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Oh, Canada! Entering Canada with a DUI on your background

If you have ever been arrested for a DUI, getting into Canada can be difficult.  In Canada, DUIs are all felony cases, and they are apparently not too keen on letting “felons” into the country.

The good news is that the Canadian tourism industry has pressured Canada to relax its rules, but I am still having clients contact me with entry issues.

So here is some information to help you if you have a DUI arrest in your past and you might travel to Canada (or just have a stop over on a longer flight).

One caveat before I begin: I am only licensed in Illinois, and have very little knowledge of Canadian laws.  So consult an Canadian immigration lawyer for more information.

1.    Why did I say “arrest” for DUI, instead of convicted?

It has been my experience that Canadian immigration uses a database of names of people who have been arrested for DUI when they screen people entering the country.  They don’t appear to ever update it to strike out people who had their cases dismissed or reduced to a lesser charge!

I first learned about this several years ago, when one of my clients, who had been found not guilty of DUI, tried to enter Canada for a day trip while on vacation in North Dakota.  He was turned away, because they only had a record of his arrest, not the dismissal!

2.    Hold on to proof that your case was dismissed or that you were found not guilty, especially if the case was expunged!

Here is another scenario I recently had: a former client called me from the Canadian border in Michigan.  About five years ago, he had been arrested for DUI, but the breath test result was well below 0.08.  The State’s Attorney dropped the case, and a few months later, a judge entered an Order of Expungement.  That meant that the entire record of the case was removed from the Clerk of the Court’s computer, the court file was shredded, and the Chicago Police Department and the Illinois State Police destroyed their arrest reports, booking photos and fingerprints.  As far as anyone in Illinois was concerned, this arrest hadn’t even happened.  Yet, Canada still had this client in their database and refused him entry.  When the client called, I had was unable to get any proof that he ever had a case in the first place (my file was in a far-off storage unit).  Luckily for the client, he called while the Secretary of State’s office around the corner from my office was still open, and I was able to fax him his driving abstract showing no DUIs and a letter from me explaining the situation, and Canada let him in (this time – they told him to present better documentation to Canadian Immigration before he tries to enter the next time).

So the moral of this story is always get a proof that you were found not guilty – especially if you are seeking to expunge the record, because once that happens, it will be too late to get an official record.

3.    Take care of this situation before you arrive in Canada.  Don’t rely on wishes and hopes!

Another client called me recently in the middle of dinner one Friday night.  He was in the airport in Toronto, trying to enter Canada.

Let me back up a minute.  This client had called me three days earlier, asking my advice about entering Canada.  I gave him advice about contacting the Canadian Embassy.  The client told me he might just try to go to Canada without doing that, and hope that they let him in.  I told him that this was a big mistake – better get your paperwork in order in advance.  He hemmed and hawed and thanked me for my time.  Oh, by the way, this client didn’t tell me that he was flying to Canada in a few days!

Fast-forward to the Friday night dinner (interrupted).  So now the client called me after he was stopped at the border.  Luckily for him, his DUI case had been heard in DuPage County, and DuPage County puts up case histories on the internet (Cook County does not).  I was able to write a letter explaining his case and attach the case history and fax it over to Canada.  The client was given a Temporary Resident Permit and was allowed to enter Canada.

4.    How long will this hang over my head?

From what my research indicates:

  •  if you were arrested for DUI, but the case was dismissed, you were found not guilty, or you plead guilty to a lesser charge, you should contact Canadian immigration to get your name off their list.  Plus, you should carry an official court record of your case with you each time you travel to Canada, and an attorney letter explaining the record.
  • if you have had only one DUI conviction, and your sentence ended over 10 years ago, you should be fine to enter Canada (this is called “deemed rehabilitated) – but you should carry an official record of your case (and attorney letter) with you each time you travel to Canada.  (It wouldn’t hurt to confirm this with the Canadian Embassy or Canada Immigration before you travel).
  • if you have had only one DUI conviction, and your sentence ended more than 5 years ago, but less than ten, then you can apply for criminal rehabilitation with Canada.  You will need documentation, and should contact an attorney.
  • if you have had more than one DUI conviction, and your last sentence ended more than 10 years ago, then you also can apply for criminal rehabilitation with Canada.  You will need documentation, and should contact an attorney.
  • if you have had one DUI conviction, and it has been less than 5 years since your sentence has been completed, you can apply for a Temporary Resident Permit, which will allow you to enter the country for a limited amount of time.  Although application for a TRP can be made at the border, it is much wiser to apply for one before you travel, at a Canadian visa office.  You should have official court documentation with the history of your case an attorney’s letter explaining the case.