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SKIVT-L  February 2003, Week 2

SKIVT-L February 2003, Week 2

Subject:

Re: DWI and Crossing the Canadian Border (wuz: Plaid at Jay this week end???)

From:

Leigh Daboll <[log in to unmask]>

Reply-To:

Vermont Skiing Discussion and Snow Reports <[log in to unmask]>

Date:

Tue, 11 Feb 2003 14:31:42 -0500

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (121 lines)

Here's essentially how it works folks.  Although not by a long shot a
definitive legal opinion, some of you may want to bookmark this for the
future <g>

The basic rule is that no one with a criminal record ("record" being defined
as an arrest, detention, charge, pardon, discharge, no-contest plea,
criminal restraining order, peace bond, parole or probation order) gets into
either country from the other. However, there are many, many exceptions and
exemptions to the basic rule.  These work a little differently in each
country, but the basic premise is the same for each.

First, some background:

In the US, charges are categorized into "felonies" (more serious) and
"misdemeanors" (less serious).  In Canada, we call the categories
"indictable offences" ( more serious) and "summary conviction offences"
(less serious).  In Canada, we also have a separate Federal Code for Drug
Offences which carries all the baggage of the Criminal Code, but is a
separate statute.

In the US, you also have many separate federal and state Criminal Codes, the
latter which also contain many of the lesser traffic-type offences.  In
Canada, there is only a Federal Criminal Code.  All traffic-type offences
are known as Provincial Offences and do not carry with them criminal
sanctions such as warrants for arrest for non-payment of fines.

Entry into the US is governed by the INS.  In Canada, it is governed by
Immigration Canada.  Both operate in remarkably similar ways, despite the
publicity otherwise.  You can check the immigration and entry stats if you
wish.  It's big news up here because of our absolute reliance on unfettered
US border trade.

Now for the Exemptions to the Rule:

1.  Many charges are exempted from disqualifying a person from entry.  These
include MOST misdemeanor or summary conviction charges.

2.  However, the charge must also be classed as a summary/misdemeanor within
the country in which you are trying to gain entry.  In most, but not all
cases, charges are in fact categorized similarly in both countries.
Therefore, if you are an American attempting to gain entry into Canada, your
US conviction must be a summary conviction-type charge in Canada. The same
applies in reverse for Canadians.

3.  Notable exceptions for US citizens are DUI charges  These are
indictable-only offences in Canda and thus are a bar to entry.  Canadians
are in return barred from entering the US for any type of summary conviction
drug charge, no matter how long ago or how minor.  The only exception is for
a Canadian pot charge of less than 5 grams at least 15 years prior.

4.  In addition, there also remain bars to entry for even summary
conviction/misdemeanor charges of "moral terpitude".  These include sexual
assaults, major fraud schemes, and other "seriously icky" charges.  Both
counties' immigration offices have lists of these, and there are websites
out there which help in this regard.

5.  Each country's Codes contain many charges which can result in
convictions being classified as either felony/indictable, or
misdemeanor/summary.  These are called hybrid charges.  Anyone who has been
convicted of the lesser form of that type of charge will be required to
carry a copy of his/her court conviction to present for identification
purposes at the border.  The onus is on you to produce it and to therefore
show that it was a conviction via the lesser form of the charge.

6.  Each country allows citizens of the other to apply for a "Waiver",
meaing a waiver of inadmissabilty.  It is not absolutley necessary to hire a
lawyer to prepare this, although it helps.  It is within the discretion of
the respective immigration offices to grant the Waiver.  In many cases, even
serious past charges will earn a Waiver if they are not recent, and there is
some evidence that the charge was a one time anomally in your life.
Application forms are available through Customs/Immigration offices on each
side of the border.  It takes one or two months to receive a Waiver, and
they are generally time limited (usually 5 years).  There is a fee payable
for each renewal.  Always carry it with you upon entering.

7.  Pardons/No-contests granted in either country are not recognized by the
other - they view it as an administrative issue only which does not erase
one's record.

7. For both countries, under NO circumstances do you lie when the border
official asks if you have a criminal record.  If they ask, they already
know.  Instead, fess up and explain (briefly) the facts.  If you lie, you
will be permanently barred entry.

8.  For both countries, under no circumstances do you EVER try to re-enter
when you have been previously turned back at the border.  If you do, you
will be immediatly arrested and transported to the nearest detention
facility and placed in the immigration dorm.  Plan on about 4-6 weeks of R&R
until you are deported.

9.  To avoid the problem in paragraph 8 from arising, you must then secure a
Waiver referred to in 6, above.  Doing so will allow you to re-enter with
the Waiver in hand.  You may also elect, at an early stage during your
attempted entry, to"withdraw your application for entry".  This basically
means asking if you can turn around and head back home so that there is no
denial of entry counting aginst you.  For example, you may wish to withdraw
your application for entry because you need a copy of your hybrid court
conviction, or to get a legal opinion.  It is always within the discretion
of the border official whether to let you do this, so be sure of the answer.

10.  You cannot get a Waiver for offences for which no Waiver is required
(ie: offences which do not make you inadmissable).  If you apply for such a
a Waiver "just to be safe", you will simply receive a letter back saying
that you don't require one, therefore you can't get one.  This creates an
interesting Catch-22 for some people.  Remember, it is always within the
discretion of the indivual customs officer to allow you entry.  If you act
like an arrogant a**h**e at the border, you will be faced with the
unpleasant reality of being denied entry until such time as your lawyer
writes to the local supervisor at the point of entry and has him/her
approve your entry despite the junior official's objections.  Remember, they
only have to follow the law, they don't have to be nice or efficient about
it, and they certainly don't have to let you into the country in time to
meet up with your buddies for the weekend in Quebec.

Leigh  Daboll

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
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