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DWI Entry to Canada - Consolidated Info

DWI Entry to Canada - Consolidated Info

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Old Mar 30, 17, 9:02 pm
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DWI Entry to Canada - Consolidated Info

So I've had to follow a rabbit trail many others have had to lately, and figure out admissibility to Canada with a DWI arrest in my past. Finding the search to be quite frustrating (albeit not undeserved, because in the end I did put myself in this situation), I thought I'd compile what valid, or at least credible, information I could in this post.


Government References:
1) Port of Entry Examination Procedure
http://www.cic.gc.ca/english/resourc.../enf04-eng.pdf
2) Procedure for Evaluating Admissibility
http://www.cic.gc.ca/english/resourc.../enf02-eng.pdf
3) Canadian Border Services Website
http://www.cbsa-asfc.gc.ca/menu-eng.html
4) Admissibility Criteria
http://www.cic.gc.ca/english/informa...lity/index.asp


Additional information is from attorney websites. One key piece of information - that the FBI NCIC database is not searched at primary inspection, but is searched at secondary inspection, comes from multiple posters who have claimed to be CBSA officers on both FT and Reddit. I could not find an official source for that, but did verify the posters weren't "trolls" via their other posts and the info in the above reference materials does not point to searching criminal databases at primary inspection.


The easy basics:
(info from Ref 4). A conviction of DWI (or if there's reason to believe you committed such an act) will leave you inadmissible to Canada. You can be deemed rehabilitated at the conclusion of 10 years after your sentence is completed or can apply for rehabilitation after 5 years. Without rehabilitation, a Temporary Residence Permit can be applied for, but your need to enter Canada must outweigh the risks.


One layer deeper:
(info from Ref 2, with additional interpretation from some attorney websites). If your court proceedings are over, and the final disposition is "not guilty", or "dismissed", or pretty much anything other than "conviction" you are likely admissible to Canada. For the US, many states have a pre-trial diversion program that would land you in these categories. Expunged records from the US should be honored at the border.


For Secondary examinations at the border, Canadian officers have access to the FBI NCIC database, and that database may not be updated with the final disposition of the case. For this reason, you should have all court documents at the border. An arrest without a documented final disposition will leave you inadmissible. This can either be due to the trial not having occurred yet (in this case you're still inadmissible due to having reasonably "committed an act"), or due to your local court information of "not guilty" not making it back up the FBI chain. Either way, as a foreign national the burden of proof is on you.


Deeper Yet
(Info from Ref 1, Ref 3). At primary inspection, your criminal history should not be asked about (Ref 1 pg. 29-33). The reject rate of people at the border seems to be < 0.5% of all travelers.
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Old Dec 4, 17, 1:57 pm
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This has been the most helpful information I can find out this subject after hours and hours of researching? How did it work out for you...were you able to enter? We are hoping to go at the end of this month. (I booked tickets for us prior to learning about all of this DUI/inadmissible stuff-such a bummer!)
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Old Feb 22, 18, 7:49 pm
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Originally Posted by Mullina3 View Post
This has been the most helpful information I can find out this subject after hours and hours of researching? How did it work out for you...were you able to enter? We are hoping to go at the end of this month. (I booked tickets for us prior to learning about all of this DUI/inadmissible stuff-such a bummer!)
Did you have any success Mullina?
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Old Feb 23, 18, 6:31 pm
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Originally Posted by mdkowals View Post
Additional information is from attorney websites. One key piece of information - that the FBI NCIC database is not searched at primary inspection, but is searched at secondary inspection, comes from multiple posters who have claimed to be CBSA officers on both FT and Reddit. I could not find an official source for that, but did verify the posters weren't "trolls" via their other posts and the info in the above reference materials does not point to searching criminal databases at primary inspection.
According to this, primary inspection have access CPIC which have access to NCIC (according to this).
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Old Feb 26, 18, 4:29 am
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I was able to enter no questions asked. I did have all of my court paperwork on me (Final disposition was "Dismissed via Article 894," Which is Louisiana code for successfully completed pre-trial diversion. I entered in March of 2017 and the DWI was from March 2008 (pre-trial diversion completed November 2008).
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Old Feb 27, 18, 1:08 pm
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Midss, we ended up not even trying and eating the ticket cost. I became more discouraged the more research I did
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Old Mar 2, 18, 10:30 am
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Good job mdcowals. No doubt though, there will continue to be posts by those hoping they can 'get around' it and continuing to ask the same question over and over while hoping for a different answer.
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Old Mar 20, 18, 4:36 pm
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Originally Posted by dulciusexasperis View Post
Good job mdcowals. No doubt though, there will continue to be posts by those hoping they can 'get around' it and continuing to ask the same question over and over while hoping for a different answer.
Yes, I've seen some keep asking the same question: "If I just show up, will I get through???", but many others ask pertinent questions that rarely get answered. Thankfully some have pointed the way to Guide 5312, Form IMM 1444 and form IMM 5507, which explain the Rehabilitation/TRP process (although some contradictions exist, based on the advice of lawyers and other posters.)

In the interest of answering the most common repeat query ("what do I with a U.S. DUI that's less than five years old?"), I would like to document my journey here. (I have another, old thread on this matter, but it seems more applicable to Canada Forum.)

As has been posted "over and over," there is simply no way to know what will happen if you "just show up" with an infraction on your record. There are many stories of people that got in dozens of times and then got stopped. I will attempt to document my experience of trying to overcome inadmissibility via TRP:

Form IMM 5507 contains a checklist of required documentation that must accompany a TRP application - I am in the process of procuring that documentation. I encountered my first hurdle at the courthouse, today. The problem is that various aspects of a given sentence are carried out by different agencies, and not all documentation may be available.

Today I was given an Official Letter stating that my case was considered "Completed" - no further action required. Form IMM 5507 seems to clearly require a detailed accounting of a given sentence, with dates of completion. Unfortunately the "Letter" does not provide that information - it simply states that I have completed my sentence to the satisfaction of the State, without listing individual elements of the sentence, or dates of completion. It's possible that this document would suffice, but I would prefer to err on the side of caution and provide dates and documentation for every element (jail, fines, classes, community service, license reinstatement and completion of Interlock requirement.) This brings up an interesting question: As far as the State is concerned, my "sentence" was completed in 2012 - any driving restrictions were between me and Motor Vehicles Department. By choosing to continue driving, I had to follow their rules (Interlock) through 2014. I'm curious if someone that chose to give up driving could apply for Rehabilitation five years after completion of Court-imposed sentence, or if Canada would consider their "sentence" still incomplete? In any event, I am proceeding as if my sentence was completed when Interlock was removed.

Next step: Head back down to courthouse tomorrow and request a more thorough accounting of my case, The clerk seemed to indicate that my choices were "everything," or the "Letter." My fear is that "everything" will be pages of trial transcripts, but nothing about my jail dates, fine receipts and substance abuse assessment.
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Old Mar 21, 18, 2:02 pm
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So today's trip to courthouse was a mixed bag. I got a print out showing full payment history of fines/fees (with dates!) and a copy of my Case File. The Case File is where things remain muddy, as it is mostly handwritten and shows an incredible lack of attention to detail.
Two immediate concerns:
1) The court doesn't appear to have verified that I completed my jail sentence. I don't recall getting a "receipt" when leaving jail for the last time, so I'm not sure what to do. I noticed the missing detail, since I lived it, but maybe I'm getting way deeper into the weeds than anyone is going to look?
2) Maintaining an Interlock is a requirement for suspending most of jail sentence. I installed the device and had it removed the next day because my license was still suspended. Court shows this aborted action as the compliance date, when really it should be either eight months later, when device was installed "for real," or at some later point after a period of compliance with the program (court paperwork say 1 year.)

I suspect that the Records Clerk has given me everything she has on file. My next action will be to create a "Terms of Sentence" document with the missing information and correct dates and see if the Judge or other court official will certify it as "true and correct."

All of this may be over-kill, but I'd rather provide too much, than too little.
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Old Mar 22, 18, 2:08 pm
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Day Three: I went to Judge's chambers and spoke to clerk. She said that they verify compliance by calling the jail. Since they never noted that in my case file, it is just "assumed" that anyone checked. Considering I've come this far and don't want to leave anything to chance, they referred me to Sheriff's Office where they gave me a letter showing dates of incarceration (after taking fingerprints!) This document has nothing to tie back to original case, except date of self-surrender.

At this point I can understand the $3500 cost I have seen associated with having an Immigration Lawyer handle these types of cases. I can provide Statutes and Sentencing Guidelines for my Case that match the Canadian equivalents almost exactly - the issue is that completion of sentence in my state involves Police, Court, Sheriff's Department, Motor Vehicles Department and four third-party organizations (Counselling/Community Service/Home Detention/Interlock). I have compiled documentation from all of these places indicating dates that their portion of the sentence was completed. I need to find one Supreme Authority to Certify that all of these disparate elements come together to satisfy the adjudicated result of the underlying Case.
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Old Mar 23, 18, 10:24 am
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Can someone explain the following:

Assuming THIS is used to determine Inadmissibility:
"Section 36 of Canada's Immigration and Refugee Protection Act (IRPA) says that persons are criminally inadmissible to Canada if they are "convicted of an offense outside of Canada which if committed in Canada would be an offense under the Act of Parliament punishable by a maximum term of imprisonment of at least 10 years."

Is there a link to Canadian Law that prescribes a Maximum prison term of 10 years for a First Offence DUI with no damage, injury or death?

Thanks!
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Old Mar 26, 18, 2:43 pm
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Here are the relevant terms for impaired driving under the CC:

Criminal Code
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Old Mar 26, 18, 8:47 pm
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Thanks - that's what I was looking at. I don't see anything there that carries anything near a five or ten year sentence for a first offence with no damage/injury/death. I'm getting the sense that much of the hysteria and misinformation about this issue is overblown. I can see a border agent refusing access when his screen just says "DUI," when there's no way to tell if that actually means Vehicular Homicide, but I suspect that TRP's don't get denied when an application documents the whole story, which is typically an offence that if committed in Canada would carry a cash penalty, loss of license for a year and no jail time.

I have gathered all of my offence documentation, wrote my Event/Condition document, started on actual application and that's where the bottom fell out (again.) Who remembers the year, let alone month, that they switched apartments 30 years ago? Same with employment history - my current employer is the only place I've ever worked that's still in business - hard to see the benefit of listing places that can't be verified, but the form is the form, I guess.
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Old Mar 27, 18, 6:18 pm
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In the interest of "Consolidation," I found this to help clarify the confusion around five and ten year sentences. On IMM 14444 there is check box for Officer to select "Inadmissibility Provision(s)." One of those options is A36(2)c).

From text of Act on Canada's "Justice Laws Website": Immigration and Refugee Protection Act

A36
Criminality
(2) A foreign national is inadmissible on grounds of criminality for
(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament;


(3) The following provisions govern subsections (1) and (2):
(a) an offence that may be prosecuted either summarily or by way of indictment is
deemed to be an indictable offence, even if it has been prosecuted summarily;

So, this the exact verbiage that connects the dots from misdemeanor DUI to reason for Inadmissibility.
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Old Mar 28, 18, 2:13 pm
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Question: Application and Instructions specifically ask for "Court" judgments. Instructions for calculating start of five year rehabilitation period refer to driving restrictions as "You are prohibited by the Criminal Court from driving." In an effort to get a document from the court attesting to satisfaction of my sentence, they reiterated that the "court" is not concerned with driving restrictions and gave me a document certifying that my sentence was completed more than five years ago. Driving restrictions that resulted from this matter were imposed by depart of motor vehicles and were completed a couple of years later, Any suggestions on how to prepare Application? In exact terms, the application is solely concerned with judgments of the "Court" and my "Court" has given a date when their judgement against me was satisfied. On the other hand common sense would indicate that the "spirit" of the rules would warrant inclusion of extra-judicial sanctions.

I hesitate to act on the "spirit" versus the "letter" of the rules, as the statutes of different States ARE taken into consideration. For example, not all States require some jail time, resulting in some people getting to apply for a "free" TRP, while others, with the same offence, must pay.
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