For context, Canadian immigration officials sometimes ask foreign nationals entering by foot, car, bus, train, boat, or plane whether they have ever been arrested.  By the official’s training, experience, and hunches, follow-up questions would depend on the traveler’s answer and demeanor.

If you are planning on traveling to Canada in the near future and have recently been arrested for DUI you should be aware you may face admissibility to the Country.  Many attorneys believe that either the traveler’s admission of a DUI arrest, or the confirmation by digital record of a DUI arrest, without more, may be enough to trigger inadmissibility.

Some foreign nationals pass through with no questions at all.  It depends on staffing, how busy they are, and a profiling algorithm.  If entering by plane, officials may have passenger lists they can research ahead of time.

But just about every border crossing will have electronic passport scanners that can instantly bring up a criminal history.  Importantly, they don’t access state records; only data from the FBI National Crime Information Center (NCIC).

Here are details on how to check to see what’s in the NCIC database, prudent for any U.S. citizen heading to Canada with any doubt as to what will show up :

https://www.fbi.gov/services/cjis/identity-history-summary-checks

It used to take a month or more to obtain that FBI Identity History Summary.  But it’s now much faster.  What’s there and what’s not there is critical, including arrests, convictions, dismissals, and acquittals.  Sometimes the information there is incorrect or incomplete, depending on whether, when, and how accurately the data is sent there by local law enforcement agencies and courts.

Here is the actual law in Canada, from an actual Canadian lawyer:

Serious criminality

• 36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

• (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;

• (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or

• (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.

• (2) A foreign national is inadmissible on grounds of criminality for

• (a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;

• (b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament; or

• (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament.

A DUI dismissed without prejudice is not a conviction and does not render someone inadmissible on the grounds of criminality or serious criminality. Similarly, a pending DUI does not trigger these sections.

A travel letter from a Canadian lawyer explaining what occurred with the prior charge in case the records are unclear or there is confusion is helpful to have.

The section you are referring to when talking about the fact of being charged is this:

33 The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.

But because the legislation for criminality requires a conviction there must be a conviction or reasonable grounds to believe there was a conviction, not that the offence may have occurred.

Like with any border in any country, you can be turned away at any point because they don’t like the “cut of your jib”. So no one other than Canadian citizens or permanent residents is just admissible into Canada.

The information in this blog post is general in nature and not intended to be taken as specific legal advice.

Matthew Ruff is a Torrance Criminal Defense Lawyer with nearly 30 years experience defending drivers accused of all manner of alcohol and drug related charges.