Why a DUI is not just a DUI
The penalties surrounding Driving under the Influence (DUIs aka Drinking and Driving) under Canadian Law can impact current residents of Canada and foreign nationals looking to immigrate to Canada. The outlook/the way that DUIs are treated around the world can vary, but it is recognized as a serious crime in Canada.
Not to sound too much like a public service announcement (but kind of) the effects and impacts of impaired driving can affect you and everyone around you. Driving under the influence can affect your criminal record, driving record, or in worst-case scenarios, cause bodily harm or death to others. You are about to understand how it can affect your Immigration to Canada prospects.
Regarding the immigration process and status of foreign nationals, permanent residents, and temporary residents or visitors, past DUIs in your country of origin, or Canada for that matter, can severely affect your status. The penalties surrounding DUIs under the Criminal Code have influenced the classification of impaired driving under the Immigration and Refugee Protection Act (IRPA). The new penalties have escalated the offence of impaired driving from criminality to serious criminality under the IRPA. This can severely impact your admissibility into Canada.
Impaired Driving in Canada
Impaired driving is a criminal offence under Canadian Law. If you have been convicted of impaired driving in your country of origin, you may be inadmissible to Canada for serious criminality. In most cases, if you have a charge of serious criminality, you cannot enter Canada. If you are considered inadmissible because of your driving under the influence (DUI) charge, there are options for you to enter Canada temporarily, or to become admissible again.
On December 18, 2018, the penalties for impaired driving increased drastically and mandatory minimum penalties were set in the Criminal Code. Bill C-46 has strengthened the existing impaired driving laws and created one of the strongest laws on DUIs in the world. After the decriminalization of the recreational use of cannabis in 2018, DUIs in Canada now have to address the specifics around drug-impaired driving. Like the blood alcohol levels determined in the Criminal Code, the levels of the drug in the blood are also defined.
The Immigration and Refugee Protection Act (IRPA)
With respect to Immigration and where this is covered under the act you will find this under Section 36(1) of the IRPA states that a permanent resident or foreign national is inadmissible on the grounds of serious criminality for:
The Criminal Code of Canada
Now that we have established the premise under IRPA we then need to look to the criminal code and specifically under Section 320.14 of the Criminal Code states that “everyone commits an offence who operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug.”
In Canada, the penalties for impaired driving can increase depending on many factors, such as blood alcohol levels, operation causing bodily harm, or operation causing death. DUIs are recognized as a serious crime in Canada and are persecuted accordingly under the Criminal Code. Correspondingly, DUIs are considered serious under the IRPA and can affect admissibility immensely.
What does being inadmissible actually mean?
Inadmissibility means that there is a reason that you are not allowed to enter or remain in Canada without a Temporary Resident Permit (see below). These reasons may include medical conditions, criminal convictions, financial concerns, or misrepresentation of information on your application. If you have a prior DUI conviction, this constitutes inadmissibility for reasons of criminality.
I was convicted of driving while impaired. What can I do to enter Canada?
There is no guarantee you will be allowed to enter or live in Canada with a DUI. The final decision rests with the CBSA (Canadian Border Services Officer) officer at the time of entry or with the Visa post should you be applying in advance – more on this later.
A temporary resident permit (TRP) has the purpose of allowing you to overcome an inadmissibility. This is a tool that is discretionary in nature and allows an officer to give you the ability come travel. If you think about it – it makes sense as the law is the law and an officer cannot just say – “Hmm I think this person is a good person I will just let him/her in for this one time.” That would mean that the officer is breaking the law. However, this is a discretionary tool that allows you to enter Canada temporarily and overcome this situation while still meeting the requirements of the law.
Just to ensure that we are on the same page, a TRP is a document issued to a foreign national to enter and remain in Canada for a period of time which can vary and is 100% discretionary. During this time, the foreign national may reside in Canada despite their past criminal record. To get a TRP, you must prove that your reason for traveling to Canada is justified and pay the processing fees (currently $200 Canadian) for your application. As a DUI is recognized as an indictable or summary offence in Canada, depending on the factors of the offence, if your DUI was a serious crime, you have to present a strong, valid reason for traveling to Canada.
A Brief Note on Rehabilitation and Deemed Rehabilitation
Again, there is no guarantee you will be allowed to enter Canada with a DUI record, but you may be deemed rehabilitated if the crime was committed outside of Canada and enough time has passed since you served your sentence. Being deemed rehabilitated depends on the crime you have committed, if enough time has passed since the crime was committed or the sentence was completed, and if you have committed multiple crimes this could actually hinder this process. If you are deemed to be rehabilitated, you will be allowed to enter Canada if other immigration requirements are met. If you are deemed not to be rehabilitated, you are still criminally inadmissible to enter Canada, however you can apply for individual rehabilitation if you are deemed not to be rehabilitated.
Again, there is no guarantee you will be allowed to enter Canada with a DUI but applying for criminal rehabilitation is a way to become admissible, despite your criminal record. Criminal rehabilitation is a way to enter Canada without having to get a TRP every time you enter Canada. You can apply for criminal rehabilitation if you meet the eligibility criteria and at least five years have passed since you committed the crime or completed your sentence. Once you undertake criminal rehabilitation, you may become admissible to Canada, and cannot be denied entry because of your DUI.
If the DUI is one that would be prosecuted summarily in Canada, or if you were convicted of two or more summary offences, you are deemed rehabilitated if at least five years have passed since your imposed sentence. If the DUI is one that would be prosecuted in Canada as an indictable offence, you are deemed rehabilitated if 10 years have passed since your sentence. You may apply for criminal rehabilitation five years after the crime was committed or after you completed your sentence.
This is a whole different area and not something that we will be covering in depth in this article, but we thought that it was worth mentioning as it does provide another avenue for you to explore as a way to overcome being inadmissible for a DUI.
Temporary Resident Permits
As mentioned previously, getting a TRP is a way for you to enter Canada temporarily if you are inadmissible due to criminality or medical reasons. TRPs are granted to individuals for a specific reason and for a specific time. Your visa will indicate a “Date of Issue” and “Expiry Date” OR a “Permit in force from” and a “Permit in force until” date. You are allowed to remain in Canada only so long as your permit is valid.
You can apply for a TRP at a Canadian visa office or a port-of-entry (i.e., at a land border or airport). However, it is recommended that you apply for a TRP in advance so that the Canadian government knows that you are inadmissible and intend to enter Canada.
The person applying for a TRP must demonstrate that they have a good reason to enter Canada. A person who is criminally or medically inadmissible to Canada may not study, work, or visit Canada and apply for permanent residency. However, with a TRP, you may do all the above so long as you show that you intend to stay temporarily. The duration of your TRP may restrict your access to certain services, such as studying and working in Canada. You may only apply for a study or work permit if your TRP has a validity of over six months.
Keep in mind that it is illegal to remain in Canada beyond the validity of your status (i.e., after your permit expires). It is illegal to work in Canada without a work permit. It is illegal to study in Canada without a required study permit.
If you want to extend your stay in Canada, you should apply for another TRP while your current TRP is still valid. While you are waiting on a decision from the immigration officers, you have what is called “implied status.” This status allows you to legally remain in Canada while a decision is being made. If your extension has been approved, you may stay in Canada for as long as the new TRP is valid. If your extension has been rejected, you must leave Canada immediately. Failure to leave Canada will make you non-compliant, which will affect your chances of entering Canada again.
The last note that I would like to bring to your attention is very important and might save you some issues/ embarrassing moments. There is a common misconception that people can travel and just get a TRP when they arrive at the airport. This is common with respect to TRV exempt people (i.e.: people who do not need to get a sticker in their passport prior to travel) and VERY common with Americans who have this notion that they can just show up, pay the $200 and then enter – some refer to this as the “$200 fine” and will say things to the officer – “Yeah Hi I know I have that DUI – can you tell me where I can pay that $200 Fine” – this is a very quick way to make an officer’s blood boil and potentially make your day very uncomfortable.
This is a very dangerous pathway, as I can tell you firsthand that there are several officers who do not take too kindly to this and it is up to them if they will grant you access. Remember the TRP is 100% discretionary.
Lastly, while we are on the topic, it is very important that you are truthful (but we all learned this when we were children) when asked about this, especially with the CBSA Officer. Not only is it an offence to lie to an officer, as it can bring up a whole host of issues, but the officer has access to several different tools at their fingerprints. In the world that we live in, there are a number of computer systems that speak to each other and it is entirely possible for an officer to pull up your criminal record at his/her fingertips from another country or if they are so inclined, they can fingerprint you on the spot and have this checked via places like Interpol.
A Final Word
While having a DUI may affect your chances of getting into Canada permanently, there are several ways for you to enter the country temporarily.
The first way is by getting a Temporary Resident Permit, which will allow you to enter Canada for a specific reason and for a specific time. Depending on the length of your permit, you may also be allowed to apply for a study or work permit. The second and third ways to get into Canada with a DUI is by being “deemed rehabilitated” or by applying for criminal rehabilitation which we have covered above briefly.
Either way, we believe that any immigration application needs to be planned strategically. You must look at the whole process to your individual situation and have a plan to address it proactively. If you have a DUI, then it is not the end of the world, immigration wise. It is important for you to understand your options and plan so that you are not sent home, or worse, have your life taken away.
Should you have any questions about DUIs and coming to Canada, feel free to reach out to us and we can surely give you a confidential personalized opinion as to how this relates to your situation and how best to proceed.
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