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Canadian Consequences

By on Mar 1, 2012 | 1 comment

One of my goals in this blog is to emphasize how devastating the effects of the criminal justice system can be. That process start with being charged with a crime, which is inordinately stressful. One of my roles as a criminal defense attorney is to ease some of that stress and give the client the heads-up on the process as their case winds their way through the system.

Another role, of course, is to get them the best possible outcome on their matter. Some people, in an effort to avoid the gravity of the situation, assume that a criminal conviction “isn’t a big deal.” Well, it is. It’s an enormous deal, with enormous consequences.

The immediate consequences are obvious enough: the final sentence. As I’ve explained previously, the maximum sentence for a crime depends on its classification. More often than not though, even if a person gets the minimum sentence, they will also be on some kind of probation. And as that early post indicates, being on probation is no joke either.

But regardless of all the immediate consequences of a criminal conviction, there are plenty of collateral effects as well. These can include employment and housing concerns, ineligibility to apply for federal financial aid or vote or obtain a firearm, or even deportation for non-citizens. But today’s post revolves around a collateral consequence particularly relevant to Washington residents and other folks in the northern parts of the United States: Canada-based criminal inadmissibility.

I’ll start off by saying I don’t practice Canadian immigration law, which is rather specialized. But I’ve been doing this long enough that I can give some background info for people attempting to enter Canada after being subject to the criminal process.

What is Criminal Inadmissibility?

Countries have the right to protect their borders. One way they do this is to limit people from entering their territory. These limitations take a variety of forms.

A country can forbid people from a certain country from entering at all, e.g. Malaysia not allowing Israeli citizens to visit. A country can limit the length of a stay. For example the United States has a B1/B2 (tourist visa), which generally last six months. An F1 (student) visa last as long as the academic program, plus six months, but requires many more hoops to jump through to acquire. A country can refuse you if you’re carrying dangerous contraband, e.g. drugs, weapons, or unnatural flora or fauna. And needless to say, you must provide proper documentation that you are who you say you are.

But the issue for today’s post is that Canada has rules that bar to entry of people convicted of crimes. More than most countries, Canada is particularly vehement about denying entry to foreigners convicted of local crimes. This “local” phrasing means the person can and has been completely law-abiding while in Canada, but because of running afoul of the law in their homeland, Canada doesn’t want to take the chance.

To be sure, being convicted of a crime does not mean that you will necessarily be barred from entering Canada. I’ll get to the specific crimes that do trigger inadmissibility in a moment, but even if your history qualifies, that’s not to say you will be turned away at the border. It depends on how invasive the border patrol is being that day.

If you’re flying into Canada, your bags may or may not be searched. But you will almost certainly have your passport scanned which, depending where someone is in the criminal process, may turn up criminal history. If you’re found to be inadmissible at the border after a flight, you’ll likely be put on a plane headed back home.

If you’re driving into Canada, as a lot of Washington residents tend to do, the process is less clear. Your car may be searched, or it may not be. Your passport may be scanned, or it may not be. In my admittedly limited experience, your vehicle is most likely to be searched if it’s a larger vehicle, including busses, vans, etc. Family cars are less likely to be scanned or searched, but that’s hardly a guarantee. In any event, if someone in the party is found inadmissible, they will not be allowed to enter Canada. The rest of the party will have to decide whether and how to continue with the trip. Whether you fly or drive, being turned away at the border will be very disruptive for your itinerary. Not knowing that you’re criminally inadmissible is a nasty surprise.

What crimes trigger inadmissibility?

Canada, perhaps insensitively, does not have a criminal system identical to ours. Canada’s criminal system contains summary offenses and indictable offenses, which are roughly analogous to misdemeanors and felonies, respectively. But what constitutes a misdemeanor in the United States may very well constitute an indictable offense in Canada.

And that distinction is relevant because any indictable offense in Canada will cause border-rejection, meaning you will not be allowed to enter the country. What includes an indictable offense? Domestic Violence Assault 4, DUI, Theft 3, Possession of less than 40 grams of Marijuana are all misdemeanors or gross misdemeanors in Washington, but indictable offenses in Canada. Each of these crimes carry a maximum sentence of 90 or 364 days in Washington, but between two and five years in Canada.

One interesting point about inadmissibility is that it will trigger even if you’ve just been charged. Thus before there has been resolution you can still be barred from entry. The records Canada is relying on may or may not reflect your open charges. So be careful about making travel plans if you have open allegations. And if you just got a dismissal and want to go to Ottawa to celebrate, best bring a copy of your dismissal order in case their records haven’t been recently updated.  

In any event the most common crime for Washington citizens is DUI. A DUI conviction will absolutely render you inadmissible to visit Canada, even if it occurred decades ago. A deferral that results in dismissal will not render you inadmissible, but a DUI that is reduced to a lower charge may. So if travelling to Canada is an important part of your life, think carefully about the results of a DUI conviction. You should get an experienced criminal defense attorney if you’re facing any criminal charge, including a DUI.

There’s a big corollary we can take from this, namely Canadians take their DUIs very seriously. Be extra, super careful about driving around Vancouver or Montreal after knocking back a few.    

Overcoming inadmissibility

The best way to overcome criminal admissibility is not to get a conviction in the first place. As I said in the beginning, a criminal record exposes a person to a host of issues, Canadian travel included. But if mistakes were made and a conviction exists, Canadian travel may still be possible.

The first question is to determine what conviction you have. The general rule is that you’re inadmissible, but eligible for re-admission, if the crime you were convicted of is indictable but has a maximum sentence of less than ten years. Yes this means slogging through the Canadian criminal code to finding your conviction’s analogue. Help yourself.

The simplest way to overcome inadmissibility is to get a Temporary Resident Permit (TRP). A TRP is issued at the border, completely at the discretion of the border officer. If they decide your reason to enter Canada is compelling enough, they’ll issue you one specifically for the length of your stay. They generally cost $200 and if you’ve gotten one in the past, you are unlikely to be able to get another. But in a pinch, the option exists.

The second method is to apply for rehabilitation. Anyone is eligible for this process if they’ve committed no more than one crime in the United States, and five years have passed from the end of their sentence, which means five years have passed from the end of their probation. That’s a lot of time for DUIs in Washington, which generally have probation lengths of five years. That means a total of ten years will have to pass between date of conviction and eligibility to apply for rehabilitation. Technically this process is open for any crime, but some felonies have continuous oversight, e.g. sex crimes, which mean a sentence is never completed. And some crimes, e.g. murder, felony assault, felony theft, are probably too extreme for an application to be granted anyway.

If the appropriate time has passed, then one must obtain background checks from every jurisdiction the person has lived in since the crime, as well as FBI checks, all indicating that this is the person’s only crime. Then they have to mail those documents, plus the application, plus a fee of either $200 or $1,000 (depending on the severity of the crime), to the Canadian Immigration Board. The fees are non-refundable, and applications take about a year to process.

The final option is what’s called deemed rehabilitation. This process is only available for crimes with maximum Canadian sentences of less than ten years, i.e. nothing major. This one works for people if ten years have passed since the last day of their sentence, which again includes the length of probation, so for a DUI it would be 15 years. The person has to gather the same documents, but instead of paying a fee and waiting for the application to be processed, they can go directly to the border and have their case heard by an agent. If the agent finds the person rehabilitated, through a blameless post-conviction life, ties to the community, personal growth, etc., than they may be deemed rehabilitated and excised of inadmissibility. There’s no cost for this process, aside from getting one’s self to the border.  

And aside from barrels and Niagara Falls, that’s it!

Current developments

You may think that all this away-turning at the border has cost Canada thousands of dollars of tourism money. Considering Washington filed 38,000 DUI cases alone in 2010, you’d be right. Because of that there are talks of relaxing the process of getting into Canada for certain offenses.

The Minnesota Star Tribune has an article about potential developments in this area. The article discusses a plan that if someone has a single crime and served no time in jail, they can get an expedited TRP at no cost. There are a couple problems though.

For one the process remains completely discretionary, so an agent doesn’t have to issue a TRP. But past that, DUIs in Washington have a minimum sentence of a single day in jail. That means that the sentence for the conviction will always include a jail term, which according to the article, makes the person ineligible for the relaxed rules anyway.

I think as time goes on Canada will relax their rules further and allow people with minimal convictions to visit, as most countries do. But until then, if you do have a conviction, or even open charges, be very careful about planning an expensive trip to Canada. You may be getting some bad news.

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  • Linda

    Good article.

The facts and circumstances of your case may differ from the matters in which results and testimonials have been provided. Every case is different, and each client’s case must be evaluated and handled on its own merits.