The question of whether a pending DUI or a conviction for driving under the influence in California will bar travel to Canada is a recurring question that has been a source of confusion for many decades. You see, Canada has very strict regulations on who can enter the country, whether it be for business or a simple day trip.
The problem occurs when a traveler presents himself for entry at an airport or cruise terminal and is surprised to discover that immigration officials prevent them from entering the country.
Currently Canada and the US share criminal record checks on citizens. Ultimately the European Union (EU) is moving towards a similar situation with Canada and the USA but I do not believe the legislation is in force yet.
To avoid problems, many experienced DWI lawyers will refer the client to a Canadian attorney who can properly investigate their individual situation and give them accurate legal advice about their future trip to Canada. One prominent legal counselor has provided information on the topic and always recommends a complete assessment prior to travel.
According to one attorney: Refusals and DUIs are now serious criminality in Canada because they are punishable by 10 years or more. All serious offences make a person inadmissible forever until they apply for relief, though criminal rehabilitation, which they become eligible for once 5 years have passed from completion of their sentence.
Furthermore, refusal to provide a breath specimen is a criminal offence in Canada, that makes a person inadmissible to Canada forever, until such time as they obtain relief through an application called Criminal Rehabilitation [the same is true if they were convicted of a DUI]. The legislation that sets out this rule does not consider how the offence was treated in the state where it occurred: it makes no difference if it is a misdemeanor or felony or if it is not classified as a criminal offence at all. The only relevant information is whether the failure offence is a criminal offence in Canada and the maximum sentence in Canada.
So the answer seems to be that a person is inadmissible to Canada two situations; either for a criminal conviction for driving under the influence or for having committed an act that would be an offence in Canada. So, it makes no difference how the offence was classified in the state where it occurred. This appears to be the case according to the Canadian Immigration and Refugee Protection Act. Under subsection b if that Act a conviction renders a person inadmissible and subsection āCā is “committing an act”. Thus, if a person is convicted for an offence that is not a criminal offence in the state where it occurred, but it is equivalent to an offence under an Act of Parliament in Canada, inadmissibility ensues. This seems to encompass those situations where a person avoids criminal prosecution but still is suspended by the DMV for either refusing or driving with a BAC over .08.
What about criminal charges that were later dismissed, reduced or not filed? The problem is the arrest will likely come up if the border agent runs your background. In these instances, you can likely travel into Canada. However, if asked about the arrest you will need to be honest, and explain that you were not charged or that the charges were dismissed and assert your innocence. Reduction of a DUI to a wet reckless could lessen the likelihood of travel restrictions.
So, what can a traveler expect when entering the country?
Canadian immigration officials sometimes ask foreign nationals entering by foot, car, bus, train, boat, or plane whether they have ever been arrested. By the officialās training, experience, and hunches, follow-up questions would depend on the travelerās answer and demeanor.
Some foreign nationals pass through with no questions at all. It depends on staffing, how busy they are, the day of the week, whether a supervisor is present, which port of entry is used, and a profiling algorithm.
To discover whether a foreign conviction–or pending charge– is equivalent to an indictable federal Canadian offense, thus rendering the foreign national traveler inadmissible, check the Canadian Criminal Code: http://laws-lois.justice.gc.ca/eng/acts/C-46/
Most U.S. DUI and physical control under the influence offenses are equivalent to indictable Canadian offenses. See Canadian Criminal Code Section 253:
(1) Every one [sic] commits an offence [sic] who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,
(a) while the personās ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
(b) having consumed alcohol in such a quantity that the concentration in the personās blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
(2) For greater certainty, the reference to impairment by alcohol or a drug in paragraph (1)(a) includes impairment by a combination of alcohol and a drug.
Very significant for our U.S. DUI clients, on December 18, 2018, the maximum sentence for a first-time DUI in Canada was increased from 5 to 10 years, changing a DUI from a “non-serious” offense to a “serious” offense. This can directly affect a DUI offender’s options to overcome criminal inadmissibility, as discussed in item 9, below.
There are three ways to try to overcome criminally inadmissible status: temporary resident permit (TRP), criminal rehabilitation (CR), and deemed rehabilitation (DR). They are applicable, among other factors, depending on the length of time since completion of the sentence, including jail, license suspension, fine payment, and probation:
ā¢ If less then 5 years, a temporary resident permit (TRP) is the only option. This requires an application that demonstrates a significant reason for being in Canada, such as a family (think funeral or wedding), work, or emergency situation. Your client’s Canadian family and business interests may provide acceptable grounds for such an application. I’d recommend hiring an authorized Canada immigration representative to assist in preparing it.
ā¢ If 5 or more years, in addition to a TRP, the offender may apply for criminal rehabilitation (CR). Such an application must demonstrate that the offender is in a stable, healthy lifestyle and at no risk to re-offend or pose a threat to Canadians.
ā¢ If 10 or more years, and there was no more than one “non-serious” offense committed, the offender may be “deemed rehabilitated” (DR), without formal application. But note:
ā¢ A person convicted since December 18, 2018 of a DUI (a “serious” offense since that date), can never be deemed rehabilitated (DR).
ā¢ If a person convicted of a DUI had completed his sentence (including jail, license suspension, fine payment, and probation) 10 or more years before December 18, 2018, he was already deemed rehabilitated (DR) before the law change, and remains so, assuming no further criminal offenses.
ā¢ A person convicted of a DUI before December 18, 2018–while it was still a “non-serious” offense–but whose sentence (including jail, license suspension, fine payment, and probation) had not been completed more than 10 years prior to that date, might still be eligible for deemed rehabilitation (DR) status. I’d address this question to a Canadian immigration lawyer: If a “non-serious” offense at the time of the conviction, will it still be treated as “non-serious” after December 18, 2018, for deemed rehabilitation purposes? I think that the answer is, “yes,” based on the case Tran v. Canada [2017 SCC 50], which states that the court should consider the law in effect in Canada at the time.
ā¢ Even though no formal application is required for DR, documentary proof of the date the sentence was completed, perhaps along with an opinion letter from a Canadian immigration lawyer explaining how and why DR status is appropriate, would be prudent to have in hand at a border crossing.
Canadian immigration officials sometimes ask foreign nationals entering by foot, car, bus, train, boat, or plane whether they have ever been arrested. By the officialās training, experience, and hunches, follow-up questions would depend on the travelerās answer and demeanor.
If entering by plane, officials will likely 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).
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 are 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.
But crossing the border may be just the first hurdle for your client. The next could be at the rental car counter. If he’s under any kind of a driving suspension–even with limited privileges–and/or can’t show a valid piece of plastic, many car rental companies in any country would turn him away.
What about renting a car in Canada with a prior DUI? Phoning various rental car companies to find out what they require and what may prevent a rental may be prudent. I’d start with anonymous calls. Ask whether the company may accept a paper entry or other evidence of limited privileges in lieu of regular plastic, whether the company will affirmatively ask about suspensions, and whether the company will check national databases.
To recap, here is what you need to know:
Some U.S. courts and law enforcement organizations forward information about dui and other criminal charges to the FBI National Crime Information Center (NCIC). They may or may not later forward the dispositions–favorable or not–of such cases.
Canadian immigration officials sometimes ask foreign nationals entering by foot, car, bus, train, boat, or plane whether they have ever been arrested. By the officialās training, experience, and hunches, follow-up questions would depend on the travelerās answer and demeanor.
Some foreign nationals pass through with no questions at all. It depends on staffing, how busy they are, the day of the week, whether a supervisor is present, which port of entry is used, and a profiling algorithm.
If entering by plane, officials will likely 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
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 are 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.
Problems may arise when NCIC records show a DUI charge without a completely favorable resolution, a person may have an admissibility problem that can likely be overcome in one of three ways.
The three ways to try to overcome criminally inadmissible status are: temporary resident permit (TRP), criminal rehabilitation (CR), and deemed rehabilitation (DR). They are applicable, among other factors, depending on the length of time since completion of the sentence, including jail, license suspension, fine payment, and probation (and perhaps since a final fully-favorable disposition):
ā¢ If less then 5 years, a temporary resident permit (TRP) is the only option, but is also available to your client. This requires an application that demonstrates a significant reason for being in Canada, such as a family, work, or emergency situation. Your client’s family wedding would likely provide acceptable grounds for such an application. I’d recommend hiring an authorized Canada immigration representative to assist in preparing it. But your client could actually make that application pro se right at the border. Your letter describing the ultimate favorable resolution of the case in your client’s hand may be helpful. But a Canadian immigration lawyer’s opinion letter may be more and/or additionally persuasive.
ā¢ If 5 or more years, in addition to a TRP, your client may apply for criminal rehabilitation (CR). Such an application must demonstrate that your client is in a stable, healthy lifestyle and at no risk to re-offend or pose a threat to Canadians.
ā¢ If 10 or more years–which point may be imminent for your client–and there was no more than one “non-serious” offense (allegedly) committed, your client may be “deemed rehabilitated” (DR), without formal application. Even though no formal application is required for DR, documentary proof of the date the sentence was completed (or–and this is a guess–perhaps when there was a final fully-favorable disposition), perhaps along with an opinion letter from a Canadian immigration lawyer explaining how and why DR status is appropriate, would be prudent to have in hand at a border crossing.
In addition to DUI, most countries will deny entry for folks who have a felony conviction. Here is a list of the countries that prevent travel for people with a felony on their record:
Partial list of countries that restrict visits from felons:
- Argentina
- Australia
- Brazil
- Cambodia
- Canada
- Chile
- China
- Cuba
- Dominican Republic
- Egypt
- Ethiopia
- Hong Kong
- India
- Indonesia
- Iran
- Ireland
- Israel
- Japan
- Kenya
- Malaysia
- Macau
- Mexico
- Morocco
- Nepal
- New Zealand
- Peru
- Philippines
- Singapore
- South Africa
- South Korea
- Taiwan
- Tanzania
- Tunisia
- Turkey
- Ukraine
- United Arab Emirates
- United Kingdom
Many countries, including the United States, do generally prohibit the admission of felons. Which ones do and don’t is actually a very complicated, non-binary question. So it would be imprudent to rely solely on a list of countries that do or don’t admit felons, no matter the source of the list. I’d recommend doing current research on each country your particular client may hope to be admitted into. That would likely include, among other things, contacting the foreign nation’s consulate or embassy, and/or a specialist in that country’s immigration law.
Torrance DUI Attorney Matthew Ruff has nearly 30 years experience defending good people charged with driving under the influence in California. His office serves the entire county of Los Angeles including Redondo Beach, Palos Verdes, Lomita, El Segundo, Manhattan Beach, Santa Clarita and Hermosa.
The information contained on this page is general in nature and not intended to be used as specific legal advice. Consult a lawyer specializing in travel to Canada for specific advice in your case.
