One of the most common misconceptions about Canadian criminal inadmissibility is that you cannot have a problem entering Canada unless you were convicted of a crime.
Unfortunately, it is not always that simple. Canadian immigration law allows a person to be found criminally inadmissible not only because of a conviction, but in some circumstances because they committed an act outside Canada that would constitute a criminal offense in Canada. This means that the absence of a conviction does not necessarily end the analysis.
Can a Dismissed or Withdrawn Criminal Charge Affect Entry to Canada?
This can become particularly important when a criminal charge was dismissed, withdrawn, reduced, or resolved through some type of diversion or alternative disposition.
Immigration, Refugees and Citizenship Canada specifically states that when a charge outside Canada has been withdrawn or dismissed, the person may still be inadmissible. The reason is that Canadian immigration law looks beyond the name of the disposition. The question may be what actually happened and whether the underlying conduct would constitute a criminal offense under Canadian law.
What if My Charge Was Dismissed After Diversion?
Suppose you were arrested for an offense in the United States but the prosecutor later dismissed the charge after you completed a diversion program. You may understandably believe that because you were never convicted, the incident cannot affect your ability to enter Canada.
A Canadian immigration or border officer, however, may still look at the underlying facts, the original charge, the court records, and how the case was ultimately resolved.
What if I Was Found Not Guilty?
The situation is different when you were actually found not guilty.
IRCC states that when a court finds a person not guilty of an offense committed outside Canada, that person is not criminally inadmissible because of that offense, assuming there is no other basis for inadmissibility.
Can a Pending Criminal Charge Affect Entry to Canada?
Pending charges can also create problems. If you have been charged with a crime outside Canada and the criminal case is still underway, IRCC advises that you are criminally inadmissible at that time and likely cannot enter Canada.
Why the Exact Criminal Disposition Matters
This is why the exact disposition of a criminal case matters. There can be a significant difference between:
- A charge that was dismissed
- A charge that was withdrawn
- Completion of a diversion or deferred prosecution program
- A guilty plea followed by a dismissal
- A reduced charge
- An acquittal or finding of not guilty
- A charge that is still pending
If you have an arrest or criminal charge but were never convicted, you should not automatically assume that you are either admissible or inadmissible to Canada.
The analysis generally requires reviewing the court disposition, the underlying facts, the law in the jurisdiction where the incident occurred, and the equivalent Canadian criminal law. IRCC itself describes comparing a foreign offense to Canadian law as a complex process.
What Should I Do Before Traveling to Canada?
If there is any question about what happened in your case, obtain a certified copy of the court record before traveling. Depending on the circumstances, it may also be appropriate to have the offense analyzed under Canadian law before arriving at the border.
The Bottom Line
The important point is simple: “I was never convicted” does not always mean “I am admissible to Canada.” The outcome depends on exactly how the charge was resolved and, in some cases, the conduct underlying the charge.
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We Can Help!
If you have questions about entry to Canada, especially with a prior DUI or other criminal record, we invite you to contact Richards and Jurusik for trusted guidance and assistance. When dealing with cross-border immigration issues, it is highly recommended to work with an immigration attorney who is licensed to practice law in both the United States and Canada. This dual licensure ensures that your legal counsel understands the legal implications of your situation on both sides of the border and can properly represent your interests. At Richards and Jurusik, we have attorneys licensed in both the U.S. and Canada, giving our clients a significant advantage when addressing complex entry to Canada, inadmissibility, and immigration matters – including cases involving DUI convictions. Our team has decades of experience helping individuals work, live, and travel across North America. Please read some of our hundreds of 5-star client reviews! Contact us today to assess your legal situation.
CHRISTINE JURUSIK is a Partner at Richards and Jurusik and Focuses her practice solely on U.S. Immigration law, with a specialized focus on advising families and individuals on the family-based immigration process and on obtaining U.S. Citizenship. She also handles Canadian Rehabilitation and DUI inadmissibility matters for U.S. Citizens seeking to overcome inadmissibility to Canada. (Full Bio)
