. This procedure would only work for other criminal charges. Canadian officials will generally treat an expungement as the equivalent of no conviction. However, crimes must be assessed on an individual basis.