The Law and You: Border issues – Plattsburgh Press Republican

We live on an international border that many people frequently cross for work, college, family or social reasons.  

If you’ve been charged with breaking the law, you might have a surprise the next time you try to enter Canada. This applies to all kinds of offenses, including those that you might not think of as making you a criminal.

The point of this column is to alert people that not being able to cross the Canadian border might be an unforeseen consequence of being convicted — or even arrested.  

This may well be an issue in entering other countries, too, so it is important to try to find the answers if you expect to travel.  

I just searched the internet for “entry to Canada with criminal record” and found many websites with helpful information, including the Canadian government (www.cic.gc.ca) and attorneys who specialize in these matters. Even TripAdvisor has an article on it.  

Next, I did the same search for entering Britain, which also turned up numerous websites indicating that a criminal record can be a problem.

FREE AND CLEAR?

If you have a driving-while-intoxicated arrest, it is a welcome resolution to be able to plead guilty to the reduced charge of driving while ability impaired, since DWI is a misdemeanor but DWAI is a non-criminal violation under New York law.  

Similarly, being able to get a misdemeanor marijuana charge reduced to the violation of unlawful possession of marijuana means that you do not have a criminal record.

However, although you will not have a criminal conviction, you may not be as “free and clear” as you think. If it is important to you to be able to go to Canada, be aware that even a violation that is drug or alcohol related may keep you from doing so.

Canadian immigration law may make you “criminally inadmissible,” even for a brief visit.  

Canada is quite strict, particularly with offenses related to drinking and driving. If the arrest charge was DWI, even if it is reduced to a non-alcohol traffic infraction, they might treat it the same as a DWI conviction.  

Similarly, anything that is cannabis-related might be a barrier. Canada is changing its own laws on the legality of marijuana, so this might change for travelers also.

NO SURE THING

Of course, the best way to avoid this consequence is to be very good so you do not run afoul of the law.  

If that fails, then you and your lawyer need to learn about the requirements of Canada or other countries to which you plan to travel, so you can determine whether there is a disposition you can get in New York that will avoid a problem. 

For example, will an adjournment in contemplation of dismissal help, where there is no conviction of any kind, but the charge remains open for 6 to 12 months? 

Or will Canadian authorities bar you from entry because you have a pending criminal charge?  

How about a youthful-offender adjudication, if the crime was committed when you were under 19? In New York, that means there is no criminal conviction; however, other states and our own federal government often do not recognize this, so Canada may not either.  

You will not receive any of these dispositions unless the judge and DA agree, so none of these is a sure thing, no matter how badly you need it.

REHABILITATION

Canada has legal provisions for “Overcoming Criminal Inadmissibility”; having a Canadian attorney is not necessary but may help. 

One possibility is seeking “rehabilitation,” which would change your status to admissible. However, a person is not eligible to apply for this until five years has passed since completing the imposed sentence. 

If you wait until after 10 years of a clean record and the offense was punishable by less than 10 years imprisonment under Canadian law, you will be “deemed rehabilitated.”     

To enter Canada before you are eligible to apply for rehabilitation, you can try to get a Temporary Resident Permit. 

You will have to provide all of the information about your offense and sentence and explain why you consider yourself rehabilitated.

Penny Clute has been an attorney since 1973. She was Clinton County district attorney from 1989 through 2001, then Plattsburgh City Court judge until her retirement in January 2012.  

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