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I'm supposed to be coming to Canada next week and now I've realized that might be in jeopardy. When I was 19, 14 years ago I got convicted of possession of Marijuana and ecstasy both felonies. I paid my fines and did my punishment after my probation ended I was able to get these conviction expunged off my record. I thought this meant they were gone forever but now I'm not so sure, do you think I will be ok to enter or will these expunged charges come up and haunt me?
Quote:
Originally Posted by stufried
I am a US criminal attorney who practices on the Canadian border. I was watching the thread "Things Americans Should Know Before Moving to Canada" which is wandering out in multiple directions. I only wanted to respond to one thing that is threaded through that discussions. Americans with drunk drivings and even felonies ("indictables") can enter Canada. They just can't pull up to a border crossing post and expected to be admitted without having any questions asked.
Under Article 36 of the Immmigrant and Refugees Protection Act, you are presumptive3ly inadmissible if you have an offense/offence which would constitute criminality or serious criminality under Canadian law. You can overcome inadmissibility through Rehabilitation or get a temporary waiver by obtaining a Temporary Residency Permit (this is not landed immigrant status despite the name). A Temporary Residency Permit used to be called a Minister's Permit and is usually good for a year, but some people are getting two year permits.
A drunk driving conviction is a midemeanor in the US but is considered a hybrid offence in Canada. A hybrid offence can be prosecuted (in the Crown's discretion) as either a felony (indictable) or a midemeanor (summary) offence. While they are normally prosecuted as summary offences, the potential to be prosecuted as an indictable makes it a criminality under the IRPA.
Under a new waiver program started in 2012, if you have only one drunk driving, Canada will waive the $200 Temporary Residency Permit fee. You still need to be prepared to when you show up at the border. Bring a certified copy of your judgment of sentence from the US, bring a copy of the order discharging you from probation or otherwise closing the case (if you are still on probation, seek out a Canadian immigration lawyer, your burden of proof is much higher and you want an order from the US court approving your trip to Canada). Remember that an impaired or a drunk driving is the same for purposes of this.
The key in determining your admissibility status is to determine what your offence would be under Canadian law. The immigration agent converts the offence. This is an area where legal judgment is involved. Not every offence translates neatly from one jurisdiction to another and there are times where a lawyer can argue that the better analogy is a summary offence rather than the indictable that the agent is trying to convert it to. For example, my state charges autotheft tools as "burglary tools" which would constitute "serious criminality" (the worst category) under the IRPA. The CCC, however, punishes auto master keys as a two year hybrid. The statute's title sounds like it is talking about keys but also includes slim jims, slap hammers, etc. A Canadian colleague convinced them that the agent was converting it wrong and that he only had criminality. The offence was therefore subject to automatic rehabilitation based on the passage of time and the isolated nature of the offence.
For more information, start here:
[url=http://www.canadainternational.gc.ca/detroit/visas/inadmissibility-interdiction.aspx?lang=eng&view=d]Who Cannot Come to Canada - Inadmissibility[/url]
I was thinking about the Canadian woman living in Colorado with an inadmissible fiancee. You can probably get the waiver. The trick is to be prepared. Spend a few hours researching the issue hard. If you have multiple offenses, serious criminality, current entanglements with criminal justice system, you probably want to hire a Canadian immigration lawyer. If not, you can probably do it yourself. I would avoid the so-called Canadian Pardon Agencies which are paralegals and often not up to snuff.
Non-lawyer immigration agents are plentiful, but there are a lot of charletons. Moreover, many of the issues coming up here require a working knowledge of US penal law an case law involving IRPA which kicks the matter into the lawyer's court. The burglar's tool example is a good example. In converting US to Canadian offences there is a debate whether you use an "element based" conversion (compare the legal elements of the two offences) or a "fact based" conversion where you look at the crime and ask what is the best fit under Canadian law. If you have a partial restoration of civil rights from your home state, there is also a question about whether this removes criminality under the IRPA. For example, a British spent conviction doesn't count. Under UK law, a conviction which is over ten years old gets a sheltered status and can't be considered in employment. In some states, convicted felons have to reapply to regain their voting rights. Is this analagous to a Canadian pardon under Bergon v Minister? Only a lawyer can answer that. Despite the adversity to Americans and their guns, sometimes a restoration fo the right to keep and bear arms (particularly when coupled with something else) can put you over the plate.
When people hear that the going rate for a Canadian immigration lawyer is $350 an hour, they want to get cheap, but fixing a denial is more costly than doing it right in the first place. Do your own leg work, (e.g. assemble all the documents needed), get copies the relevant penal statutes, assemble your own reference letters, and then seek counsel out.
After reading this, if you still decide to go with an agent over a lawyer, read this:
[url=http://www.cic.gc.ca/english/information/representative/rep-who.asp]Use an authorized immigration representative[/url]
"but they might, and if they do ulitmately find you on that list and you've answered wrong; guess what's next?"
So what's next???????? NOTHING LOL
Say what? You think you can be arrested, charged and convicted for a DUI in Canada; arrive at the border and to the question; "have you ever been arrested" you then LIE and there will forever be no repercussions? Is that what you really think, as in; I'm "wrong wrong wrong"?
If that's what you've been doing successfully so far; wait for it,....... and when it happens come on back and tell us about your folly.
My partner has a minor drug charge in NZ, which he was convicted of but received no sentencing as the charge was so minor and there wasn't a lot evidence. He is only recently convicted.
He has dual citizenship, and is a citizen of NZ and also the USA. I am a Canadian and NZ citizen. We want to move back to Canada, and do not want to wait 5 years for him to be rehabilitated, but I know that you cannot enter Canada with a criminal conviction otherwise.
We are wondering, if we fly to the USA, and then try and enter Canada from there on his US passport, even just to visit, do you think the border agents will be able to see his NZ conviction while traveling on his US passport? The internet seems to have mixed opinions about whether the 2 governments share all criminal info, just some, or only on demand if there is reason to suspect. His current USA passport does not have an RFID chip but will expire in one year.
Then if he does manage to get into the country, and I want to sponsor him as a common law partner to live in Canada with me, we have to go through an application process that will ask if he has convictions in any country. What is the likelihood that if he applies as an American Citizen, that they will check his record in NZ (as he lived there for 16 years). We obviously don't really want to lie, but it's important to me that we find away around this before 5 years, as my Dad has cancer and I want to live near him.
Any opinions, ideas or anecdotal evidence would be much appreciated!
Thanks
My partner has a minor drug charge in NZ, which he was convicted of but received no sentencing as the charge was so minor and there wasn't a lot evidence. He is only recently convicted.
He has dual citizenship, and is a citizen of NZ and also the USA. I am a Canadian and NZ citizen. We want to move back to Canada, and do not want to wait 5 years for him to be rehabilitated, but I know that you cannot enter Canada with a criminal conviction otherwise.
We are wondering, if we fly to the USA, and then try and enter Canada from there on his US passport, even just to visit, do you think the border agents will be able to see his NZ conviction while traveling on his US passport? The internet seems to have mixed opinions about whether the 2 governments share all criminal info, just some, or only on demand if there is reason to suspect. His current USA passport does not have an RFID chip but will expire in one year.
Then if he does manage to get into the country, and I want to sponsor him as a common law partner to live in Canada with me, we have to go through an application process that will ask if he has convictions in any country. What is the likelihood that if he applies as an American Citizen, that they will check his record in NZ (as he lived there for 16 years). We obviously don't really want to lie, but it's important to me that we find away around this before 5 years, as my Dad has cancer and I want to live near him.
Any opinions, ideas or anecdotal evidence would be much appreciated!
Thanks
You have what I would characterize as a "compelling" reason rather than simply a desire, to re-enter Canada and from the tone of your post there is a lot at stake in the outcome.
OPINION ONLY: getting out front and being as transparent as possible would be my approach and that would require a 'legal beagle' well versed in ALL the various facets of the border complications. At some point severing yourself from your mates complication might be necessary to achieve what you need.
You have too much at stake to risk your re-entry to chance.
I am a travel agent and have a client with 2 felony counts that are about 5 years ago. she wants to go on a cruise that leaves out of vancouver, will she be allowed to go from the airport to the cruise ship?
I am a travel agent and have a client with 2 felony counts that are about 5 years ago. she wants to go on a cruise that leaves out of vancouver, will she be allowed to go from the airport to the cruise ship?
Sure, if she gets out of the airport. I'd wager probably not though. YVR has a well deserved reputation for having the biggest pricks in the country working in Customs and Immigration.
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