For Americans planning to travel to Canada with a criminal record, particularly a DUI conviction, understanding Canada’s criminal classification system is key to traveling without a hitch. Many US citizens are surprised to learn that their DUI conviction could prevent them from crossing the Canadian border, regardless of whether it’s classified as a felony or misdemeanor in the United States.
Criminal Inadmissibility to Canada
Canada has strict border control policies regarding travelers with criminal records to protect public safety and national security. Under Canadian immigration law, foreign nationals may be deemed “criminally inadmissible” if they have been convicted of certain offenses, either in Canada or abroad.
The rules that determine what makes someone criminally inadmissible to Canada are set out in the Immigration and Refugee Protection Act (IRPA):
- Inadmissibility on the grounds of Serious Criminality – If you’ve ever been convicted of an act that would be punishable by a maximum term of imprisonment of 10 years or more if committed in Canada.
- Inadmissibility on the grounds of Criminality – Having been convicted of an act outside of Canada that, if committed in Canada, would be punishable by way of indictment OR having been convicted outside Canada of any two offenses not arising out of a single occurrence (summary or indictable).
An indictable offense is a more serious offense, similar to a felony in the US, while a summary offense is generally less serious and more like a US misdemeanor. When determining criminal admissibility, Canadian law states that ‘hybrid offenses’ (those that can be treated as either) should always treated as indictable offenses.
The Canadian government evaluates foreign convictions by determining their equivalent offense under Canadian law. This means that even if an offense is considered minor in your home country, it could result in inadmissibility if treated more seriously under Canadian law.
Is a DUI a Felony in Canada?
Canada doesn’t use the terms “felony” or “misdemeanor” in its legal system. Instead, Canadian criminal offenses are classified as either:
- Summary offenses (less serious crimes)
- Indictable offenses (more serious crimes)
- Hybrid offenses (can be prosecuted either way)
As of December 18, 2018, driving under the influence (DUI) is considered a serious crime in Canada, punishable by up to 10 years in prison. It is a ‘hybrid offense’ that can prosecuted either way, meaning for immigration purposes, it is always classified as an indictable offense.
This means any American DUI will be treated as ‘serious criminality’ for immigration purposes and make an individual automatically criminally inadmissible to Canada. The only way to overcome this inadmissibility is to first obtain a Temporary Resident Permit or Criminal Rehabilitation before attempting to enter Canada.
If you have a single conviction of this type from before December 2018, there is still a third option available – “grandfathered” Deemed Rehabilitation – which means you will automatically become admissible again once 10 years have passed since the date you completed all sentencing requirements.
Entry into Canada with Felony vs Misdemeanor DUI
When it comes to entering Canada, the distinction between a felony and a misdemeanor DUI in the United States becomes largely irrelevant. Here’s why:
- Both felony and misdemeanor DUIs make you criminally inadmissible to Canada
- The severity of the US classification doesn’t significantly impact your inadmissibility status
- Even a first-time misdemeanor DUI can result in being denied entry at the Canadian border
Under current Canadian law, both felony and misdemeanor DUIs are treated as serious offenses that render foreign nationals inadmissible unless they take specific steps to overcome their inadmissibility through either a Temporary Resident Permit (TRP) or Criminal Rehabilitation. This applies regardless of how much time has passed since your conviction.
Consequences of Getting a DUI in Canada
If you get convicted of DUI while in Canada as a foreign national, it could have a wide range of consequences, including for your immigration or visa status:
- Mandatory minimum fine of $1,000 for first offense
- Potential jail time ranging from 30 days to 10 years
- Mandatory immediate license suspension for at least 1 year
- Vehicle impoundment
- Potential mandatory enrollment in education programs
- Possible deportation and designation as criminally inadmissible
- Possible loss of PR status
Foreign nationals who receive a DUI while in Canada may face removal proceedings and be barred from re-entering the country. The Canadian Border Services Agency (CBSA) takes these offenses very seriously, often leading to immediate detention and removal.
Overcoming Criminal Inadmissibility
Getting into Canada with a previous DUI record requires you to apply for a TRP or Criminal Rehabilitation. Both application processes involve non-refundable fees and there is no guarantee that they will be approved.
Temporary Resident Permit (TRP)
A TRP is a short-term solution for individuals with a DUI conviction who wish to enter Canada. This permit allows you to overcome the inadmissibility caused by your conviction for a specified duration. TRPs come in single or multiple-entry variants and expire once the designated period has come to an end. The compelling reason for granting the permit must outweigh the potential risk you might pose to Canadian society.
Dogen Law can assist you in determining your eligibility for a TRP, guiding you through the application process, and ensuring that all necessary documents are prepared accurately. With a TRP, you can confidently plan your visit to Canada.
Criminal Rehabilitation
Criminal Rehabilitation is a more permanent solution for those seeking entry into Canada with a DUI conviction. By demonstrating that you’ve undergone a positive transformation and rehabilitation since your offense, you can become permanently admissible to the country again, provided you do not pick up any additional criminal convictions.
Our team at Dogen Law can help you navigate the complex requirements of the Criminal Rehabilitation process. We’ll work with you to compile a strong application that showcases your commitment to leading a law-abiding life.
Deemed Rehabilitation
An automatic form of rehabilitation that occurs with the passage of time. If you were convicted of a single drunk driving or intoxicated driving offense before December 2018, you will automatically become admissible to Canada once 10 years have passed since you completed your sentence.
If you were convicted after this date, this option no longer applies due to changes in Canada’s impaired driving laws. This process is free of charge.
Frequently Asked Questions – Quick Answers
Is a DUI a felony in the USA?
In the United States, whether a DUI is classified as a felony or misdemeanor depends on several factors, including the number of previous offenses, blood alcohol content level, presence of injuries or fatalities, and varying state laws.
However, whether you have a misdemeanor or felony DUI on your criminal record does not matter when it comes to gaining entry to Canada. Both will automatically disqualify you by making you criminally inadmissible unless you have either a TRP or Criminal Rehabilitation.
Can I still go to Canada if I have a DUI conviction?
It is possible to still travel to Canada with a DUI on your criminal record, but a wide range of special rules and permissions apply. You will need to demonstrate in your application for a TRP or Criminal Rehabilitation that you have been rehabilitated and no longer pose a risk of engaging in criminal behavior while in Canada.
