Canada Bound, Eh? Not with a DUI Conviction
November 26th, 2008
Are you planning on going to Canada with a DUI or other criminal conviction? Not so fast! How many times has the question arisen, “Does this conviction mean that I cannot go to Canada?” The pre-9/11 answer was easy, but, post 9/11, the sharing of information between the two nations has made the answer this question so complex that it borders on the need to practice exclusively within this area.
“What Many Attorneys Do Not Know…”
In this brave new world, the border guards have more “double speak” and security than Orwell’s 1984 Big Brother. Currently, thousands of unsuspecting people are turning up at the Canadian border expecting clear-sailing across, only to find that they are turned away. Even if your DUI was 20 years ago, you are at risk for being turned around and refused entry.
According to the Canadian Consulate's website, “it is important to understand that you are entering another country and what many attorneys do not know is that, driving while under the influence of alcohol is regarded as an extremely serious offense in Canada.''1 If you must travel to Canada, and you have any sort of criminal conviction, recent or decades old, you should apply for "a Minister's Approval of Rehabilitation" to wipe the record clear. This inadmissibility is just the edge of the wedge.2
If you don't need to travel to Canada, don't think you won't need to clear your record as it is just a matter of time before agreements are signed with governments in destinations like Japan, Indonesia, and Europe.
Before wading into the labyrinth of foreign immigration policy, there are things that need to be done to ensure a smooth application process and successful entry into the Great White North. If you are counsel at the time of a plea and maintaining an eye towards admissibility, consider the information and technicalities below when contemplating how a plea deal is structured.
Permanent resident or foreign nationals (essentially our non-Canadian citizen clients) are inadmissible to Canada, as described in section 36 of Canada’s Immigration and Refugee Protection Act, if:
1. they have been convicted in Canada of an offense under an Act of Parliament punishable by a maximum term of imprisonment of at least ten years, or convicted of an offense under an Act of Parliament where a term of imprisonment of more than 6 months was imposed;
2. they have been convicted of an offense outside of Canada and if it were committed in Canada would be an offense under the Act of Parliament punishable by a maximum term of imprisonment of at least ten years; and
3. they committed an act outside of Canada that is an offense in the place where it was committed and if it were committed in Canada would be an offense under the Act of Parliament and punishable by a maximum term of imprisonment of at least ten years.
The majority of our clients fall under numbers (2) and (3). The determination as to whether a person has committed an act under (3) is made upon a balance of probabilities.
Canadian Criminal Law
To be clear, it must be understood that there are two levels of criminal law in Canada. There are those offenses created under an Act of Parliament at the federal level and those created at the provincial level that are not pursuant to an Act of Parliament. Consequently, inadmissibility stems only from convictions if the foreign conviction is equivalent to the crime enacted under Parliament and within certain sentences with respect to imprisonment. This, however, is further complicated by the fact that Canada has three classes of convictions: summary conviction offenses, indictable offenses, and hybrid offenses.
A summary conviction is an offense where the punishment upon conviction may not exceed $2,000.00 and six months imprisonment, or both. Convictions under these statutes or their international equivalent do not render one inadmissible to Canada. Many statutory offenses created by individual provinces are summary conviction crimes and as such are not Acts of Parliament, thus not convictions resulting in inadmissibility.
An indictable offense is a criminal offense, where punishment may exceed that of a summary conviction in monetary terms as well as imprisonment up to and including life. Indictable offense maximum punishments are usually defined within the criminal statute. For instance, Murder in the First Degree is indictable and punishable by life imprisonment. Under the Refugee Act, a person is excludable because this is a conviction where the maximum imprisonment is at least ten years. The issue as to whether the creation of the statute was done pursuant to an Act of Parliament is irrelevant at this point.
A hybrid offense is one where the prosecuting authority (called the Crown) may choose to prosecute “summarily” or by “indictment.” Generally speaking, the alleged facts of the case are what determine the method of prosecution. Most crimes in Canada are hybrid offenses. One example is Criminal Mischief — an offense that includes everyone who commits mischief who willfully destroys or damages property; renders property dangerous, useless, inoperative, or ineffective; obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property. This crime fairly covers at least two Washington offenses that come to mind right away.
Another hybrid offense is Impaired Driving (the Canadian DUI staute), which includes those who operate a motor vehicle, or vessel, or operate, or assist in the operation of an aircraft or railway equipment, or have care or control of a motor vehicle, vessel, aircraft or railway equipment — whether it is in motion or not, while the person’s ability to operate the vehicle, vessel, aircraft, or railway equipment is impaired by alcohol or a drug; or having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred milliliters of blood. As one can see, this Canadian statute fairly covers numerous equivalent alcohol related charges in Washington such as DUI, Physical Control, Minor Operating, and perhaps a charge in the not-too-distant future of assisted DUI!
The mandatory minimum punishment for Impaired Driving for a summary conviction prosecution of Impaired Driving is, if first offense, a fine of not less than $600; for a second offense not less than 14 days imprisonment; and for each subsequent offense not less than 90 days but no more than six months. If prosecuted by way of indictment, punishment shall be for imprisonment for no more than five years.
Considering a first offense DUI conviction for equivalency purposes and admissibility into Canada, offenses that may be prosecuted by way of summary or indictment are deemed indictable, even if actually prosecuted summarily. A first offense DUI conviction is subject to one year jail and $5,000 fine which seems to indicate that a conviction for a first offense DUI in Washington does not render one inadmissible. But “A foreign national is inadmissible for having been convicted of an offense outside of Canada if it would constitute an indictable offense created under an Act of Parliament.” As stated earlier, if there is a choice of prosecution, indictable is the presumed method of prosecution. By comparison, a permanent resident convicted of a foreign DUI is saved from exclusion because under the Refugee Act they are specifically excludable only when their offense is punishable for at least ten years, whereas foreign nationals are excludable due to the fact the criminal conviction is deemed an indictable offense.
How Criminal Equivalency Is Determined
The procedure for determining equivalency has been articulated and determined by the Canadian Federal Court of Appeal in Steward v. Canada. The court held that whatever the names given the foreign offense(s) or the words used in defining them, the essential elements must be determined and one must be satisfied that those elements correspond since it is expected that there will be various differences statutory words used from country to country as well as state to state. Furthermore, the court went on to state that equivalency is determined in one of three ways:
Comparing the precise wording in each statute both through documents (if available) and through the evidence of an expert(s) in foreign law with a view to determining the essential ingredients of the respective offense(s); By examining the evidence adduced before the adjudicator, both oral and documentary, to ascertain whether that evidence was sufficient to establish that the essential ingredients of the offense in Canada have been proven in the foreign proceedings, whether precisely described in the initiating documents soaring that statutory provisions of the same words; and by a combination of the two methods
What Counts as a Conviction?
Keep in mind that this equivalency proceeding only needs to be determined if and when there is a conviction. As mentioned above, this is the time you can help your clients safely overcome inadmissibility at the time of a plea.
To Canada, a conviction is “a finding of guilt by a competent authority, or a plea of guilty to an offense.” A conviction, however, does not exist where it is set aside on appeal (stay), if there is an absolute or conditional discharge under the Canadian Criminal Code, or if a person is granted a pardon and such pardon is equivalent to a Canadian pardon.
“Absolute and conditional discharge” is when there is a conviction yet there is no minimum punishment or, where the maximum punishment is less than 14 years. In this instance, the court may discharge the defendant completely or after fulfillment of conditions imposed by the court. An absolute discharge is immediate and the defendant is deemed not to have been convicted.
A foreign pardon is not automatically equivalent to these and must be examined carefully. This is because by Canadian standards a pardon completely erases the conviction and is based upon the merits of the case, whereas a foreign pardon may be motivated by considerations other than those deemed valuable by Canada. An example would be a presidential pardon on the eve of departure from the office and not rooted in merit or justice, but rather appears that the pardon was “purchased.”
A foreign disposition is considered a conviction for admissibility purposes when there is a suspended sentence, suspended sentence with a fine, imprisonment with or without parole, an unsuccessful appeal of a criminal conviction, or conviction(s) in absentia.
Since U.S. convictions vary from state to state in terminology and effect, it is up to the Canadian Immigration and Canadian Border Services Agency officials to interpret the most common terms to determine whether there is a conviction under Canadian law. For purposes of Washington State lawyers:
A deferred sentence equates to a Canadian conviction by virtue of equating to a suspended sentence in Canada.
A deferred prosecution is not a conviction as it translates to a deferral and that is indicative of the fact that no trial on the merits has taken place and equal to a Canadian stay.
A “deferral of judgment” is not a conviction because if the conditions imposed in the deferral are fulfilled, the judgment finally rendered is one that may a finding of Not Guilty. This seems to indicate that a stipulated order of continuance (SOC) is not a conviction rendering on inadmissible and is a better alternative to a deferred sentence if possible.
An “Alford Plea,” or any plea similar to nolo contendre (I will not contest it), is a conviction.
In the alternative any statement by the prosecuting authority where it is clear that they will no longer prosecute (nolle prosequi) does NOT equate to a conviction for Canada. For attorneys Washington State, a voluntary dismissal by the state is likely an equivalent to this, but would require a showing that the outcome is no conviction.
A sealed record is not evidence of inadmissibility if it is sealed due to the conviction being entered when the person was a minor. A record sealed for other purposes may render the person inadmissible if it was sealed by way of agreement between prosecuting authority and the person convicted.
Finally, a record that is “expunged” is not a conviction, as Canada defines “expunged” to mean “strike out; obliterate; mark for deletion; deemed to have never occurred.
A foreign national is not deemed inadmissible if, after the prescribed time period, he or she satisfies the Minister that he or she has been rehabilitated or is a member of the proscribed class that is deemed to be rehabilitated. Rehabilitation after a conviction for an offense deemed to be serious criminality (conviction under Act of Parliament punishable by max imprisonment of at least ten years) requires no criminal convictions for a minimum of five years after the completion of the imposed sentence. Therefore, if probation is part of the sentence, the time period begins at the termination of probation.
Those convicted outside of Canada of an indictable offense under an Act of Parliament that is punishable by a maximum term of imprisonment of ten years are deemed rehabilitated when the following is true:
It is at least ten years since the termination of the sentence imposed,
the person has not been convicted in Canada of an indictable offense under an Act of Parliament (this language seems to indicate that there can be no other indictable convictions at all), the person has been convicted in Canada of any summary convictions within the last ten years, the person has not been convicted of an offense outside of Canada that would be Indictable under Act of Parliament, and
the person has not in the last ten years been convicted outside Canada of more than one offense that, if committed in Canada, would be a summary conviction.
A person with two or more summary conviction offenses outside of Canada is a member of the “rehabilitated” class if:
at least five years have elapsed since the termination of the sentence;
he or she has no indictable convictions under Act of Parliament in Canada; and
he or she has not been convicted outside of Canada of an offense equivalent to a conviction under Act of Parliament; the person has not before the last five years been convicted in Canada of more than one summary conviction under an Act of Parliament, nor any convictions for any indictable offense.
Persons who have committed no more than one act outside of Canada that is an offense in the place committed, and if committed in Canada would be Indictable under Act of Parliament if all the following conditions met. The offense is punishable in Canada by a maximum term of less than ten years; at least ten years have elapsed since the day the offense was committed; the person has not been convicted in Canada of an Indictable offense under and Act of Parliament; the person has not been convicted in Canada of any summary conviction within the last ten years, nor convicted of more than one summary conviction offense before the last ten years, the person has not been convicted of a summary conviction outside of Canada, there is no conviction that equates to a conviction in Canada under an Act of Parliament.
There can be no rehabilitation if less than five years has elapsed from the date of the offense for someone convicted of two summary offenses; nor can the be rehabilitation for someone convicted of an indictable offense where there is less than ten years elapsed from the day after the completion of the sentence (including probation) nor is there rehabilitation available for someone has two indictable offense convictions, nor is there rehabilitation available for a person was deemed rehabilitated (mostly by the passage of time) but then committed a subsequent offense.
As the foregoing demonstrates knowledge of both systems is necessary to successfully aid our clients in gaining admissibility, if they are inadmissible. I say if, because contrary to popular belief, not all convictions render the person inadmissible. For example, possession of marijuana if actually less than 30 grams is not an excludable offense. In this case, the best thing we can do for our clients in this scenario if pleading guilty is specifically state how much marijuana was in their possession. That way your client will remain admissible because possession of such a small amount is NOT a crime Canada and there is no equivalency. Remember it must equate to an actual crime in Canada. Subsequently, upon entry to Canada, if the proper documentation is presented, that next trip to Whistler where they intended to enhance their snowboarding skills by loading a bowl with Olympic Gold Medalist, Ross Rebliati at the 2010 Olympics, they can thank you, their counsel, for ensuring admission.
In order to help our clients, past and present alike, retain a clean copy of their judgment and sentence that legibly shows the charge, the statute, and the sentence as well as a copy of the statute as it was written at the time of the charge, conviction, and punishment. Also make sure you can easily find any documents that relate to the probation conditions, or transfer from active probation status to inactive probation (if applicable), any comments made by the Judge at the time you deem worthy of keeping and purchasing the tape/cd from the court, any probation reports, and if a deferred sentence is imposed, make sure you draft an order that clearly shows that the charge is dismissed. If you take the time to save these documents with an eye towards your clients future travel plans you will provide them with the start that they need to successfully become rehabilitated.
1. I would like to thank Sam Hyman, of Burns Fitzpatrick Rogers & Swartz, Vancouver BC, for taking the time to speak with me about this issue as well sharing with me his knowledge and expertise on this subject.
2. For more comprehensive information on offenses that prohibit entry to Canada, go to the Canadian Consulate's Web site at www.geo.international.gc.ca/can-am/seattle/visas/inadmissible-en.asp , and for more information on visiting Canada, go to www.cic.gc.ca . I also recommend consulting a Canadian Immigration Attorney for final review and handling of documents necessary to enter Canada subsequent to a conviction.