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Can I get into a Canada with a DUI?

Can I get into Canada with a DUI conviction?

A DUI is considered an offense of “serious criminality” in Canada.  Therefore, you must have a valid temporary resident permit (TRP) or receive a finding of Criminal Rehabilitation from the Canadian government before you can enter the country.

Does it matter if I have a misdemeanor DUI as opposed to a felony DUI on my record?

No. 

Unlike Washington and other states, Canada does not divide crimes into “felonies” and “misdemeanors.”

Canada separates its crimes into summary, indictable, or hybrid offenses.  Canada also separates its crimes into serious and non-serious offenses.

In Canada, the crime of DUI is a serious hybrid offense.  Under the Immigration and Refugee Protection Act (IRPA), a foreign national is criminally inadmissible for being convicted of an offense of serious criminality such as DUI. 

Therefore, it does not matter whether you were convicted of misdemeanor or felony DUI for purposes of getting into Canada.

Can I get into Canada with a DUI after 10 years has passed?

Not anymore. 

Before December 18, 2018, the crime of DUI in Canada was considered a non-serious hybrid offense, with a maximum possible sentence of five years in prison.  In other words, DUI was not an offense of “serious criminality” for purposes of Canadian immigration law.

For a non-serious, indictable offense, you are automatically deemed rehabilitated and can enter Canada after ten (10) years, assuming you had no other convictions during this time. 

But on December 18, 2018, Parliament passed Bill C-46 into law, removing DUI from the list of non-serious offenses.  Now you must have a valid temporary resident permit or successfully apply for Criminal Rehabilitation before you can enter Canada with a DUI. 

What happens if my DUI conviction was before December 18, 2018?

If you were convicted of DUI before December 18, 2018, you may be eligible for Deemed Rehabilitation without having to formally apply for entry.  This is because the Supreme Court of Canada has ruled that the maximum punishment of a crime at the time of the commission of the offense is the dispositive factor.

However, Canada is still working through the legal consequences of Bill C-46, so you should consult with a Canadian immigration lawyer to see if you qualify for grandfathered Deemed Rehabilitation. 

Can I get into Canada if my DUI was dismissed?

Probably.

A dismissed case is not a conviction for purposes of the IRPA.  But keep in mind that Canadian immigration officers do not need to prove you have a criminal conviction to prevent you from crossing the border.  Rather, they simply need reasonable grounds to believe you have engaged in conduct that would be criminal in Canada.

Once you've been arrested and fingerprinted, a criminal record is created, and Canadian border officials can easily access your entire federal and state criminal background once they swipe your passport. 

There is no presumption of innocence at the Canadian border, so you should come prepared with appropriate documentation and, preferably, a letter from a Canadian immigration lawyer, to prove that you are admissible. 

Can I get into Canada if I pleaded guilty a reduced charge of reckless driving?

Possibly. 

The answer probably depends on two main factors:  were you convicted after trial or did you plead guilty?

When Parliament passed Bill C-46 into law in December 2018, the country not only made DUI a serious offense, but also made “Dangerous Driving” a serious offense.

Under Canadian law, you are guilty of “dangerous operation” if you operate a conveyance “in a manner, that having regards to all of the circumstances, is dangerous to the public.”  That's pretty similar to Washington's reckless driving statute (RCW 46.51.500), under which you can be found guilty or endangering property or the public. 

Therefore, if you go to trial and lose, the jury will likely have heard enough facts that if presented in Canada would result in a guilty verdict in a Canadian courtroom.  And because dangerous driving is a serious offense in Canada, you would likely be criminally inadmissible. 

But pleading guilty may give you a way out.  Here's how. 

In Washington, you can be found guilty of reckless driving for endangering “property,” not necessarily the public.  But in Canada, you must endanger the public to be found guilty. 

For this reason, the Supreme Court of Canada has ruled that Canada's “dangerous driving” statute is narrower than Washington's reckless driving statute, which means that the statutes are not legally equivalent. 

And because the statutes are not legally equivalent, a reckless driving conviction in Washington may not constitute a serious offense in Canada. 

My recommendation:  if you plead guilty, you limit your statement of culpability on your plea statement to the following:  “I drove in a way that endangered property only.”  In other words, the evidence against you (for Canadian immigration purposes) is limited to evidence that may not qualify as a serious crime in Canada, and therefore prevent a finding of criminal inadmissibility against you. 

Of course, I recommend you receive a Legal Opinion letter from a Canadian immigration lawyer supporting your position before you roll the dice at the border. 

Can I get into Canada if I pleaded guilty to a reduced charge of negligent driving in the first degree?

Again, possibly.

Because Washington has separate statutes for “reckless” and “negligent” driving, you can legitimately argue that negligent driving in the first degree is not as serious as “dangerous driving” in Canada, which is a serious crime. 

But here's the counter-argument against you.  Under RCW 46.61.5249, you are guilty of negligent driving in the first degree if you drive a motor vehicle “in a manner that is both negligent and endangers or is likely to endanger person or property … and exhibit the effects of having consumed liquor or an illegal drug.” 

Because the “Neg 1” statute has elements of both alcohol and endangerment, you could run into problems, without a Legal Opinion letter from a Canadian immigration lawyer.  

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