There are three situations when a person is deemed rehabilitated and where an attorney’s Legal Opinion letter can replace the necessity to obtain a temporary resident permit (TRP):
- The first such case is where a person has a criminal record, such as a DUI, DWI or DWAI conviction for example, but whereby due to the length of time that has passed since the conviction occurred, he or she would now be eligible once again to go to Canada. This situation applies to those offenses which, under Canada’s criminal laws, are deemed to be a matter of “criminality” but not those which fall under “serious criminality”. Most misdemeanors would be classified as “simple criminality” under Canadian criminal laws. Please note that the length of time required to have passed is ten (10) years since the moment of completion of all ordered conditions of your sentence.
- The second is a situation where the person had committed an offense, but this offense was later dismissed or discharged by the court. This scenario applies to all offenses, regardless of the severity of the offense committed, as long as the case against you was duly dismissed by the court. The fact that the case was dismissed implies that there is no offense on your record, therefore making you eligible to travel to Canada as would any other individual who does not have a criminal record.
- The third situation whereby an individual with a criminal record could enter Canada despite a prior offense is when the crime is considered a matter that would only be “prosecuted summarily” under Canadian criminal laws. Such offenses include public intoxication, indecent exposure, public urination etc. Please note that if you have more than one such offense on record, you would not be eligible for a Legal Opinion letter and would instead require a TRP to enter Canada, as two minor offenses of such nature automatically render you inadmissible to Canada.
After how many years does deemed rehabilitated by the effect of time come into effect?
Generally speaking, after ten (10) years have passed from the moment that all of the conditions of a given sentence have been completed, a person becomes rehabilitated by the effect of time. Please note that this notion applies ONLY if the offense in question was one of “criminality” and not a matter of “serious criminality” under Canada’s criminal laws. For matters of serious criminality, such as certain drug distribution charges or a DUI which resulted in injury or death for example, no matter how many years will have passed, a person could never be deemed rehabilitated by the simple effect of time, and would instead need to apply for criminal rehabilitation in order to overcome the inadmissibility permanently.
Which offenses are considered simple “criminality”?
An offense found in this category is one which is punishable by a prison term of less than, but not equal to, ten (10) years under Canada’s criminal laws. These include, for example:
- Theft under $5000;
- Simple assault;
- Public urination;
- Disorderly conduct;
- Fishing and hunting offenses;
- Certain drug possession offenses and others.
Are drunk driving offenses such as a DUI, DWI, Reckless Driving etc. simple criminality in Canada?
*IMPORTANT NOTE: Up until December 18st, 2018, drunk driving and related offenses such as DUI, DWI, DWAI, Reckless driving, refusing to submit to a breathalyzer test, and driving with license suspended, have all been found in the category of “criminality”. However, as of the above-mentioned date, these and similar drunk driving related offenses have all become matters of “serious criminality” under Canada’s criminal laws due to an important change in legislation.
How does this change in Canadian legislation affect me if I have a DUI?
This new legislative amendment has important repercussions on those individuals who have been charged with a drunk driving or related offense after December 18th, 2018. This law, however, is not retroactive and will not affect those who have been charged with a DUI or other drunk driving offense prior to December 18th, 2018. This means that if you had one DUI on your record from over 10 years ago, you would be deemed rehabilitated by the effect of time by now because more than 10 years have passed since you have completed all of the conditions relating to your one “criminality” offense. However, as of December 18th, 2018, and for those who were arrested or convicted after this date, the notion of rehabilitation by the effect of time will no longer apply, as a DUI is now considered an offense of “serious criminality”, which is not subject to the notion of rehabilitation by the effect of time, meaning that no matter how many years will have passed from the moment the offense and its conditions were completed, it will always remain a factor which will prevent one from legally entering Canada.
What is a Legal Opinion letter?
A legal opinion letter is a document drafted by an attorney who specialized in issues pertaining to inadmissibility into Canada, and more specifically in matters relating to criminality and the ability to enter Canada. The legal opinion letter will outline, among other, the Canadian legislative equivalent to the offense(s) that you have on your record and their applicable punishment under Canadian criminal laws. The letter will aim to demonstrate that the nature of your offenses should not prevent you from entering Canada and that you should be in fact allowed entry into Canada.
Who is eligible to benefit from a legal opinion letter?
The letter, attesting to your admissibility into Canada, can be written in the following circumstances:
- Where you have committed one single offense, which is not serious in nature, and for which all ordered conditions have been successfully met over 10 years ago;
- You have committed one single offense, regardless of when it occurred, which is minor in nature and therefore is prosecuted summarily under Canadian criminal laws. This includes: public intoxication, disorderly conduct, public urination, noise violations and similar offenses.
- The offense or offenses committed, regardless of their severity, have all been dismissed or expunged off your record.
If you have any questions regarding your case, and in order to determine if you are eligible to enter Canada, call one of our KLM immigration lawyers today for a free, no obligation consultation at 1-888-603-3003. We are here to help you.