Most Americans can freely visit Canada. However, if you have a criminal history, you may be refused entry.  This post describes the circumstances in which a criminal record (including DUIs) will result in your being inadmissible even as a visitor, how long inadmissibility lasts, and what you can do to regain the right to travel freely to Canada.

Were you convicted?

If you were convicted of a crime in the United States or abroad, this will likely make you “criminally inadmissible.”  Even if you were charged with an offence but never convicted, it is a good idea to travel with all your court documents demonstrating that there is no conviction on your record. Carrying all these documents, though not required, is highly recommended to avoid any confusion or refusals at the border as the onus is on the applicant to demonstrate that they are not inadmissible.

Border officers have the option to deny admission on grounds that it is reasonable to believe a person committed an act that would be an offence in Canada, so that pending charges may be grounds for a finding of inadmissibility.  A guilty plea followed by dismissal of charges pursuant to a deferred adjudication scheme may also be considered proof of commission of an act.

Canadian border officers have access to the NCIC which is a national database kept of all criminal convictions in the United States.  Upon presentation of a passport or enhanced drivers license, the database can be accessed, this is how the Canadian border officers know about arrests, charges and convictions for offences in the United States.

If you were convicted of an offence, or if a border officer has reason to believe you committed an offence, you may be inadmissible. Depending on the following factors, you may require an application made the Canadian government, to be able to travel to Canada.  These  factors include the following:

• The nature of your offence: were drugs or weapons involved, did the offence involve a minor, was the offence of a sexual nature – these are all factors that make it more difficult to travel & will likely require permission from the Canadian government, as these types of offences typically carry a maximum sentence of 10 or more years, under Canadian law and are therefore considered “serious criminality”.
• The number of offences on your record: individuals with only one offence may be deemed rehabilitated simply by the passage of time – please see below. A person with more than one conviction will have to apply in order to cross the Canadian border.
• The date of completion of sentence, including payment of fines, completion of probation – this factor determines which application will be applicable to your situation.

If you must apply in order to resolve your admissibility, applications are processed at the discretion of an immigration officer.  The likelihood of success also depends on the factors listed above in addition to the requirements of each application listed below.

Temporary admissibility – Temporary Resident Permits

If you completed all the terms of your sentence 1-5 years ago, you will require a Temporary Resident Permit (TRP). A TRP acts as a temporary pass which allows you to enter Canada, but it does not erase your inadmissibility. For these applications, you need to include a specific reason for travelling to Canada. For example, you have been convicted of a DUI in the last 5 years but need to come to Canada for work purposes, a TRP can help you temporarily overcome your inadmissibility.

A TRP can be used for a wide range of purposes though not as an avenue for permanent residency. When applying for a TRP, you will need to detail the exact circumstances for travelling to Canada. Your need to enter Canada must be greater than the potential threat you pose to Canadian society. Good reasons to travel include business, school, or visiting a spouse or family member. Though you can apply for multiple entry TRPs, you cannot use a TRP to help you enter Canada forever.

Criminal Rehabilitation

If you completed all the terms of your sentence 5-10 years ago, you are eligible to apply for Criminal Rehabilitation. This application is a permanent solution which clears your criminal inadmissibility and automatically makes you eligible for multiple entries into Canada. Processing times are longer for this application, but Criminal Rehabilitation is valid for the rest of an applicant’s life (unless another offense is committed). In this application the officer is looking to see that the applicant has taken positive steps to rehabilitate themselves, such as following substance abuse programs or joining AA, for example.  The eligibility period is required as the Canadian government wants to ensure that there are no offences within the last 5 years before they remove your inadmissibility permanently.  Due to processing times, if you have urgent travel, it is recommended to also apply for a TRP while you await the approval of your Criminal Rehabilitation. These permits are good if you travel to Canada frequently.

“Deemed Rehabilitated”

If you only have one offence on your record, the sentence was completed over 10 years ago, and the offence was “non-serious” (punishable by less than ten years in prison under Canadian law), you will be “Deemed Rehabilitated.” This means that you will neither require a TRP nor Criminal Rehabilitation. In these specific cases, you will have been deemed criminally rehabilitated simply by the passage of time. However, Deemed Rehabilitation can only occur under these specific circumstances, so be sure to check your record carefully.

All of these applications can be done without the assistance of an attorney, however if you choose to seek the help & advice of an attorney, you should be aware that only a Canadian lawyer, notary or consultant is legally authorized to represent you.  It is highly recommended to obtain a national fingerprint based background check from the FBI, which will show all of the offences on the applicant’s record, going back to their 18^th birthday.   In cases where an application is not required (ie: if a person is deemed rehabilitated by the passage of time or there was no conviction) it is recommended to carry a legal opinion letter, written by a Canadian attorney who has reviewed your record, as well as your court documents, to avoid any hassle at the border.

Severity of Offences and Border Security

The decision to admit a foreign national to Canada is entirely at the discretion of the Canadian immigration officer at the border.  Though you can be denied entry for any level of criminal activity, your likelihood of being able to enter Canada declines the more offences you have and the gravity of the offences. Individuals are assessed at the border on a case-by-case basis based on the information provided to the Canadian Border Services Agency. As such, sometimes individuals with lesser offences get turned away at the border if they are not carrying any kind of a permit with them. Canadian border officials have access to the National Crime Information Centre database which logs all crimes monitored by the FBI and as such will have a full list of crimes committed in the United States. As such, it is always a good idea to apply for one of these permits if you have a criminal history, or if you are on parole or probation.

The severity of a foreign offence is weighed based on its equivalence under Canadian law. In the United States, offences are either felonies or misdemeanors which translate roughly to indictable and summary offences in Canada (note however that this is the general process—you should always check for your specific offence). For example, a single DUI in the US is generally considered a misdemeanor, and in Canada would be a summary offence unless someone was injured. Hybrid offences for charges like assault are left to the discretion of the prosecutor. As such, even if someone has only been convicted of a misdemeanor in the United States, it may still be an indictable offence in Canada and they may be inadmissible.

DUIs

DUI convictions and all variations are grounds for inadmissibility to Canada, as the offence is a hybrid offence under Canadian law. Individuals with a DUI conviction (or DWI, OWI, OMVI, DWAI or any other similar driving offence) will require either a TRP or Criminal Rehabilitation to enter Canada. Even though these may be considered as misdemeanors in some cases or in some U.S. states, they will render an individual criminally inadmissible to Canada.

Completing your application

Though the applications can be done by the applicants, they are complicated and lengthy. One mistake on an application can lead to a refusal or delays of several months. As such, though it is not required to hire an attorney, it can be greatly beneficial. Make sure you utilize an attorney who is in good legal standing with their provincial Bar Association.

Additional travel tips

• Don’t forget that all adults travelling between Canada and the United States will require a passport! (Note: Children under the age of 15 can travel with a certified copy of their birth certificate if accompanied by their parents on land travel only.)
• If you travel frequently and don’t have a criminal record, you may want to get a NEXUS card which will help facilitate travel at ports of entry between Canada and the United States.
• Be prepared to declare all items of value—fines are much more costly than the duty and taxes you would otherwise have to pay.
• If travelling by land, check your border wait times ahead of time to ensure minimal delays and smooth passage.