How a Criminal Record in the United States Can Effect Canadian Immigration

American citizens have several advantages when it comes to immigrating to Canada:

• American work experience and educational credentials are frequently directly equivalent to Canadian work and school
• American documents are also already in English, so do not require translations
• For certain applications, US-issued identification does not require any further authentication to be used – a simple photocopy is enough
• Americans also benefit from shorter processing times than many other countries.

But, if you have any type of criminal conviction, even for certain types of traffic violations, you could be found inadmissible to Canada leading to the refusal of your immigration application.

As many US citizens have also found out in the most unpleasant way possible, you can even be refused entry at the Canadian border for a short visit.

Even if you have not been convicted for your crime, if you have ever been arrested before, this can impact your Canadian immigration.

Find out the most common reasons that US citizens are found inadmissible to Canada, AND their solutions below.

Driving Under the Influence / Driving While Intoxicated / Operation While Intoxicated (DUI / DWI / OWI)

Drunk driving is by far the most common reason for criminal inadmissibility to Canada for citizens of the United States.

In many states, DUI and its equivalents are misdemeanors resulting in slap-on-the-wrist punishments such as fines, temporary driver’s license revocation, and community service. Mandatory attendance of AA meetings is also common.

Most states also have felony DUI statutes for aggravated circumstances like property damage, injury, or death caused to others due to drunk driving. However, in Canada, drunk driving is always a very serious crime with a minimum punishment of a $1000 fine for a first offence, and mandatory imprisonment for any subsequent offence.

Due to the Cannabis Act coming into force in 2018, Drunk driving is now considered ‘serious criminality’ in Canada. But, whether your DUI conviction is considered ‘serious criminality’ or simply ‘criminality’ depends on when your conviction occurred.

If your conviction occurred before December 31, 2018, then your DUI conviction is still considered ‘criminality’. If your DUI conviction occurred on or after December 31, 2018, then it is considered ‘serious criminality.’

What’s the difference between criminality and serious criminality? In either situation, you are inadmissible to Canada. The difference lies in the remedy for how you can overcome this inadmissibility. If your conviction is considered ‘criminality,’ then eventually you can be ‘deemed rehabilitated,’ which means that you will be able to come to Canada again with the passage of time a simple request at the US/Canadian land border or airport. (Please keep in mind that if the request is refused, then you will be denied entry to Canada, and have to make a formal application to come back – see below).

But, if your drunk driving conviction is considered ‘serious criminality,’ you can never be ‘deemed rehabilitated’ without making an official application through the Canadian embassy. Further, this application for criminal rehabilitation will cost you CAD$800 more than if your conviction fell under ‘criminality’.

Regardless of whether your offence is considered ‘serious criminality’ or ‘criminality’, if enough time has passed since the completion of your sentence (5 years), then you can apply for criminal rehabilitation in order to no longer be considered inadmissible to Canada (see below). This is mandatory if you want to become a permanent resident of Canada. If 5 years have not passed since you completed your sentence for drunk driving, then you can apply for a TRP to enter Canada immediately (see below).

If you have ever been arrested for any reason, call us to find out how this will impact your Canadian immigration application.

Dangerous Driving

Depending on the circumstances leading to a conviction because of the way you were driving, you may or may not be considered inadmissible to Canada. Generally speaking, if your driving was dangerous to the public (usually this falls under a statute like ‘reckless endangerment’), then this constitutes criminality under an Act of Parliament in Canada, which makes you inadmissible. However, if your driving was considered ‘careless’ but not dangerous to the public, then you may not be considered inadmissible.

For example, speeding can sometimes be considered ‘careless driving,’ which is not a criminal offence, but other times it can be considered ‘dangerous driving,’ which is a criminal offence and will make you inadmissible to Canada.

Frequently, the deciding factor for criminality is whether the public was endangered by your actions.

**Possession of Marijuana

With the Cannabis Act, possession of marijuana for personal recreational purposes (this does not include intent to distribute) is no longer a crime in Canada.

This means that your simple marijuana conviction for possession of a small amount like a joint or few grams of weed usually does not make you inadmissible to Canada. In our professional experience, officers are treating marijuana possession convictions as a non-issue, and are determining that they do not make an applicant inadmissible to Canada.

However, this is why there is an asterisk: there has not been a Supreme Court of Canada decision confirming that a marijuana conviction outside Canada does not make an applicant inadmissible to Canada if it occurred before the law changed.

If marijuana possession is your only conviction, you will likely not have any trouble. However, this still remains at the discretion of the officer making the decision.

Solutions to Inadmissibility

Permanent Solutions – Individual Criminal Rehabilitation and Deemed Rehabilitation

If 5 years have passed since you completed the sentence for your crime(s), then you are now eligible to apply for individual criminal rehabilitation.

This means you are applying to convince the Canadian government that you are no longer at risk of reoffending, and are not a danger to public safety. Some of the factors that officers consider are that you have a stable job and/or family life, you have a place to live, and that you have a lifestyle that keeps you away from criminal activity.

Individual criminal rehabilitation is different from deemed rehabilitation, which is based on the passage of time and the number and type of convictions. For a drunk driving conviction before December 31, 2018, 10 years must have passed since you completed your sentence for deemed rehabilitation to be possible.

If you are applying for any type of permanent residence in Canada such as through Express Entry or even family sponsorship, you must be approved for criminal rehabilitation before you can be granted PR in Canada. The same applies for temporary residence like a work permit or visitor status – you cannot enter Canada for any reason if you are criminally inadmissible.

Temporary Solution – Temporary Resident Permit

If you are criminally inadmissible to Canada but not enough time has passed since you completed your sentence to apply for criminal rehabilitation (it has not yet been 5 years), or you only need to come to Canada for a brief time, then you can apply for a Temporary Resident Permit (TRP).

A TRP will allow you to visit, work, or study in Canada for a limited period of time. It can also be issued to allow for multiple entries to Canada over a period of time depending on your circumstances.

A TRP can be issued on an urgent basis if you need to enter Canada very quickly, such as for work purposes, medical treatment, or a sick relative.

TRPs will not allow you to be granted permanent residence in Canada. However, they can be a very useful stopgap until you are eligible to apply for criminal rehabilitation. A TRP issued for 6 months or longer can even allow you to get a work or study permit in Canada.
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Once your criminal rehabilitation application has been approved, then you can proceed with your Express Entry or Sponsorship application without impediment. If you are not yet eligible for criminal rehabilitation, then you have to wait before you can apply for PR and apply for a TRP if you still need to come to Canada in the short term.

It is not always easy to determine whether your conviction makes you inadmissible to Canada, and whether it is criminality or serious criminality. The answer has a lot to do with the circumstances as well as the discretion of the officer making the decision.

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Contact us if you’ve been convicted of drunk driving or any other offence in the USA (or anywhere else), or if there is any occurrence listed on your rap sheet, and we can advise you if this conviction makes you criminally inadmissible to Canada.