You're referring to different five year periods.
I do not claim to know this well but: the five year period you are referring to is rehabilitation period that's required after being convicted of a crime that requires it - let's call that a major crime. And at the time this happened, this violation was not in that category (it was a crime at the time that was subject to a max five year sentence, or lesser crime, rather than 10 - sometime after 2018 this was reclassified as a major crime).
And if it was a lesser crime at the time, no rehabilitation period required.
I think. Not my area really.
*I've used the terms major and lesser crimes with no intent to use a legal term, and hope I didn't inadvertently, but rather to avoid saying felony as I know that's not the right term in Canada.
Before the elevation of a DUI from s.36(2) to 36(1), a person did have to wait 5 years after the completion of their sentence for a DUI to then be deemed rehabilitated and were in fact inadmissible, though sometimes caught a break with CBSA. I do agree that s.36 doesn't mention rehabilitation at all, perhaps because that language is more for CBSA?
Hey guys, so I spoke with my lawyer. And he said the same thing as what
@armoured said.
Since the sentence available at the time that the offence was committed which was before the new law came into effect. Therefore you would not have been caught under serious criminality per s.36(1). Therefore, no inadmissibility finding. Therefore, no need to apply for rehabilitation.
So why was any other FN with a DUI conviction inadmissible during the same time period that you were charged? I'm not asking about s.36(1), but rather s.(36)
(2).
https://laws-lois.justice.gc.ca/eng/acts/i-2.5/section-36.html
(last modified 2022-12-09)
Serious criminality
This clearly does not apply to you because you were charged before a DUI was elevated to this category.
But, why would you
not still fall under s.36 (2)? You were (previously) charged with and (recently) convicted of a DUI in Canada.
Criminality
(2)
A foreign national is inadmissible on grounds of criminality for
- (a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;
- (b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;
- (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament; or
- (d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.
Application
(3) The following provisions govern subsections (1) and (2):
- (a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily.
We've seen numerous posts from that era where a person that was charged and convicted of DUI was in fact inadmissible. I understand that this is
now considered to be Serious Criminality, but unless this charge and conviction falls under s.36(3)(iii), how does your conviction of DUI (last week) not have any consequence at all in the eyes of IRCC and/or CBSA?
http://bordercrossing.ca/canada-dui-entry-2019-changes/
Prior to December 18th,2018 a foreign DUI charge was considered a minor offence as the Canadian criminal charge was a maximum of 5 years in prison. Border officials would allow visitors from the US and other countries to enter
provided that ten years had passed since they completed their sentencing requirements for their DUI charges. So basically, after any fines or time served were completed, waiting a further 10 years would give a person without other charges a very good chance of being “deemed rehabilitated”. Deemed rehabilitation would allow people with old DUI’s to enter Canada.
Again, only a week has passed since the completion of your sentence; 9 years and 51 weeks short of 10 years. Hopefully you will not have any problems with CBSA, but you have to admit that the information surrounding your situation still appears to be murky, at best...IMHO.
