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Are You Charged with DUI and Need to Travel to Canada?
For those in the movie business and hospitality business, travel to Canada is common. We have many such clients charged with DUI who understand that Canada regards those convicted of DUI in California as inadmissible.
Indeed, Section 36(2)(a) of the Canadian Immigration and Refugee and Protection Act (IRPA) states that “a foreign national [i.e., a “non-Canadian”] is inadmissible on grounds of serious criminality for having been convicted of an offense outside Canada that, if committed in Canada, would constitute an offense under an Act of Parliament [such as DUI].”
The Reader’s Digest Version: If one faces a DUI or has a conviction for DUI, travel to Canada can be problematic. After a conviction for DUI, one can file an Application for Criminal Rehabilitation in Canada or a Temporary Resident Permit (TRP) to travel and drive in Canada.
It is important to note that if one has a conviction for DUI that is “expunged,” i.e., the plea of no contest or guilty is set aside (and the original not guilty plea reinstated) and the case ordered dismissed by the judge under Penal Code § 1203.4, expungement “cures” any criminal inadmissibility to Canada. In other words, for purposes of determining criminal inadmissibility in Canada, the effect of a set aside in California is treated as an acquittal or “non-conviction” under § 36(3)(b) of the IRPA.
Immigration inadmissibility in Canada is thus fundamentally different from U.S. immigration law wherein a foreign national in the U.S. is criminally inadmissible as soon as he pleads guilty or no contest to certain charges. In the United States, a foreign national’s final disposition is immaterial to determining his or her admissibility.
Torrance CourthouseIn contrast, in Canada, a foreign national may plead guilty to an agreed outcome that is satisfactory to both parties and not be inadmissible if the final disposition in the case is treated as a “non-conviction” following a plea deal, i.e., judicial diversion under Penal Code §§ 1001.95 and 1001.96, expungement (Penal Code § 1203.4), or deferred entry of judgement.
Fortunately, there are two relief provisions under Canadian law that allow a foreign national to travel to Canada after a conviction for a criminal charge under “Serious Criminality.”
First, one may seek to permanently cure his or her inadmissibility by filing an application for “Criminal Rehabilitation” five years after probation ends or the sentence is served (if probation is not granted). This means that if someone is facing a first-time DUI in California with three years of informal probation, one must wait eight years before making this request.
Second, one can apply to temporarily “override” his or inadmissibility by filing for a “Temporary Resident Permit,” or TRP, that can override criminal inadmissibility for a short period of time. Being granted a TRP, however, is not easy. The visit to Canada for the applicant must fit the exceedingly high standard of a “national interest” trip. Moreover, there must be some reasonable period of time since the conviction at issue, i.e., at least a year since the conviction.
We recommend that if someone is facing a pending misdemeanor DUI, that the person seek judicial diversion to avoid the conviction and the travel consequences one may face from Canada. Under Penal Code §§ 1001.95 and 1001.96, a DUI defendant is not excluded from eligibility, however, a judge has discretion to deny a request for judicial diversion.
Many judges are averse to granting judicial diversion for someone accused of misdemeanor DUI, believing that it is excluded or at least, that the Legislature intended to exclude DUI because DUI in fact was excluded from an earlier pilot program of judicial diversion available only in Los Angeles County and “sunsetted” on December 31, 2018. Other judges point to Vehicle Code § 23640, which excluded DUI from diversion programs, although Penal Code §§ 1001.95 and 1001.96 supersede § 23640.
Our office has researched the legislative history behind Penal Code §§ 1001.95 to 1001.96 and found that excluding DUI from judicial diversion eligibility was extensively debated, but the legislators decided to include DUI as an eligible offense. In fact, even misdemeanor DUI with injury is included as an eligible offense.
It merits mention that DUI is also not excluded from military diversion (Penal Code § 1001.80), a similar pre-trial diversion program.
Moreover, the Governor signed Assembly Bill 3234, the bill proposing judicial diversion later codified at 1001.95 to 1001.96, after the Judicial Council wrote the Governor, objecting to inclusion of DUI in the program. The California District Attorneys Association similarly opposed judicial diversion because it included DUI. Governor Newsom signed the bill, however.
Consequently, we believe it is prudent to seek judicial diversion for any misdemeanor DUI to avoid the adverse consequences such a conviction poses for travel to Canada.
For more information about immigration issues and DUI, please click on the following articles:
Update: On March 21, 2022, the California Supreme Court declined to rule on the Fourth Appellate District ruling in People v. Nancy Grassi, wherein the Fourth District affirmed an Orange County trial court’s denial of judicial diversion for a DUI, ruling judicial diversion excludes DUI.
