In most cases, a conviction for driving under the influence of alcohol or drugs (DUI) will render an individual inadmissible to Canada.
Whether they are coming to work on a multi-year contract or simply visiting for a few days, they will need to resolve any criminal inadmissibility before arriving in Canada.
Fortunately, the Canadian government offers a number of options for overcoming criminal inadmissibility.
Contents
How does a DUI affect Canadian immigration?
Under Canadian immigration law, any charge involving the operation of a motor vehicle while under the influence of alcohol may render a person criminally inadmissible to Canada. The best way to deal with this depends on several factors, including:
- The number and type of offences.
- When the sentence for the offence was completed.
- The seriousness of the offence.
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Type of offence
Drink-driving charges are prosecuted under a variety of names around the world. Examples of charges that may arise from impaired driving include:
- Driving under the influence (DUI)
- Driving while impaired (DWI)
- Driving while ability impaired (DWAI)
- Operating while intoxicated (OWI)
- Operating a motor vehicle while intoxicated (OMVI)
- Reckless driving while intoxicated
- Boating under the influence (BUI)
Canada will examine their criminal record, including arrests, warrants, pending charges and previous convictions. What matters most, however, is not the specific offence but how Canada interprets it against Canadian law.
Greater attention is paid to the equivalent offence in Canada. For example, a United States citizen convicted of drink-driving as a misdemeanour may still be considered criminally inadmissible to Canada because of the equivalent offence under Canadian law.
Having more than one impaired driving charge can significantly affect the chances of being granted temporary entry to Canada. Those with multiple charges or convictions may be regarded as posing a higher risk of reoffending on entry and are subject to closer scrutiny by Canadian immigration officers.
The solution
There are 4 different ways of entering Canada with a prior DUI conviction:
- Temporary Resident Permit (consulate):This permit allows an individual to be admitted to Canada temporarily. Those whose most recent offence occurred less than five years ago may be eligible for a TRP. TRP applications are processed at Canadian visa offices.
- Temporary Resident Permit (port of entry):In certain urgent cases, a TRP may be issued at a Canadian port of entry staffed by Canadian immigration or border officers.
- Criminal rehabilitation:This process allows an individual to resolve their inadmissibility permanently. Those who completed their sentence more than five years ago may be eligible for permanent rehabilitation.
- Deemed rehabilitated:If an individual has only one DUI conviction (from before 2018) and 10 years have passed since the sentence was completed, they may be allowed to enter Canada without going through the rehabilitation process.
Temporary Resident Permit (TRP)
Less than 5 years
If less than five years have passed since the DUI sentence was completed, the individual must apply for a Temporary Resident Permit (TRP) in order to enter Canada lawfully. A TRP is a temporary waiver of inadmissibility (for up to three years) that allows an inadmissible person to enter Canada.
To be granted a TRP, they must have a reason for coming to Canada, and the immigration authorities must be satisfied that they pose no threat to Canadian society. Because this decision involves an element of discretion, a carefully prepared and persuasive TRP application is essential.
5 – 10 years
If more than five but fewer than 10 years have passed since the sentence was completed, the individual may be eligible to apply for criminal rehabilitation once the five-year mark has been reached.
If the application is approved, they will have a clean record and be admissible to Canada. There will no longer be any obstacle arising from the earlier conviction, and they may enter and leave Canada freely, provided they commit no new offence and meet any applicable visa requirements.
To be deemed criminally rehabilitated, they must show that they have changed since the conviction and are assessed as unlikely to reoffend. Approval of the application rests on the immigration authorities’ discretionary assessment. Applicants should therefore prepare a file that matches the criteria the Canadian authorities look for in a rehabilitated individual.
10 years or more
If 10 years or more have passed since the sentence was completed, an inadmissible individual may be considered rehabilitated by the passage of time alone and permitted to enter Canada. This solution is available only where there is a single non-serious conviction on the record.
Even then, however, difficulties may arise. This potential obstacle exists because border officers have considerable discretion in carrying out their duties and may refuse entry even though the person is no longer inadmissible by virtue of being deemed rehabilitated.
Alegal opinion letterfrom an experienced Canadian immigration lawyer can help to avoid this unwelcome outcome.
Entering Canada after serving a sentence
Canada’s laws on driving under the influence (DUI) changed in December 2018. As a result, a DUI is now treated as a serious criminal offence.
Under the previous law, any DUI conviction was cleared from a visitor’s record 10 years after the sentence was completed, allowing them to be deemed rehabilitated for entry to Canada. That is no longer possible.
If they received a DUI conviction after 18 December 2018, they will always need to apply for approval before entering Canada.
Temporary Resident Permit (TRP) and criminal rehabilitation applications offer potential short-term and long-term solutions for a prior DUI conviction. It is always advisable to consult a Canadian immigration lawyer about which application best suits their current needs.
Read more about overcoming the barriers to entering Canada with a criminal record on the Government of Canada websitehere.
Frequently asked questions (FAQ)
If fewer than 10 years have passed since all the requirements of the sentence were completed (probation, fines, licence suspension and so on), applying for a Temporary Resident Permit (TRP) may be the short-term solution for entering Canada temporarily. A TRP may be issued for a stay of up to three years, depending on the purpose and frequency of their trips to Canada.
Temporary Resident Permits are granted only for significant reasons for entry and may be processed at a Canadian consulate or at a port of entry by land, air or sea.
Once at least 5 years have passed since all the requirements of the DUI sentence were completed, they are eligible to apply for criminal rehabilitation. Criminal rehabilitation (individual rehabilitation or deemed rehabilitation) is the permanent solution for individuals who are currently inadmissible to Canada.
Those who are inadmissible to Canada for immigration or entry purposes because of a DUI conviction may still be permitted to enter Canada if they qualify to be deemed rehabilitated. Deemed rehabilitation does not, however, apply to anyone whose DUI conviction occurred after November 2018. This is because of the change in Canadian law at the end of 2018, which increased the penalties for impaired driving.
They may be eligible to be deemed rehabilitated if they were convicted outside Canada of conduct such as a DUI which, had it been committed in Canada, would be equivalent to an indictable offence carrying a sentence of less than ten years, and if they meet the following requirements:
- 10 years have passed since the sentence was completed.
- They have not been convicted outside Canada in the past 10 years of an offence that, had it been committed in Canada, would be an indictable offence, nor of more than one summary offence in the previous ten years.
- They have not been convicted in Canada of any indictable or summary offence in the past 10 years, nor of more than one summary offence in the previous ten years.
Read more about beingdeemed rehabilitated.
Individuals arrested or convicted of driving under the influence (DUI) may be considered criminally inadmissible to Canada. Depending on the date of arrest and the completion of the sentence, they may need to apply for aTemporary Resident Permit (TRP)or criminal rehabilitation in order to enter Canada.
The following United States drink-driving offences may affect their ability to enter Canada:
- Boating under the influence (BUI)
- Driving under the influence (DUI)
- Driving while intoxicated (DWI)
- Driving while impaired (DWI)
- Driving while ability impaired (DWAI)
- Operating while intoxicated (OWI)
- Operating a motor vehicle while intoxicated (OMVI)
- Reckless driving while intoxicated
There are cases in which a dismissal, a conditional discharge or an expungement on an individual’s criminal record in the United States can have a positive effect on their inadmissibility to Canada. It is important to note that, for entry to Canada, Canadian federal law applies, and they should consult an immigration lawyer about their situation.
The answer is yes, particularly where there is an aggravated DUI conviction. Aggravated DUI charges are usually the result of an impaired driver who has:
- A previous DUI conviction.
- No proof of insurance.
- A suspended or revoked driving licence.
- Children in the vehicle with them.
- An extremely high blood alcohol concentration.
- Been involved in an accident causing property damage or bodily injury.
Impaired driving is treated as a serious offence in Canada, so such an offence in Canada can carry a maximum sentence of ten years’ imprisonment.
If they are looking to overcome an aggravated DUI conviction in order to enter Canada, a temporary resident permit (TRP) or criminal rehabilitation may be the solution they need.
When Canadians try to enter the United States, their passport is linked to their RCMP criminal record. Likewise, when entering Canada from the United States, an American must present a US passport or travel document to an immigration officer for inspection.
That person’s passport is linked directly to their FBI record, where recent or past DUI convictions may appear. Even if the impaired driving conviction took place decades ago, it can still show up on this criminal record and affect their wish to enter the country.
DUI convictions are stored indefinitely on their FBI record. The FBI record, which covers offences from every US state, is the main source of criminal history information used by Canadian border patrol. A DUI may often no longer appear on a DMV record in the United States. However, this does not apply to federal background checks.
DUI charges can be reduced to “wet reckless” driving, but even this conviction can make them inadmissible to Canada. Because wet reckless driving (the result of a plea bargain reducing a drink-driving charge where the blood alcohol concentration was at the legal limit) is also treated as equivalent to the indictable offence of impaired driving in Canada, they may need to apply for a temporary resident permit or criminal rehabilitation.
An individual may fly into Canada from an international destination and state that they will not need to drive while in the country. Taxis, ride-sharing services and public transport have become efficient ways of getting around, particularly abroad.
Unfortunately, these circumstances have no bearing on inadmissibility to Canada, even where there is a valid driving licence. Because Canadian border officers cannot guarantee that an individual will not drive after entering Canada, they must assume that driving is possible. As a result, the individual may be found criminally inadmissible to Canada on the basis of a previous DUI conviction or impaired driving charge.
Individuals who need anelectronic travel authorisation (eTA)to visit Canada are required to enter certain personal details and answer a few basic questions about their criminal history. If they submit an eTA request with a DUI conviction, they are likely to be refused unless they are already deemed rehabilitated.
To be admitted to Canada, they must apply for a temporary resident permit (TRP) or criminal rehabilitation. If a TRP is issued by an immigration officer, their eTA will be included automatically. If they have been granted criminal rehabilitation, their past criminal history will not affect their ability to enter Canada.
If they are currently facing a DUI charge with no prior criminal history, they should not be considered inadmissible to Canada. Canadian immigration officers may exercise discretion in these cases, weighing the benefits and risks of allowing entry. Canadian law, not US law, applies in these cases. A legal opinion letter from a Canadian immigration lawyer can often be helpful if they intend to enter Canada with a pending charge.
Some individuals may stop over in Canada when flying from one country to a third country. These transits may be planned, as part of a multi-stop trip, or simply necessary, as part of a series of connecting flights.
If the person does not leave the secure area of the airport, there will be no issue. However, if the person wishes or needs to leave the secure area — to collect luggage, visit the transit city or board a cruise ship, for example — they will have to make sure beforehand that they are admissible to Canada.
In most cases, an individual with a DUI conviction will be considered inadmissible to Canada for 10 years after completing their sentence. However, they may apply for permanent residence in Canada once they have cleared their inadmissibility through an application for criminal rehabilitation. To be eligible to apply for criminal rehabilitation, at least five years must have passed since they completed their sentence.
If they are considering permanent residence with a DUI conviction, we recommend consulting a Canadian immigration lawyer about their options.
If they intend to work in Canada with a DUI conviction, inadmissibility issues are likely to arise. The Canadian government requires and checks criminal history information when an individual applies for a work permit.
In most cases, they must apply for a temporary resident permit (TRP) to accompany the work permit. A longer-term and more permanent solution is an application for criminal rehabilitation, which can ensure there are no inadmissibility issues if they intend to work in Canada in the future.
Current NEXUS card holders are subject to the same criminal inadmissibility rules as any other individual intending to enter Canada. A recent DUI conviction can affect their ability to keep their NEXUS card, particularly if they are refused entry to Canada. US citizens with a previous DUI conviction usually need approved criminal rehabilitation before they can join or rejoin NEXUS.
As a Canadian citizen, they have the right to enter Canada at any time, even with a DUI conviction from the United States. If they have questions about re-entering the United States, we recommend consulting a US immigration lawyer.
Both temporary resident permit (TRP) and criminal rehabilitation applications may be submitted without legal representation. However, a Canadian immigration lawyer can be a valuable resource when an individual is considering entering Canada with a criminal history, and is even more helpful in preparing future applications for entry.
TRP and criminal rehabilitation applications can be difficult to understand, both for applicants and for immigration officers. Otherwise eligible applications are sometimes refused because the applicant did not provide the information requested or explain their situation to the officer.
The purpose of a TRP or criminal rehabilitation application is to argue that the individual needs to enter Canada and poses no risk to Canadians. An experienced lawyer can assist in preparing this argument. A lawyer can advise clients on what evidence to include and help develop and summarise that individual’s case.
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