By Zach Walsh, Attorney
Entering Canada with a misdemeanor admission or conviction under Oregon law or a misdemeanor conviction or gross misdemeanor conviction under Washington law can pose a problem. Frequently, individuals attempting to enter Canada (foreign nationals) are prohibited from entering Canada due to admissions or convictions for driving under the influence. This article is an explanation why DUII under Oregon law and DUI under Washington law pose problems for foreign nationals entering Canada.
Canada does not have a misdemeanor or felony criminal classification system like Oregon and Washington. Canadian law has indictable, summary convictions and hybrid offenses.
Section 36(1)(b) and Section 36(2)(b) of Canada’s Immigration and Refugee Protection Act (IRPA) describes serious and non-serious criminality of offenses that if were committed outside of Canada would constitute an offense. These include crimes that are punishable by a maximum term of imprisonment of at least ten years; and that if committed in Canada, would constitute an indictable offense punishable by a maximum terms of imprisonment of less than ten years. Or two offenses, not arising out of a single occurrence, that if committed in Canada would constitute summary convictions under an act of Parliament.
Canadian immigration authorities employ an equivalency test to determine whether the crime for which a person is convicted in the United States is equivalent to a crime in Canada. In Steward v. Canada, 3 F.C. 487, 84 N.R. 236 (1988), the Court held that whatever the names given the foreign offense(s) or the words used in defining them, the essential elements must be determined, and those elements correspond, since it is expected that there will be differences in statutory words used from country to country as well as state to state. Also, the Court held that in one of three ways equivalency is determined:
- Comparing the precise wording in each statute both through documents (if available) and through the evidence of an expert(s) in foreign law to determining the essential ingredients of the respective offense(s);
- By examining the evidence adduced before the adjudicator, both oral and documentary, to ascertain whether that evidence was sufficient to establish that the essential ingredients of the offense in Canada have been proven in the foreign proceedings, whether precisely described in the initiating documents soaring that statutory provisions of the same words, and;
- By a combination of the two methods.
Under these equivalency standards, DUII under Oregon law and DUI under Washington law constitute indictable felonies in Canada. Therefore, a conviction for DUII or DUI prohibits an individual from entering Canada. Even with a reduction from DUI under Washington law, the outcome is likely equivalent to the dangerous operation of motor vehicles, also an indictable felony offense, and therefore makes an individual inadmissible into Canada.
An agreement and admission in the hopes of a dismissal, such as a DUII Diversion under Oregon law, even in the absence of a conviction, may still render a foreign national inadmissible under IRPA Section 36(1) (b) or 36(2) (c) for having committed an act that is an offense where it was committed and equivalent to a crime under a Canadian federal statute.
Overcoming inadmissibility to Canada, both in the short term with a Temporary Resident Visa/Permit (TRP) application, and long-term with an Application for a Rehabilitation certificate depends on whether and when a foreign national is eligible to apply for these options. An assessment must be conducted to determine whether the foreign national is available for rehabilitation based on a single conviction for non-serious crime.
A foreign national may qualify for a TRP if the completion of an individual’s sentence and probation, including payment of any fines, is less than five years. This process can take months. To expedite this process, foreign nationals are authorized to obtain a TRP at the point of entry, or border, with a waiver of the application fee, so long as they did not receive a term of imprisonment as part of the sentence and no other convictions that would render the person inadmissible.
If the completion of the foreign national’s sentence and probation, including payment of any fines, is more than five years, they may apply for Approval of Rehabilitation. In addition to the application, foreign nationals must provide a certificate of criminal history from every state where they have lived for more than six months since the age of eighteen. They must also offer dates, home and work addresses for each state they have lived in since age eighteen. Like the TRP application, completing t he Approval of Rehabilitation may be done at the border.
The consequences of admissions and convictions for DUII or DUI are essential to understand. It is even more critical to have adequate and effective representation in criminal proceedings.