Not Our Case: DUI and Criminal Inadmissibility
A DUI conviction, an entry ban, counterproductive legal arguments, and a fundamental misunderstanding of how Canadian immigration law works
This is not a case we handled, but it is an instructive example of what happens when immigration counsel does not fully understand the principles underlying criminal inadmissibility. The events took place several years ago. We reviewed the detailed GCMS notes – the internal case file maintained by immigration authorities – excerpts from which appear throughout this article.
Criminal Inadmissibility
While in Canada on temporary status, the applicant filed for permanent residence with the help of a lawyer. Entering Canada had not posed any particular difficulties; it was only after the PR application was submitted that the applicant learned there was a problem: he was inadmissible.
This came to light because a PR application requires police clearance certificates. And those certificates sometimes reveal biographical details that people would rather not revisit (a similar situation is described in more detail in this case).
Reviewing the PR application, the visa office examined the police clearance certificates and noted that the applicant had once been convicted of driving under the influence. This offence made the applicant inadmissible, but because the incident was old enough, he was already eligible to apply for criminal rehabilitation to remove this barrier on the path to permanent residence.
The trouble began when the visa office notified the applicant of the issue, invited him to submit a rehabilitation application, and even offered to hold the PR application open while the rehabilitation was being processed.
It seemed straightforward: do as instructed – file the rehabilitation application, make a persuasive case, and continue with the immigration process.
The Wrong Strategy
Instead of following the visa office's guidance, the applicant promptly fired his lawyer (why remains a matter of speculation) and attempted to prove on his own that he had not committed a criminal offence. He sent explanations and supporting materials to the visa office.
Before the visa office could even respond, the applicant hired a new lawyer, and events began to unfold rapidly.
The first thing the new lawyer and the applicant attempted was to convince the visa office that since the offence involved traffic regulations (rather than the criminal code of his home country), it should be assessed under provincial highway traffic legislation in Canada, without reference to the Criminal Code of Canada.
This reveals a troubling gap in expertise: it was a naive and completely futile argument. One need only open the principal immigration statute – the Immigration and Refugee Protection Act – and review Section 36. That section describes precisely how an offence committed outside Canada must be assessed in the context of Canadian law. There is absolutely nothing in it that would exclude the Criminal Code from the analysis or support the argument the applicant and his lawyer were making.
The visa office patiently reminded them that an offence punishable under any Act of Parliament renders the applicant inadmissible, and that the offence in question is found precisely in the Criminal Code of Canada. Once again, the office invited the applicant to file for rehabilitation:
Despite this, the applicant and his lawyer tried the same approach again. Another submission followed – this time a formal legal opinion from the lawyer, arguing that the fine imposed for drunk driving could not be characterized as a criminal offence.
One can only wonder what that legal opinion contained and how the lawyer attempted to prove the unprovable. If the law were followed to the letter, the conclusion would have been exactly the opposite: what earned the applicant a mere fine in his home country is a criminal offence in Canada. And it is precisely that fact which forms the basis for the entry ban.
For a detailed explanation of how foreign offences are assessed under Canadian immigration law, see our article "Criminal Records and Entry to Canada."
Unsurprisingly, the immigration authorities did not accept the lawyer's position. In the end, the applicant had to file the rehabilitation application anyway, and the matter was resolved.
The Applicant Was Lucky Twice
First, the visa office did not refuse the application outright the moment it became clear that the applicant was inadmissible – even though the officer had every authority to do so. Instead, the office offered a path forward: file for rehabilitation and wait.
Second, the applicant could have faced problems far worse than just a refusal. In his original temporary visa application, he had said nothing about the offence – had that question been raised earlier, the inadmissibility issue would have surfaced sooner. When reviewing the PR application, the immigration officer could well have raised the issue of deliberate misrepresentation – concealment of a criminal conviction. It would have been very difficult to explain why the earlier application answered "no" to questions about prior convictions, arrests, and offences.
The takeaway from this case is simple: when immigration authorities identify an inadmissibility issue and offer a clear path to resolve it, follow that path. Attempting to argue away a well-established legal provision wastes time, erodes credibility, and can turn a manageable problem into a much larger one.
Lawpoint Immigration handles criminal inadmissibility cases, rehabilitation applications, and related Federal Court proceedings.