I love to visit Toronto, especially in the summer months. To us Upstate New Yorkers, Canada is our closest foreign neighbor, and the exchange rates of late have been incredible. I recently went on a Niagara Falls/Toronto weekend with my wife. The package with a jacuzzi suite (with the biggest bed we have ever seen) overlooking the falls, dinner, 2 drinks each night, and breakfast was less than a weekend at the Super 8 in my little Ithaca. Go figure. Which brings me to our special relationship with Ontario and Quebec.
New York State has a very tight agreement with Canada legally. We have an open exchange of information on DMV points (Canada tickets and points count on your NYS driving record and vice versa) which seems weird because NYS DMV does not count points from moving violations in other states. In addition, if you get a DWI or DWAI conviction in the states Canada will not allow you to enter without special permission. In fact, any misdemeanor (or anything considered a crime in Canada) will bar entry. You have options, but neither is particularly exciting, and most definitely onerous.
So you have TWO OPTIONS after a New York DWI or DWAI conviction:
OPTION ONE: Apply for an Approval of Rehabilitation at the Canadian Consulate or Embassy
You must show you are living a clean and stable life but unfortunately you can only apply after 5 years have passed since the date sentence was imposed and/or your period of probation has ended.
OPTION TWO: Obtain a Temporary Resident Permit, Go to:
www.cic.gc.ca/english/application/visa.html
You will need: 2 passport photos, a criminal clearance certificate, 3 letters of reference
NOTE: You will need to obtain a criminal clearance certificate from ALL police authorities from ALL countries you have lived since age 18.
To obtain a criminal clearance certificate in the United States:
1. You will need a set of fingerprints (go to a local police department or a regional DMV office)
2. A letter of request for a criminal background check with a check (go to FBI website for latest rates)
3. Send to:
FBI/Criminal Justice Information Services Division
Attn: Records Request
1000 Custer Hollow Road
Clarksburg, WV 26306
Canada does not automatically grant Temporary Resident Permits to anyone with a DWI or DWAI conviction. They (Canada) will weigh 4 main factors:
1. If the applicant has a reason to visit Canada beyond pleasure pursuits. ie. Relatives who reside in Canada that may be ill.
2. If the applicant has property interests in Canada or a business relationship in Canada
3. The nature of the applicant's criminal offense in the States and it's severity.
4. The time that has passed since the offense was committed.
So I caution all my clients (in advance) to be aware and mindful of the consequences of New York State DWI and DWAI convictions in regards to visiting beautiful Canada.
It is my understanding that in Canada's threshold for a alcohol related criminal offense is above .08, essentially the same as a DWI in NYS.
ReplyDeleteSince a DWAI in NYS is considered a traffic violation instead of a misdemeanor with a lower blood alcohol level (.05 - .07), which is not considered a crime in Canada, why would a DWAI conviction bar someone from entry into Canada?
You have a sharp mind Rick, unfortunately under Canadian Criminal Code:
ReplyDeletesection 253
Criminal Code of Canada
Impaired Driving Sections
Operation while impaired
253. Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,
(a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
(b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
R.S., 1985, c. C-46, s. 253; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 59.
DWAI is considered a "criminal" offense in Canada regardless of BAC numbers.
There are two types of DWAI. One is a misdemeanor and one is a traffic ticket. Are both seen by Canadian immigration?
ReplyDeleteI brought a copy of my court disposition and the NYS DWAI statute to the border and received a two year study permit from Canada without any problem. Explain to them that DWAI is not a criminal offense in NYS. They will likely ask what BAL you had when arrested. Calmly explain that the law enforcement personnel did not show you the results and you have no idea. You may run into an immigration official who will be sophisticated enough to cite Section 253 but I have not encountered one yet and I have been interviewed at the border three times in the past year and have gained entry each time. If you have a lot of concern about getting in (especially for reasons other than tourism) then it is worth consulting with a Canadian attorney. A US attorney will not be as useful.
ReplyDeleteMost of the sites, I have checked suggest getting an expungement. However, I am having trouble finding out if New York expunges DWAI's. I had trouble getting into Canada and the border agents gave me the paperwork for the embassy. The US border agent suggested I have the charge expunge, even my attorney was surprised since, the charge was just a violation. Any help anyone could give me would be appreciated. Thanks!!
ReplyDeleteNYS has no expungement, you cannot get rid of a DWAI,
ReplyDeleteit is an illegal entry unless you get:
OPTION ONE: Apply for an Approval of Rehabilitation at the Canadian Consulate or Embassy
You must show you are living a clean and stable life but unfortunately you can only apply after 5 years have passed since the date sentence was imposed and/or your period of probation has ended.
OPTION TWO: Obtain a Temporary Resident Permit,
see above blog
So if you were just going to Canada for personal travel, the temporary resident permit would most likely not be granted??
ReplyDeleteYES, personal travel is considered a low priority (or reason) to visit Canada
ReplyDeleteIf you are not driving will they allow you to cross the boarder? If I use my passport will they even check the NYS DMV database?
ReplyDeleteEntry by land, sea, or air is the same = an illegal entry, if you have an offense on your record like DWAI, DWI, etc.
ReplyDeleteWhile it is true many people with records pass daily if you are caught (and they do check) then you will be arrested and held. This will necessitate a Canadian Lawyer.
Hello Larry,
ReplyDeleteI appreciate your blogs you have written, they have been very insightful. I was recently traveling to Canada and was stopped at the Canadian border. I was not convicted with my charge but they saw the arrest for a DWI. I eventually was convicted with a DWAI.
Normally, I would not care about visiting Canada but I have a girlfriend who I love very much in the Great White North. My question is if I get an immigration lawyer in Canada, will it be possible to enter before 5 years. I am willing to pay any cost, and I have a clean criminal record, I’m a recent university grad. How long do you think it will take me? And I’m a duel-citizen of another country and USA, could I use my other passport?
you need to contact a Canadian Immigration Lawyer, depends upon need (contacts, reasons)
ReplyDeleteyou should not selectively use passports in this manner, it could end badly
Hi, I have a DWAI in NYS that is over 5 years old and I currently hold a Rhode Island License, will they still do a search on my NY driving record if I am trying to enter Canada?
ReplyDeleteTo be safe the prudent thing is to follow the law. See the above for your options. Btw these days there really isn't a this record or that record, you have a database of your life history available to the "authorities" even if it is unseen by the rest of us.
ReplyDeletePeople do cross borders & keep things from employers, & licensing boards
I received a DWAI 11.5 years ago in NYS. Will I be allowed to pass into Canada without an issue? If not, can I get an approval of rehabilitation prior to my trip on the 13th of July or will I have to go to the embassy when I get there? If I have to go to the embassy, what (if any) paperwork will I need? Please let me know. Thanks!
ReplyDeleteI believe you will need more time than that, 8 days?, I guess you could try,see my prior posts for info and
ReplyDeleteThe application form for both of these certificates can be obtained from any Canadian
Customs and Immigration Office or consulate, or by phoning 1-416-973-4444 (Form IMM- 5312E which consists of an information guide, application form, and instructions), or from the worldwide web at:
http://www.cic.gc.ca/english/information/applications/rehabil.asp
To contact a lawyer experienced in such immigration issues, I suggest you contact
attorney Eileen Marie Martin, Esq. at the law firm of Hodgson Russ, LLP., (716-848-1526).
I received a DWAI about 1 year ago, therefore I can not apply for the Approval of Rehabilitation. I need to travel to Canada for work. How long is the process to obtain a Temporary Resident Permit?
ReplyDeleteYou may want to hire a Buffalo, NY or Canadian lawyer to speed things up, it can take weeks to months. Last I heard it was a long wait due to the amount of applications and the lack of administrative help to process them.
ReplyDeleteI suggest you contact attorney Eileen Marie Martin, Esq. at the law firm of Hodgson Russ, LLP., (716-848-1526).
The saga continues, Canada is loosening up, probably financially motivated but I have a great new immigration lawyer contact in Montreal, Marissa Feil, Esq.
ReplyDeleteShe has two great websites www.duicanadaentry.com and www.canadianimmigration.net, one site is primarily devoted to assisting individuals with DUIs to enter Canada.
Here is the video on youtube:
http://www.youtube.com/watch?v=8A-OGcCCnJg&feature=plcp.
She has also created an infographic that explains who could be kept out of Canada as a result of a criminal conviction and what to do about it, it is here:
http://www.duicanadaentry.com/criminal-inadmissibility-canada.html.