To be lawful a plea of guilty must be an “understanding” plea. In summary, this means that the accused has an understanding of the rights waived, the elements of the crime charged and the consequences of being convicted. The parameters of these consequences are usually set forth in the applicable statutes and so the accused will be specifically advised of them by the court during the taking of the plea. With drunk driving cases, however, some of the most significant consequences are those that are not imposed by the court or even the Secretary of State but are those that may arise “collateral” to the conviction. A collateral consequence that is of particular importance in Michigan is that a conviction may preclude travel to Canada.
Under Canada’s Immigration and Refugee Protection Act, a person convicted of a crime may be prohibited from entering Canada to visit, work, or immigrate. This prohibition, or “inadmissibility,” is discretionary, with the power to prohibit entry placed into the hands of Citizenship and Immigration Canada. Canada’s criminal code divides crimes into two categories: first, indictable crimes, and second, summary conviction crimes. Indictable crimes are considered more serious. In making the determination of into which category a particular offense falls, the test is whether or not the foreign crime, if committed in Canada, would have been an indictable offense under Canadian law. Under this test, an OWI in Michigan is considered to be an indictable crime in Canada.
Of course, being a forward-thinking nation, one convicted of an indictable offense may still gain entry into Canada so long as they are able to show that they have been “rehabilitated.” In fact, Canada is so forward-thinking that there is not just one but two ways to show this rehabilitation. These include (1) being found to be de facto or “deemed” rehabilitated, and; (2) being “approved” as rehabilitated. One may also apply for a temporary resident permit.
The first and perhaps least restrictive method of showing rehabilitation to the Citizenship and Immigration Canada is to be “deemed rehabilitated,” and under the Act as this simply requires one to remain crime-free for 10 years. Under Canadian law, anyone who can do that has achieved de facto rehabilitation, and will simply be “deemed” rehabilitated by Canadian officials.
Since many people can’t wait 10 years for their next business or pleasure trip to Canada, one convicted may alternatively apply for an “Approval of Rehabilitation.” In the context of OWI, this application can be made only after 5 years have elapsed since the completion of the sentence imposed by the court.
After 5 years an individual may complete and mail in an Application for Approval of Rehabilitation, which requires personal information, information about the conviction, reasons why the person should be considered rehabilitated and supporting documentation. Additionally, there will be a $200.00 or $1000.00 filing fee based on the severity of the underlying conviction. The review process takes six months to a year. At the end of the review, if the application is granted, then the individual may travel into Canada without issue. So, if your client can’t wait 10 years, he or she may be able to gain entry by proving rehabilitation after 5 years.
For those individuals traveling regularly to Canada for business or pleasure, there is one final way to attempt to gain entry without either the 5 or 10-year waiting period and that is through a Temporary Resident Permit. An individual may apply for this permit immediately after the conviction. However, to gain entry on this basis, an inadmissible person must demonstrate that there are compelling grounds, humanitarian and compassionate reasons or national interest grounds for such entry, and must also show that their need to travel outweighs the safety risks to Canadian society. The form and required supporting documentation is exactly the same as the Application for Approval of Rehabilitation, as is the filing fee. However, the scrutiny of the requests for Temporary Resident Permits is much higher if applied for prior to the 5 years waiting period. The normal review period for both the Application for Approval of Rehabilitation and for a Temporary Resident Permit is six months but can take up to one year.
Knowing all this the first thought may be to attempt to plead down the OWI to some “lesser” charge. However, this strategy has its own pitfalls because the conviction for OWI may not be a firm prerequisite to inadmissibility. In some instances, Canadian Border Officers may deem an individual inadmissible even if the charges against them were withdrawn or dismissed. In those cases, the individual must provide the officer with complete details of charges, convictions, court dispositions, pardons, photocopies of all applicable sections of foreign law(s), and court proceedings to allow the officer to determine whether or not you are inadmissible to Canada.
In counseling persons accused of OWI, it is important to learn if they travel to Canada. If the answer is “yes” then it is important for defense counsel to discuss with them how this travel may be impacted by their current predicament. In fact, other states have found that a failure to do so constitutes ineffective assistance.