If you are a foreign national and have committed or been convicted of a driving under the influence offence or any other criminal offence, you may be criminally inadmissible to Canada – meaning that you may not be allowed into Canada.
Driving Under the Influence (DUI) convictions are not treated the same in the U.S. as in Canada. Canada's fines and penalties for drunk driving are far more severe than the United States.
On December 18, 2018, new DUI laws came into effect in Canada that categorize all DUI offences as "serious criminality" for immigration purposes.
Previously, only DUI offences that resulted in death or bodily harm were found to be serious criminality. Now, the following driving offences committed on or after December 18, 2018, are also considered to be serious criminality offences:
- Driving while impaired
- Refusing to provide a breath or blood sample
- Dangerous operation of a vehicle
The December 18, 2018, cut off applies to the date the act was committed, not the date of conviction.
Does the violation of any law make a person criminally inadmissible to Canada?
Just because a person has broken a U.S. law does not necessarily mean that he or she is criminally inadmissible to Canada.
While DUI convictions will make a person criminally inadmissible, other less serious crimes may not. If the violation is equivalent to a violation of Canadian federal law, an individual will likely be found criminally inadmissible.
However, if the violation is equivalent to a violation of municipal or provincial law, an individual will not be found criminally inadmissible.
Can criminal pasts be negated for Canadian travel or immigration purposes?
When an individual is inadmissible to Canada, the next question is whether that person can negate his or her foreign criminal record for Canadian travel or immigration purposes.
A person can negate a U.S. criminal record permanently by obtaining "Deemed Rehabilitation" or "Individual Rehabilitation." A U.S. criminal record can be negated temporarily by obtaining a "Temporary Resident Permit." Whether an individual is eligible for Deemed or Individual Rehabilitation depends on how much time has passed since the end of the person's sentence.
Additionally, in some instances, individuals who get their criminal records expunged or receive a pardon may no longer be considered inadmissible for Canadian immigration purposes. To be effective, the U.S. expungement or U.S. pardon must be shown to be equivalent to a Canadian record suspension (formerly a Canadian pardon).
Deemed vs Individual Rehabilitation
Deemed Rehabilitation is a process by which the Government of Canada recognizes that an individual with a criminal record is no longer inadmissible because of the passage of time.
For individuals convicted of or who have committed a DUI offence that was committed before December 18, 2018, Deemed Rehabilitation is available 10 years after the completion of that person's sentence (or after the commission of the offence if there was no conviction).
For individuals who were convicted of or committed an offence that falls within the realm of serious criminality (such as a DUI offence committed on or after December 18, 2018), Deemed Rehabilitation is not available.
If an individual is not eligible for Deemed Rehabilitation, he or she may be eligible for Individual Rehabilitation. This process is officially called "Rehabilitation."
Individual Rehabilitation requires the passage of time and the ability to prove that one has actually been rehabilitated. Five years must pass after the completion of one's sentence (or the commission of an offence if there was no conviction) to apply. The five-year time period exists for both criminality and serious criminality offences.
The main difference between Deemed and Individual Rehabilitation is the need for proof of actual rehabilitation.
Note that, for both Deemed and Individual Rehabilitation, the passage of time is counted from the date the sentence ended. This date may be different from date of conviction.
Temporary Resident Permit
Individuals guilty of criminality and serious criminality can still apply for a Temporary Resident Permit before travel to Canada and in some instances at a Canadian port of entry.
A Temporary Resident Permit is a document that grants an individual with a criminal record temporary entry to Canada. Unlike Rehabilitation, Temporary Resident Permits do not permanently negate a person's U.S. conviction for Canadian immigration purposes. Temporary Resident Permits may be granted for one-time entry to Canada, multiple entries to Canada, or for short or long durations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.