By Patricia Fulton / [email protected]
Special thanks to Joshua Sohn with the Sedai Law Office in Surrey, British Columbia. Without Mr. Sohn's extensive knowledge and generous help, this article could not have been written. Mr. Sohn is available to help our clients prepare the necessary paperwork for entry to Canada and can be reached at 1(844)778-7810 (toll free) or [email protected].
Like many of us, our clients sometimes wish to travel to Canada for recreation or employment. However, with heightened security and enforcement at the border, a trip to Canada is becoming increasingly difficult for clients with criminal charges.
While researching this article, I came to two conclusions.
First, that Canadian immigration law is every bit as confusing and complicated to me as U.S. immigration law. And, second, that border officials have wide discretion in who can and cannot enter Canada.
This discretion is granted both by Canadian law, and by the simple fact that a client denied entry at the border may not have much recourse at that time. This uncertainty makes my head hurt (being a bit anal retentive) and makes it difficult to answer our clients when they ask about traveling to Canada. Hopefully, this article will provide some clarity.
Many convictions in the U.S., including for DUI, Reckless Driving, and Neg. 1, can make a person inadmissible to Canada. Inadmissibility is determined by comparing the elements of the crime in the U.S. with the elements of Canadian criminal offenses.
For clients who have traveled smoothly back and forth to Canada in the past, being refused entry at the border can catch them completely off guard and be frustrating and embarrassing.
It is important that we, as lawyers, advise our clients of the potential issues and how to increase the chances they will be granted entry into Canada.
First, will border officials ask your client about criminal charges and, if so, how should your client respond?
The Canadian immigration official I spoke with at the Blaine border crossing told me that they attempt to be as random as possible when choosing who to question about criminal charges and they do not question everyone. Therefore, your client may sail through the border without a hitch. If a client is not questioned, they should not volunteer any information about prior convictions or pending criminal charges.
If questioned by a border official about criminal matters, your client should answer honestly.
According to the immigration official I contacted, they have access to Washington State DOL records, FBI records, and criminal history data from all states. If a border official is asking about criminal history, she probably has it on a computer screen in front of her.
It is much easier for your client to overcome inadmissibility due to criminality than due to misrepresentation. If denied admission, your client will be better off voluntarily withdrawing their application to enter to avoid having to overcome a removal or exclusion order (which may be very difficult) at some point in the future.
While clients should answer honestly about criminal matters - they should not provide specific details about pending charges.
A client that admits sufficient information to a border official about a pending DUI case can be denied entry even though not convicted.
For clients with pending DUI charges, a letter from their attorney with a basic summary of the procedural status of the case would be helpful. Generally speaking, border officials do not deny entry to someone with a pending DUI. This is true for clients on a deferred prosecution as alcoholism, in and of itself, does not make someone inadmissible.
So, how can your client get into Canada if they have been convicted of a inadmissible offense?
There are four possible options: a temporary resident permit; a criminal rehabilitation; being deemed rehabilitated; and finally, an expungement of the inadmissible conviction.
There are two routes to obtaining a temporary resident permit. First, your client can simply appear at the border and apply for one if denied entry due to a conviction. Border officials have discretion in granting such an application leading to uncertainty for your traveling client. The advantage of an application at the border is that they generally require less paperwork. Such a permit is generally for a single entry.
If a client wishes to obtain a multiple entry permit or wants assurance ahead of time that they will be allowed into Canada, they can apply for a temporary resident permit at a Canadian consulate in the U.S.
If more than five years have passed since the completion of your client's sentence, he or she can apply for criminal rehabilitation. This process generally takes around a year - but will permanently resolve your client's admissibility to Canada. The paperwork required for a temporary resident permit or an application for criminal rehabilitation can be extensive and the help of an attorney experienced with Canadian immigration procedures, is extremely helpful.
If more than ten years have passed since the completion of your client's sentence, they can be deemed rehabilitated at a port of entry to Canada. This is not a formal application process but is assessed by immigration officials at the border and does not happen automatically after ten years. If your client was eligible at ten years but obtains another conviction later - they would now have two convictions and be inadmissible.
Finally, under some circumstances it may be easier and faster to bring a motion to vacate and expunge a conviction in the U.S. to facilitate entry to Canada.
As a DUI conviction cannot be vacated, this would only work for other criminal charges. Canadian officials will generally treat a expungement as the equivalent of no conviction.
Below you will find some information by Joshua B. Sohn of the Embarkation Law Group in Vancouver, BC Canada. We hope you find this helpful.
Being denied entry into Canada based on criminality
The North American Free Trade Agreement (NAFTA) makes it relatively easy for Americans to enter Canada as business visitors or to obtain work permits as intra-company transferees or NAFTA Professionals. One thing that NAFTA does not make easier is criminal inadmissibility.
Many convictions in the U.S., including DUI and Negligent Driving - 1, can make a person inadmissible to Canada. This is because criminal inadmissibility is based on how the equivalent offence is treated in Canada, not in the country where the conviction occurred.
In many cases, an American with a criminal record may have been able to travel in and out of Canada without any problem. This is largely because Canadian border officials do not routinely ask every person entering Canada whether they have a criminal conviction. However, Canadian border officials do have computer access to many U.S. criminal records, and more frequently now Americans with criminal records are experiencing problems at the Canadian border. Being denied entry into Canada can be both embarrassing and costly to a business and trade.
If a border official asks whether you have any criminal convictions, always answer truthfully. Failure to disclose could result in a temporary ban from Canada for misrepresentation, and will make border officials less willing to use discretion to permit entry into Canada.
If a border official finds someone is criminally inadmissible, there are both temporary and permanent ways to overcome the inadmissibility, including the following options:
- Expungement of U.S. convictions, when available, will generally overcome inadmissibility
- Five years after the completion of the sentence, individuals can apply for Criminal Rehabilitation
- Prior to the five years, a person can apply for a Temporary Resident Permit (TRP) which does not do away with the inadmissibility, but allows temporary entry into Canada
- Ten years after the completion of a sentence (where there is a single conviction) a person may be eligible for Deemed Rehabilitation
It is always recommended that you consult a Canadian immigration lawyer about any criminal offense, no matter how minor or how ancient, before trying to enter Canada. The more lead time the better, as the process can time to process.
Joshua B. Sohn
Sedai Law Office
Suite 110 - 10768 Whalley Blvd.
Surrey, BC Canada V3T 0G1
Tel: 1.844.778.7810 (toll free)
Email: [email protected]