425-260-9366
Matthew Skau, Associate Attorney at Yranela & Associates
You’ve been charged with a crime. Perhaps it’s Driving Under the Influence, or Reckless Driving. Perhaps it’s Assault with a Domestic Violence enhancement. Perhaps it’s Trespassing in the Second Degree for violating Governor Inslee’s Stay at Home order during this COVID-19 pandemic. What does this mean for your plans to go skiing in Whistler this winter, or any travel to Canada?
Unfortunately the answer is not a simple one. In most cases being merely charged with a crime is not going to prevent entry into Canada, but a great deal of discretion is granted to border agents to deny you based on your record, and they have access to everything, including FBI background checks. Under Canadian law, there just needs to be enough indication that you “committed an act” that would be a criminal offense in Canada. Conviction is not required.
If your case is still pending and you need to travel to Canada, ask your attorney to write a letter on your behalf to the border control agents outlining the pending nature of the case, the fact that you are disputing your guilt, and that you have not yet been convicted. This will increase the chance that you will be permitted entry while awaiting the outcome of your case. It will not, sadly, guarantee you entry.
What Convictions Will Deny Me Entry to Canada?
Eventually your case will come to some resolution, and if travel to Canada is an important part of your life, you will want to consult with an experienced attorney to factor Canadian travel into your defense plan. Canadian law is different from Washington law. Unlike in Washington, Canada does not distinguish between misdemeanors, gross misdemeanors, and felonies. In Canada, you have “summary offenses”, “indictable offenses”, and crimes that could be either depending on how the Crown chooses to charge you.
Summary offenses are the minor crimes that are loosely equivalent to Washington’s simple misdemeanors. Violating the Governor’s COVID-19 pandemic Stay at Home order would likely be considered the equivalent of a summary offense in Canada (although the law on that is definitely in flux). If you have just one of these crimes on your record, it will not prevent entry into Canada.
Unfortunately, the vast majority of crimes in Washington are either indictable offenses (loosely equivalent to our felonies) or COULD be indictable offenses, and will therefore bar you from entry into Canada.
Driving Under the Influence falls squarely in that category. If you are convicted of DUI in Washington State, particularly if you are found guilty after a trial, you will almost certainly be denied entry into Canada. The same is true of Assault/Domestic Violence. There are certainly many anecdotal tales of people getting past border agents with one or even more than one such criminal conviction. These stories, if true, probably reflect more on a given border agent’s unwillingness to do a computer-search on that person than the state of Canadian law.
Many criminal cases, however, resolve by way of a plea to a lesser charge. The prosecutor may offer such an amendment to resolve the case to save them the trouble and expense of a trial, as well as to address any perceived shortcomings in their case. This is where speaking to your attorney ahead of time about your Canada travel will be valuable. Some amended charges may be better than others in Washington, but worse for you in terms of Canadian travel.
Some examples include the most common amendments for DUI. Reckless Driving and Negligent Driving 1st Degree are often offered by prosecutors as a way of resolving a DUI case. Reckless Driving is a gross misdemeanor while Negligent Driving 1st Degree is a simple misdemeanor. In the eyes of Washington State, the Negligent Driving charge is the less serious offense. In the eyes of Canada, however, the fact that Negligent Driving not only has a negligence component, but also an alcohol component, may make it a worse offense than mere “reckless” driving. If Canadian travel is an important part of your life it may be worthwhile to you to consult with an experienced attorney to help you consider which amendment will have the least impact on your ability to enter Canada.
I’ve Been Convicted. Can I Do Anything?
If you’ve been convicted of a crime that is preventing your entry into Canada, all hope is not lost. You can still potentially enter Canada with some preparation and paperwork.
The main avenue of entry is to apply for a Temporary Resident Permit. Although you can apply for a TRP at the border or the airport, you are much better off doing so through the Canadian consulate at least 4 months in advance of your trip. This will ensure that experienced consular staff can thoroughly review your application, and any supporting documents that your and your attorney can put together to support your application. Because your application can always be denied, you will want to prepare the best application you can, especially if you have a criminal conviction on your record.
The other way in to Canada with a criminal conviction on your record is to become “rehabilitated” in the eyes of the Canadian government. There are two ways this can happen. The first is “deemed rehabilitation” which is simply a matter of time. Depending on the nature of your offense and how many offenses you have on your record, Canada will “deem” you to be rehabilitated automatically after a certain number of years have passed with no further offenses. For lesser offenses this will be 5 years, for more serious ones 10 years.
For the most serious offenses you will never be “deemed” rehabilitated and must instead apply for criminal rehabilitation. This is a full application process involving full background check that cannot be initiated earlier than 5 years after you have fully completed your criminal sentence.
If at least five years have passed since you completed your sentence, and you wish to enter Canada, you should consult with an experienced attorney who can help you determine if you have either been “deemed” rehabilitated automatically or if you need to apply for rehabilitation.
Whatever your legal concern might be, whether it’s entry to Canada or any other question about your infraction or criminal charge, Yranela & Associates offer free consultations. We look forward to hearing from you.
