Tue | Oct 24, 2017

Immigration Corner | Haunted by drunk-driving charge

Published:Tuesday | June 28, 2016 | 12:05 AM

Dear Ms Powell,

I was on vacation in the United States (US) and my family decided to visit our relatives in Toronto, Canada. I wasn't driving, but when I got to the border the immigration officer denied me entry. They said they have evidence of me driving under the influence in the US. I have a valid Canadian visitor's visa and a US visitor's visa. I used to go to school in the States and I was charged in the States for driving under the influence (DUI), but that was years ago. I can't believe they refused to allow me into the country when I have a valid visa. I was forced to leave the car and find a hotel to stay until my family returned. Can I appeal this? What can I do? I don't want this to happen to me again. This is totally embarrassing and I don't want this trouble again. The US did not prevent me from entering, so why is Canada penalising me for something that happened in the US years ago?

- Distressed

 

Dear Distressed,

Once someone has a criminal record or committed an offence anywhere in the world, the Canadian immigration authorities have the right to determine whether to allow you into their country. The type of offence does not matter. Canada takes driving under the influence very seriously. This applies to individuals with a US green card/ permanent residence status, visitors, students, workers and even individuals applying for permanent residence.

Individuals who have a criminal record of reckless/ careless driving, driving without due care and attention, DUI, driving while intoxicated or impaired (DWI) - which also includes effects of prescribed medications - to name a few, could be barred from entering Canada.

This policy is very strict and applies to everyone, even celebrities and heads of government. Once you are deemed inadmissible, you have to go through the standard procedures to obtain authorisation to return to Canada or an official waiver, as in the case of former US President George Bush, who had a drunken driving offence dating back to the 1970s.

Canada is even more vigilant since the agreement with the US which allows both countries to share data on individuals. This data-sharing initiative means that individuals who have committed a felony or misdemeanour in the US will most likely be stopped at the border, or on entering Canada, and scrutinised by an immigration officer to determine whether they should allow the individual to enter.

It does not matter that you were not the driver at the time and that you do not intend to drive in Canada. What guarantee does the Canadian government have? Their duty is to protect other Canadian citizens, residents and other visitors to Canada. That means not allowing someone with a criminal record from entering without first being admissible.

The procedure for dealing with this is not by way of an appeal. The correct procedure to follow will be based on factors such as the type of offence, the fine or sentence imposed, the severity of the offence and the number of years that have passed since paying the fine or serving the sentence.

It is best to consult with an immigration lawyer to help with determining the best way forward. Handling the situation incorrectly could lead to a delay or even compound the situation, possibly leading to a lifetime ban.

You should note that you could be deemed rehabilitated if more than 10 years have passed from the payment of a fine, or completion of the sentence. You could also apply for criminal rehabilitation if more than five years have passed since the completion of the latest sentence on your criminal record. You may also apply for an Authorisation to Return to Canada as a visitor. In many instances, if there is a compelling or urgent reason for you to visit Canada, an application can be made for a temporary resident permit at the port of entry. You will need to provide the necessary documents to convince the authorities to allow you into the country at that time. A green-card holder will also need to apply for an Electronic Travel Authorisation along with the dealing with the inadmissibility issue as the rules have changed for green-card holders.

Depending on the circumstances of your case, a legal opinion from an accredited lawyer outlining the circumstances of your case and the legal basis upon which you should be authorised to enter Canada could be of significant help to you when you travel.

Do not despair. Based on the information that you have provided, it appears that you can overcome your inadmissibility by consulting with a lawyer and providing the details of the circumstances of your case along with supporting documents, such as a copy of your US criminal record and all communications received from the Canadian authorities. Your application could take anywhere from a few months to just over a year, based on the type of application made. Therefore, you should deal with the issue immediately or well in advance of your next visit to Canada.

- Deidre S. Powell is a lawyer, mediator and notary public who is admitted to practice in Jamaica and Ontario, Canada. Submit your questions and comments to info@deidrepowell.com or call 613.695.8777/ 876.922.4092. Find her on Facebook at: facebook.com/jamaicanlawyer.