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Can I get into Canada with a Washington criminal record?

Canada has strict immigration laws.  If you have a criminal record, you may not be able to enter Canada, even if it's for just a few hours.

Here are 10 of the most commonly asked questions about getting in to Canada with a criminal record.  

1. How do I know if I can enter Canada with a criminal record?

To answer this question, we need to understand two basic areas of Canadian law:

  • Canadian criminal law
  • Canada's Immigration and Refugee Protection Act

Canadian Criminal Law: The basics

Unlike the United States, Canada does not use the terms “felony” and “misdemeanor” to describe its crimes.

Instead, crimes fall into one of three categories:  indictable offenses, hybrid offenses, and summary offenses.

Most crimes are contained within the Canadian Criminal Code (CCC) and more specific statutes, such as the Firearms Act and the Controlled Drugs and Substances Act.

Summary Offenses

Summary offenses are minor offenses—the least serious crimes in Canada.  They carry a maximum possible penalty of 6 months in jail and $5,000 fine.  If you're charged with a summary offense, you do not have the right to a jury trial. 

Summary offenses include the following:

  • Disorderly conduct
  • Possession of marijuana over 30 grams
  • Solicitation of prostitution
  • Trespassing at night
  • Indecent exposure
  • Contempt of court

To some extent, summary offenses are the equivalent of simple misdemeanors in Washington, the least serious crimes under Washington law.  But many misdemeanors in Washington (especially gross misdemeanors) would be classified as indictable offenses in Canada. 

There are very few purely summary crimes.  The vast majority of crimes in Canada are either indictable or hybrid offenses.

Indictable Offenses

Indictable crimes are the most serious crimes in Canada.  The maximum penalties for these crimes vary, but most range between 10 years and life in prison. 

Indictable offenses are most similar to Class A or B felonies in Washington, which carry a maximum possible penalty of life in prison and ten years in prison, respectively.  But some class C felonies in Washington—which carry a maximum of 5 years in prison—would also qualify as indictable offenses in Canada. 

The most common indictable offenses include the following:

  • Murder
  • Manslaughter
  • Motor vehicle homicide
  • Robbery
  • Arson
  • Kidnapping
  • Aggravated sexual assault
  • Aggravated assault
  • Drug trafficking (cocaine, heroin, methamphetamine)
  • Perjury
Hybrid Offenses

A hybrid offense can be an indictable offense (serious crime) or a summary offense (minor crime) depending on the facts and circumstances and the accused's criminal record.  The Crown (i.e. the Canadian government) decides whether to prosecute “hybrid” crimes via indictment or via summary process.

The vast majority of crimes in Canada are hybrid crimes.  DUI, for example, is a hybrid crime in Canada. 

For this reason, the maximum penalties for these crimes vary widely (between 2 and 14 years), depending on how the Crown charges you.

Hybrid crimes include:

  • DUI and DUI-related crimes (e.g. refusing a breathalyzer test)
  • Hit and Run
  • Dangerous driving
  • Assault offenses
  • Drug possession
  • Harassment
  • Identity theft
  • Theft crimes

The Immigration and Refugee Protection Act

The Immigration and Refugee Protection Act (IRPA) determines whether U.S. citizens or permanent residents can visit or immigrate to Canada. 

Section 36 of the IRPA tells you whether you can enter Canada based on your criminal record.  If you are barred from entry, you are considered criminally inadmissible.

Under Section 36, the key distinction is whether you have committed a serious offense or a non-serious offense.

Serious Criminality

Offenses of “serious criminality” carry a maximum penalty of at least 10 years in prison.

Examples

  • Murder
  • Arson
  • Vehicular Homicide
  • Breaking & Entering
  • Robbery
  • Kidnapping
  • DUI
  • Dangerous Driving
  • Drug Trafficking
  • Drug possession (large quantities)
  • Use of Firearm in commission of Felony
  • Distributing child pornography
  • Fraud over $5,000

Criminality

These less serious offenses carry a maximum possible penalty of less than 10 years in prison.

Examples

  • Theft under $5,000
  • Simple assault
  • Summary offenses (i.e. minor offenses)

So can I get in?

 Under Section 36 of the IRPA, the following people are criminally inadmissible to enter Canada based on their criminal record:

  • You were convicted of a crime in the United States that would be considered an indictable offense in Canada (either serious or non-serious)
  • You committed a criminal act in the United States that would be considered an indictable offense if you committed the act in Canada (either serious or non-serious)
  • You were convicted of two or more offenses in the United States (not arising out of the same incident) that would be considered summary offenses in Canada

The following point is crucial:  Under the IRPA, an indictable offense means both indictable and hybrid offenses.  In other words, an indictable offense under the IRPA covers the vast majority of crimes in Canada.

Three Key Takeaways

  • Indictable offenses always result in criminal inadmissibility
  • You are not criminally inadmissible for committing a single summary offense
  • Because the vast majority of crimes in Canada are indictable for purposes of the IRPA, you are subject to being automatically denied entry based on the vast majority of Canadian crimes

2. How do I know if the crime I committed in Washington is a crime in Canada?

Unfortunately, this is not an easy question.   

To be considered a crime for immigration purposes, the crime under Washington law must be legally equivalent to a crime in Canada.  This is a two-part test:

  • You compare the statutory language to determine the essential elements of the crimes; and / or
  • You consider whether the evidence admitted in your trial in Washington would have been sufficient to find you guilty if you were tried in Canada

Example #1: DUI Statutes

In Washington, you are guilty of DUI for driving “under the influence” of any intoxicating liquor or drug, or a combination of both.  (RCW 46.61.502).

In Canada, you are guilty of impaired driving if you operate “any conveyance (i.e. car, vessel) while your “ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug.” (CCC 320.14). 

As you can see, the Washington and Canadian statutes are virtually identical.  To be convicted of DUI in both Canada and Washington, the government has to prove that you (1) drove a motor vehicle / conveyance; and (2) you were under the influence of drugs or alcohol.

The crimes are criminally equivalent under the first part of the test. 

Example #2: Reckless Driving Trial

You go to trial on your reckless driving charge in King County District Court.  At trial, the State presents evidence that you were speeding through a school zone at 8:00 am in Seattle and almost hit several children and their parents on their way to school.  The jury finds your guilty. 

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.” (CCC 320.13).

The evidence presented in King County, therefore, would have been sufficient for a Canadian judge or jury to find you guilty of dangerous driving in Canada. 

In this case, the crimes are criminally equivalent under the second part of the test.

3. Can I get into Canada with a DUI conviction?

No, unless you have a temporary permit or apply for rehabilitation with the Canadian government.

In Canada, DUI is an offense of serious criminality.  You are, therefore, inadmissible if you were convicted of a DUI in Washington.

To enter Canada with a DUI, you must have a valid Temporary Resident Permit (TRP) or successfully apply for Criminal Rehabilitation with the Canadian government.

Before December 18, 2018, however, DUI was not an offense of “serious criminality” under Canadian law, which means you may be eligible if you have spent 10 crime-free years in the community since you completed your sentence. 

FAQ: Getting into Canada with a DUI

4. Can I get into Canada with a felony conviction?

No, unless you have a temporary permit or apply for criminal rehabilitation.

Canada does not use the terms felonies and misdemeanors, but instead divides crimes into summary, indictable, and hybrid offenses, and also separates crimes into serious and non-serious offenses.

Under the IRPA, a serious offense carries a maximum penalty of at least 10 years in prison.  In Washington, class A felonies carry a maximum sentence of life in prison, and class B felonies carry a maximum 10 years in prison. 

Therefore, you are likely inadmissible based on committing most felonies in Washington—assuming they're legally equivalent, of course. 

5. Can I get into Canada with a misdemeanor conviction?

Maybe, without going through rehabilitation. 

Misdemeanor crimes in Washington are most similar to summary (i.e. minor) offenses in Canad.

But remember that there are very pure summary offenses, because the Crown can prosecute many of them via indictment.

In fact, many Washington misdemeanors are actually hybrid crimes in Canada.  And because hybrid crimes are indictable offenses under the IRPA, just one misdemeanor conviction could prevent you from crossing the border. 

Example: You plead guilty to resisting arrest (a simple misdemeanor) in Clark County District Court and get no jail time.  In Canada, resisting arrest is a hybrid offense, which means iit s an indictable offense (the most serious) for immigration purposes.  You are criminally inadmissible based on this one conviction.

6. Can I get into Canada with a marijuana conviction?

Probably, depending on when you were convicted of possessing marijuana. 

Washington decriminalized marijuana possession in November 2012.

Canada also decriminalized simple marijuana possession (less than 30 grams) on October 17, 2018, under the New Canadian Cannabis Act.  Before October 17, 2018, simple possession of less than 30 grams of marijuana was a summary offense in Canada.

If you live in Washington, you are probably safe, because marijuana possession has been legal for almost a decade. 

However, keep in mind that possession of over 30 grams or trafficking in marijuana is still illegal in Canada—they are, in fact, both indictable offenses.

7. Can I get into Canada if I have vacated convictions?

Yes, assuming you are otherwise eligible. 

Vacating a criminal conviction means your conviction is officially removed from your criminal record.  Vacated convictions do not show up on an FBI or Washington State Patrol (WSP) background check.  Under Washington law, a vacated conviction is no longer a conviction. 

Therefore, a vacated conviction is the equivalent of a not guilty or a dismissed case in Canada, which means it is not considered a “conviction” of the IRPA.

FAQ: What is a conviction under Canadian law?

8. Can I get into Canada if I have a pending charge?

Maybe. 

You may think you are safe because you don't have conviction, but that is not the case. 

Under the IRPA, you are criminally inadmissible for being convicted of a crime or “committing an act” that would be an indictable offense in Canada.

This means that a conviction is not required for criminal admissibility. 

The Canadian government only needs “reasonable grounds” to think you committed a crime.  This is not a high standard—it's somewhat equivalent to “probable cause” in Washington, which is far less than beyond a reasonable doubt or even preponderance of the evidence.

Example: You are arrested for trafficking cocaine in Snohomish County Superior Court.  The judge finds probable cause that you committed the offense, but the prosecutor declines to file charges immediately, pending further investigation.  You reach the border, and the immigration agent runs your record and sees a pending arrest and a hearing.  He may deny you entry. 

Canadian border agents have full access to U.S. criminal records, including FBI background checks, so they are likely to flag anyone with an arrest or a felony charge. 

In effect, YOU are going to have the burden to prove that you are admissible.  If you have pending charges, Canadian immigration lawyers recommend that you bring a letter from your attorney showing that you are fighting your charges and confirming that you have not been convicted.

The safest option is to apply for a valid temporary resident permit ahead of time, so you are not at the mercy of the Canadian border agent who reviews your file. 

9. How long do you have to wait to get into Canada after a conviction?

The answer depends on your criminal history.

If you have less serious offenses on your record, you may be automatically eligible to enter Canada after the passage of a certain amount of time (either 5 or 10 years).  This is called Deemed Rehabilitation under Canadian law. 

For more serious crimes, you are not automatically eligible no how much time has passed.  You cannot enter Canada without a valid TRP or without being found criminally rehabilitated.

10. How can I travel to Canada with a criminal record?

You can travel to Canada in one of three ways:

  • Temporary Resident Permit

A temporary resident permit (TRP) allows you to enter Canada for a temporary period of time (not to exceed 3 years) for a specific work, family, or emergency reasons, even if you are criminally inadmissible based on your record.

FAQ: Temporary Resident Permit

  • Criminal Rehabilitation

The Canadian government finds that you no longer pose a danger to the public and permanently removes the criminal inadmissibility from your file.  You can travel freely to and within Canada. 

To apply for criminal rehabilitation, you must complete a detailed application, and you may have to wait more than a year for a decision.

FAQ: Criminal Rehabilitation

  • Deemed Rehabilitation

You are automatically rehabilitated simply based on the passage of time (either 5 or 10 years, based on your record), assuming you have not committed any more criminal offenses. 

You can only be deemed rehabilitated if you have non-serious offenses (i.e. no felony convictions).  As of December 2018, you can no longer be deemed rehabilitated for a DUI. 

FAQ: Deemed Rehabilitation  

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