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- Canada, eh?
Clients seeking to travel to Canada with criminal convictions from
the U.S. (or any other country, for that matter) require unique advice.[1]
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. - 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? - 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.[2]
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.[3]
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.[4]
The Seattle Times explained the vortex travelers enter when they try to get into Canada:
http://archives.seattletimes.nwsource.com/cgi-bin/texis.cgi/web/vortex/display?slug=duicanada19e&date=20020819&query=DUI+Canada. As the article makes clear, entry is frequently denied in spite of signs warning travelers before they get on a plane.
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.
- 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.[5] These include:
- Deemed rehabilitation at a Canadian port of entry;
- Streamlined rehabilitation at a Canadian port of entry;
- Approval of rehabilitation through a Canadian Consulate in the United States; and
- A Temporary Resident Permit through a Canadian Consulate in the United States
- Deemed Rehabilitation.
Persons are eligible to apply for deemed rehabilitation at a port of entry if the following are true:
- There was only one conviction in total;
- 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);
- 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
- The conviction did not involve any serious property damage, physical harm to any person, or any type of weapon.
- Streamlined Rehabilitation.
Persons are eligible to apply for streamlined rehabilitation at a port of entry if the following are true:
There were two or less convictions in total;
- 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);
- 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
- The convictions did not involve any serious property damage, physical harm to any person, or any type of weapon.
- 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):
- A United States passport or birth certificate (with photo identification);
- A copy of court documents for each conviction, and proof that all sentences were completed;
- A recent FBI identification record;
- 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
- A fee is involved for the streamlined rehabilitation process,
equivalent to $200 Canadian. There is no fee for deemed rehabilitation.
- 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.
- 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; a telephone
conversation last month 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.
- 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.
- 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.
- 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.
- 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 (nice tourism fee, eh?). If conviction is
less than 5 years old, your client is going to have to jump through a
bunch of hoops, and even then, probably won't get in unless his last
name is Bush or Cheney.
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.
[1]
The author is not licensed to practice law in Canada, but has helped a
few clients get there. You are urged to undertake your own
investigation, and in appropriate cases, engage Canadian counsel.
[2] Drivers would be wise to keep this in mind when they are enjoying the Canadian beer or Okanogan wine.
[3]
The Immigration Section of Canada's Seattle Consulate has recently
written attorneys seeking clearance for clients seeking entry to Canada
emphasizing the restrictions on Canada's borders since 9/11: "Security
and enforcement at the Canada -United States border has heightened in
recent years. For this reason, more U.S. citizens with prior criminal
charges / convictions are refused entry into Canada. Canadians with
prior criminal charges / convictions attempting to enter the U.S. are
denied entry for security reasons as well. While it is possible for a
Canadian immigration officer or border patrol officer at a port of
entry to allow a person with a criminal record into Canada, this cannot
be guaranteed."
[4] This is from a fairly recent letter from the Seattle Canadian Consulate.
[5]
U.S. lawyers should note that Canada only recognizes three types of
paid representatives named on Canadian immigration forms: immigration
consultants who are members in good standing of the Canadian Society of
Immigration Consultants (CSIC); lawyers who are members in good
standing of a Canadian provincial or territorial law society and
students-at-law under their supervision; and notaries who are members
in good standing of the Chambre des notaires du Qu�bec and
students-at-law under their supervision. Submission of an Immigration
form and designation of a U.S. lawyer who is not a member of one of
these three groups will result in Canada returning the application.
- There must have been "volitional movement" of the vehicle, which means that the car has to move, and you must have voluntarily moved it! Sitting in a parked vehicle is not enough to prove drunk driving absent additional evidence---no matter how drunk you were!
- It must be proven that you were impaired from alcohol or drugs, or at or over the per se legal limit of .08, AT THE TIME OF DRIVING. Chemical breath tests and blood testing are never done at the time of driving, and hence the results do not directly prove your alcohol level at the time of driving. A person who has a final drink just before going home may be only .07 or less at the time of driving, but have their alcohol level rise to a higher level by the time he or she gets tested. A good expert witness can help demonstrate this to a jury, and a good lawyer can bring the point home to them!
- Voluntary consumption of drugs or alcohol must be the cause of impairment. If somebody spiked your drink or drugged you at a party you did not voluntarily get intoxicated! Involuntary intoxication is a complete defense to the charge of drunk driving.
- Was your driving limited to some type of emergency not created by you, and for which there appeared to be no reasonable alternative? If so, you have a defense to the charge of drunk driving even if you bombed the chemical and field sobriety tests!
As you can see, there are a number of different defenses to driving under the influence. You need, however, an experienced DUI defense attorney to spot one or more of them!
Call Paul Burglin now at (415) 453-0534. |
