You are driving up for a fishing trip, a conference or a family visit, and the border officer asks whether you have ever been arrested or convicted of a crime. You had a DUI years ago. You paid the fine, finished probation, and where you live it was a misdemeanour. At the Canadian border, none of that settles the question.
Why a DUI matters at the Canadian border
Canada does not look at how another country labels an offence. It looks at what the equivalent offence would be under Canadian criminal law. DUI, DWI, OWI, OVI and DWAI convictions generally line up with Canada’s impaired driving offences, as do refusals to provide a breath or blood sample and drug-impaired driving. Whether your state or country called it a misdemeanour or a felony makes no difference.
Reduced charges, such as “wet reckless” in some US states, need to be looked at individually. Some are equivalent to a Canadian criminal offence and some are not.
The change that raised the stakes
On December 18, 2018, Canada raised the maximum penalty for impaired driving to ten years. Under immigration law, an offence with a ten-year maximum is “serious criminality.”
What matters is the date the offence was committed, not the date of the conviction:
- Offences committed before December 18, 2018 are assessed under the law as it stood then. They are generally treated as ordinary criminality, which leaves deemed rehabilitation available.
- Offences committed on or after December 18, 2018 are treated as serious criminality. Deemed rehabilitation is not available, however much time passes.
Deemed rehabilitation for older offences
If you have a single impaired driving conviction for an offence committed before December 18, 2018, and ten years have passed since you completed every part of the sentence, you may be deemed rehabilitated. That means the conviction no longer makes you inadmissible, and there is no application to file.
“Every part of the sentence” means exactly that: jail, probation, fines and any court-ordered driving prohibition. The ten years run from the day the last piece was complete. Two or more convictions generally rule out deemed rehabilitation.
Deemed rehabilitation is decided by the officer in front of you. Carry proof of the conviction and of when the sentence ended.
Criminal rehabilitation
If deemed rehabilitation does not apply, you can apply for criminal rehabilitation once five years have passed since the sentence was completed. An approval permanently resolves the inadmissibility for that conviction. Processing is slow, often many months and sometimes longer, so the application should go in well before any planned travel. Our post on criminal rehabilitation and deemed rehabilitation covers the process.
Temporary Resident Permits
If fewer than five years have passed, or you need to travel before a rehabilitation decision arrives, the option is a Temporary Resident Permit. You will need a specific, documented reason for the trip, and the more recent the offence, the harder the permit is to get. We explain how permits work in our post on Temporary Resident Permits.
What not to do
Do not leave it out at the border. Officers have access to criminal record information, and failing to disclose a conviction can be treated as misrepresentation, which carries its own five-year bar on entry.
Do not assume an expungement or pardon abroad solves it. Whether Canada recognizes a foreign record suspension or expungement depends on the jurisdiction and how its system works. Some are recognized. Many are not.
Do not ignore an open charge. A pending impaired driving charge can also lead to a refusal at the border.
If you live in Canada
For permanent residents and people on work or study permits, an impaired driving charge in Canada is an immigration problem as much as a criminal one. Since the 2018 change, a conviction can lead to a finding of serious criminality and a removal order, whatever the sentence. We explain this in our post on the immigration consequences of being charged after a car accident. Criminal defence lawyers representing non-citizens can also ask us for an immigration opinion letter before a plea.
How we can help
At Kabir & Alam, we assess whether an impaired driving conviction makes you inadmissible, prepare rehabilitation and TRP applications, and advise on timing so travel plans are not left to the border officer’s discretion. Read more about our inadmissibility and criminal rehabilitation work or book a consultation with us.
This post is general information about Canadian immigration law and is not legal advice. Every case turns on its own facts. Speak with a lawyer about your situation before making decisions.