Many Americans and Canadians travel back and forth across our shared border with ease. Thanks to the friendship between the countries, the crossing is typically very easy. Having personally entered Canada six times by land, air and sea, I can attest to this.
That is until one is convicted of an offense Canada considers a serious crime.
This article contains two sections. First, a civics lesson so one can understand the difference between Canadian and United States criminal law. This will put the border regulations in perspective. Second, a guide on when and how one can eventually return to Canada following a DUI conviction.
The Differences Between Canadian and United States Criminal Law
While the United States and Canada are culturally more alike than different, there are some major differences in their respective criminal justice systems.
In the United States, national level criminal laws (also known as federal offenses) are those which have been passed by Congress, signed by the President and not been overturned by the Supreme Court as being unconstitutional.
These are typically very serious offenses deemed to be crimes against the United States government’s constitutionally granted authority, jurisdiction and national security powers. Examples include but are not limited to terrorism, racketeering, organized crime, bank fraud, bank robbery, counterfeiting, conspiracy to distribute drugs, certain firearms offenses and mail fraud. Per the constitution, everything else delegated to the individual states.
Canada also maintains a federal system, dividing power between the government of Canada and the governments of its provinces. However, the Canadian constitution grants the Canadian government quite a bit more power and jurisdiction. While the United States government states that anything not mentioned in the constitution falls to the states, the Canadian constitution grants specific powers to the provinces, and anything not mentioned falls to the Canadian government first.
Criminal law, for instance, is a power specifically granted to the Canadian government.
Neither country admits citizens from the other who have been convicted of an equivalent national level (or federal, as we call them in the United States) offense. For instance, someone convicted of drug trafficking in Canada would not be admitted to the United States, and vice versa, as drug trafficking is a federal offense in both countries.
However, here’s where it gets tricky. Driving under the influence in the United States is a crime in every single state. However, it is not a federal crime, as the United States government has no law against it. It is an area of criminal law that has been delegated to the states.
Driving under the influence in Canada, however, is a national crime, falling under the national criminal code.
Therefore, if you are convicted by your state of a DUI first offense, you now have an equivalent national level conviction on your record in the eyes of the Canadian government. On the flip side, if you are convicted of a DUI in Canada, you do not have an equivalent federal offense in the eyes of the United States government.
Indeed, Canadian Immigration and Citizenship (CIC) specifically mentions driving under the influence as making someone criminally inadmissible. Meanwhile, the United States Customs and Border Protection agency specifically mentions that one DUI conviction in Canada does not make one inadmissible to the United States. Only multiple DUI convictions or a DUI conviction in tandem with other offenses might veer one into moral turpitude, which then might be grounds for denial of entry.
Options for entry to Canada
When convicted of a single misdemeanor DUI in the United States, there are options to enter Canada after one’s probationary period has been completed. This typically means that all aspects of the punishment have been completed, including the specific probation period (typically one year for a first offense), classes, fines, costs, fees interlock and license restriction period. Until all of this is complete, it is virtually impossible to enter Canada. One may as well not even think about it.
After all probationary items have been satisfied, it is extremely difficult, but not impossible to enter Canada over the next five years. The program is called a Temporary Resident Permit. The application for the permit must make a convincing case that there is a benefit to Canada of one’s admittance and activities that outweigh any perceived harm. Unfortunately, the economic benefits of a vacation typically do not fall under this category. This category is reserved for family emergencies, political figures, business travelers and entertainers who are benefitting the Canadian government and/or economy, and for humanitarian waivers. The application for a TRP is $200 Canadian, and is non-refundable. It is also advisable to have a lawyer versed in Canadian immigration issues assist with this application.
After five years from the end of probation, and with no other criminal violations, it becomes a bit easier. Here, one can apply for rehabilitation. Rehabilitation means that one leads a stable lifestyle and that they are unlikely to be involved in any further criminal activity.
One is eligible to apply for rehabilitation if they have committed an act outside of Canada that would require a sentence of ten years or less if committed in Canada; and five years have elapsed since the act or or five years have passed since the end of the sentence imposed. Canada uses whichever date is later. For instance, if one is convicted of a DUI that includes a year of a suspended/restricted license and probation, the five years does not start until the last day of probation.
The application is detailed and lengthy, but worth the trouble if one wants or needs to go to Canada. There is also a $200 Canadian fee, non-refundable.
After ten years from the end of a DUI probation, and with no subsequence offense, Canada deems one rehabilitated and allows entry.
Fortunately, Canada seems to be the only country with a strict travel restriction against United States Citizens convicted of a single misdemeanor DUI.
That said, it is not recommended to travel for leisure while enrolled in VASAP classes, as vacation is not an approved absence. Once VASAP classes are completed, and while still under the year of probation, one must notify their case manager if they intend to leave the country.