When you’re charged with a crime, the State has an obligation to make you aware of the direct consequences of a potential conviction. If your attorney hasn’t already explained the maximum criminal penalties you’ll be facing, the judge will do so at your initial hearing. The problem, however, is that the judge is only giving you a limited amount of information. In addition to direct consequences (like a criminal sentence and a monetary fine), criminal charges often have collateral consequences, as well. If you have charges pending, it’s important to find an experienced criminal defense attorney to assist you in navigating the unanticipated repercussions of your arrest and / or conviction.
One issue that defendants never seem to see coming is international travel—specifically to Canada. Whether your aim is business or pleasure, a checkered past can make Canada a tricky place to visit. As a starting point, Canada reserves the right to deny entry to anyone based on their criminal history. Canada and the U.S. have been sharing criminal database information since the aftermath of 9/11, and this allows Canadian border agents to retrieve and review a prospective guest’s rap sheet with relative ease. Our neighbors to the North have recently become especially sensitive regarding DUI / OVWI convictions.
The legislation that governs the entry of non-Canadians is called the Immigration and Refugee Protection Act, and this law is also used to distinguish between past occasions of criminality (bad) and serious criminality (very bad). If you’re trying to visit Canada with a criminal record, it doesn’t matter whether the U.S. classifies your offense as a misdemeanor or a felony—what matters is how Canada treats your conviction.
In most criminal law scenarios, the recency of a transgression is an important factor. For example, a conviction from two weeks ago would be considered far more relevant than a conviction from 20 years ago. As of 2018, however, Canadians consider DUI / OVWI to be an instance of serious criminality, which means (among other things) that it doesn’t matter how long ago you were convicted. Time may heal all wounds, but by Canadian logic, it can’t rehabilitate an irresponsible drunk. Because of this, anyone with a DUI / OVWI conviction must apply for criminal rehabilitation in order to gain entry. The extent of this application will depend on how many convictions you’re carrying, when they occurred, and their respective severity.
Traveling to Canada with a pending case isn’t much easier. You might be inclined to argue that you’re innocent until proven guilty, but idealistic language isn’t likely to mean much in the context of a contentious border-crossing. The Canadian statute bars entry for someone based on the commission of an act, so border officers can turn you away even in the absence of a conviction.
If you’ve already been convicted, you might be able to gain entry with a temporary resident permit. You’ll need to show that there’s a good reason—say, a business trip or a wedding—for you to enter Canada and that this reason is compelling enough to outweigh the risks of your being there. In this scenario, your U.S. attorney should coordinate with a Canadian attorney to make sure everything is filed correctly. The process can be time-consuming, so it’s crucial to plan ahead. If granted, this permit will pause your criminal inadmissibility status for a set period of time. There’s no guarantee, however, that your application will be approved. After a previously-granted permit has expired, you can either reapply or consider the alternative route of criminal rehabilitation.
Successful rehabilitation removes the grounds of criminal inadmissibility, and it officially signifies that you lead a stable lifestyle and that you are unlikely to be involved in any further criminal activity. In order to qualify for rehabilitation, five years must have passed since the commission of your criminal act or—if you were convicted—from the completion of your criminal sentence. Unlike a temporary permit, rehabilitation will clear your record for purposes of immigration. Again, it’s probably a good idea to have your U.S. attorney work together with a Canadian attorney on an application of this type.
When it comes to less serious offenses, your status may be deemed rehabilitated. This means that a statutorily-mandated amount of time has passed since the commission of your criminal act or—if you were convicted—from the completion of your criminal sentence. In order to be deemed rehabilitated after a certain period, you must stay out of trouble for that particular length of time. This process only applies where the crime committed would be punishable by less than 10 years in prison if it had occurred in Canada.
Even though you don’t need to fill out an application to be deemed rehabilitated, you’ll still want to confirm that the necessary time has passed before you try crossing the border. There are a couple of ways you can check on this. Your first option is to physically travel to a Canadian port of entry with all of your relevant criminal history documentation and ask to be assessed. For many would-be travelers, this is not a terribly convenient course of action. The alternative is to apply for rehabilitation at a Canadian visa office, which is also what you’d need to do if your port of entry assessment came back negative.
Few things in our world are black and white, and there are plenty of criminal cases that don’t end in either a conviction or an acquittal. If you’ve been the subject of a deferred prosecution or a declaration of nolle prosequi (Latin for refuse to pursue), these will not count against you toward inadmissibility. On the other hand, a deferred or suspended sentence or a plea of nolo contendere (Latin for I don’t wish to contend) will count as a conviction, and those types of arrangements will cause issues at the border.
Whether you’re currently or soon-to-be facing criminal charges, it’s vitally important to hire an experienced defense attorney. A good lawyer can not only help you achieve the best possible resolution for your case, he can also guide you through collateral considerations like a suspension of driving privileges or international travel. If you want an attorney who will only worry about your criminal sentence, that’s fine, because there are plenty of mediocre lawyers out there. If you’re interested in a more comprehensive and holistic defense, though, call the Marc Lopez Law Firm at 317-632-3642 and remember—always plead the 5th!