Traveling to Canada after a California DUI Conviction

Posted by Jon Ibanez on July 6th, 2015

I’ve recently represented several people in California DUI cases who, after having been convicted, needed to travel to Canada. They were all surprised to learn that traveling to visit our neighbors to the north after a California DUI conviction was not as easy as they thought.

Canada considers driving under the influence as a very serious crime, so much so in fact, that they consider it an “indictable offense.” This is the functional equivalent to a felony under California law. Unlike California where a DUI is, for the most part, considered a misdemeanor for a first, second and third offense and punishable up to a year in jail, as an indictable offense in Canada, a DUI is punishable up to five years in jail.

Because all DUIs are, for all intents and purposes, considered felonies, anybody convicted of a DUI or even a wet reckless is excludable from entry into Canada under their Immigration Act.

Not all hope is lost. There are several exceptions where Canadian law allows a non-Canadian entry into the country despite a California DUI conviction.

The first exception is to be “deemed rehabilitated.” To be deemed rehabilitated, the maximum term of imprisonment for the DUI conviction was less than 10 years, the sentence for the California DUI conviction was completed at least 10 years ago, and no other indictable offenses were committed during those 10 years. If someone meets these criteria, they do not need to do anything further to gain entry into Canada, although it would be a good idea to have proof of this when trying to cross the border.

The second way to gain entry into Canada notwithstanding a California DUI conviction is “individual rehabilitation,” otherwise known as “rehabilitation by application.” The first requirement is that at least five years must have passed since the completion of the sentence for a California DUI conviction. It gets tricky however in trying to calculate the five-year wait period. The five-year wait period can be calculated in the following ways: 1.) five years from the date of sentencing if given a suspended sentence; 2.) five years from the date a fine was paid if given a suspended sentence and a fine; 3.) five years from the end of a prison term with no parole; 4.) five years from the end of parole or probation if sentenced to either; or 5.) five years from the end of a driver’s license suspension.

If someone meets the criteria needed for individual rehabilitation, they will need to fill out an application and submit it to a Canadian visa office located in the U.S. The application requires the applicant to explain why they are rehabilitated. The submission of the application for individual rehabilitation also requires a non-refundable application fee.

Another option to enter Canada even if someone has a California DUI conviction on their record is to obtain an expungement of the conviction. An expungement is the equivalent to a Canadian “record suspension.” Under Canadian law, a person cannot be denied entry for a DUI conviction where a record suspension has been issued for that conviction. To be eligible for an expungement of a California DUI conviction, a person must have successfully completed probation and must not have any criminal actions pending against them including criminal charges, probation on another case, or serving a sentence for another case.

While an expungement is the most common and efficient way to obtain entry into Canada, it would be wise to consult an immigration attorney to ensure that the expungement will meet the requirements of a “record suspension.”

The last way to enter Canada with a California DUI conviction on the record is to apply for a “temporary resident permit.” A temporary resident permit may be given when an applicant must enter Canada for a specific purpose and only for a limited period of time. The applicant must also so that the need to enter Canada must outweigh any risk to Canadian public safety. Like individual rehabilitation, an applicant must pay a non-refundable application fee.

Anyone wishing to enter Canada following a California DUI conviction through any of the abovementioned avenues should consult with both a criminal defense attorney as well as an immigration attorney.

  • tfsn

    a saw a comment on another site about this that raised a number of issues:

    “I dealt with this issue about a year ago. I looked at the forms to fill
    out, very long. I didn’t like the idea of having to bother people for
    references, this is an issue I’ve never evaded, but i’ve never brought
    it up when it wasn’t necessary either. I didn’t like the idea of
    dredging up dirt on myself.

    Secondly, I didn’t like that I had to do research for the misdemeanor,
    and match it to one of their ‘felonies’, then plead to them for a
    ‘pardon’. I didn’t like it philosophically (I’ve never been to Canada
    before, why do I need a ‘pardon’ from them? Seems like retroactive
    inflation of the infraction (from misdemeanor to felony),
    extrateritoriality, and double jeopardy. I am not, nor have I ever been,
    considered a felon. I don’t like the idea of refering to myself as a
    ‘felon’ in *any* context (which you absolutely do when you fill out that
    form), it’s extremely degrading (a degradation that had NOT been
    prescribed by the jurisdiction that originally made the charge against
    me), and I think there is some legal danger in doing so

    Also, and there’s no way to prove this one way or another, it’s raw
    speculation, how do I know, that by ‘confessing to a felony’ to Canada,
    could not be viewed as having a Canadians felony record to some 3rd
    country someday in the future? Sure it’s been pardoned, but Canada still
    excludes people with deferred judgements (basically a pardon). How do I
    know that 10 years in the future, in some asian country i wont be
    excluded at 2 am in the morning by some customs guy who barely speaks
    English, becasue he thinks I have a Canadian felony record? (and if he
    thought i just had an american misdemeanor (which is what it really is),
    i would have been waved through?) Unlikely perhaps, but a complete
    disaster if it happend, and how can anyone prove to me that it wont?
    10-15 years ago, who saw THIS (canadian border DUI) situation coming?
    And what if your request for rehabilitation is denied for some reason?
    Are you now an ‘unpardoned’ Canadian felon?

    Can anyone really guarantee me that there will NEVER be a
    misunderstanding or administrative screwup anywhere arising from
    applying for ‘rehabilitation’ from Canada? Maybe others have a lot more
    faith in bureaucracies and computers than I do. You have to believe that
    this data will always be correctly converted and interpreted wherever
    it ends up, passing through different agencies, nations, languages and
    differing computer systems.

    So how did I deal with it? Our family went to Zion National park, and
    Bryce in Utah – had a fantastic trip – and kept our money in our own

    Other people have to decide for themselves, they may have compelling
    reasons to deal with it (people in Northern Minn for example, ie Canada
    is somewhat ‘local’ to you), or a family cottage

    But I didn’t – there’s nothing Canada has to offer me, that’s worth
    being classified as a felon for. If I never go there, I’ll never be one”

  • jon

    “Our family went to Zion National park, and
    Bryce in Utah – had a fantastic trip – and kept our money in our own

    Yup…fuck Canada.