U.S.-Canada DWI Border Issues: What You Need to Know

Transcription

1 U.S.-Canada DWI Border Issues: What You Need to Know January 11, 2019 ERIE INSTITUTE OF LAW

2 9:00 a.m. General Overview of NY DWI Law and Land Mines in Defending NY DWI Cases Michael Anthony Rossi, Esq. Co-Chair, Criminal Law Committee 9:40 a.m. Case Updates and DMV Regulations Review Nicholas Michael Rossi, Esq. Co-Chair, Criminal Law Committee 10:20 a.m. What happens when a US Citizen is stopped in Ontario for suspicion of impaired driving, Changes in Canadian Law Relating to Impaired Driving, and Marijuana Use and Impaired Driving John Lefurgey, Esq., Martens Lingard LLP 11:00 a.m. Break 11:15 a.m. Border Crossing Issues into Canada for US Citizens with Alcohol Related Offenses Jamie Fiegel, Esq., Fiegel & Carr Law Firm 11:55 a.m. Q&A

3 TABLE OF CONTENTS General Overview of NYS DWI Law and Land Mines in Defending NYS DWI Cases/and Case Updates and DMV Regulations Review...1 Michael Anthony Rossi bio.2 Nicholas Michael Rossi bio.3 PowerPoint Presentation 4 DWI Hearing/Trial Roadmap..21 Breath Test Stipulation..32 NYSDMV You and the Drinking Driving Laws..33 DMV Memorandum CRR-NY CRR-NY CRR-NY DMV General Consent for Release of Personal Information N.E.3d 331, , In re Acevedo N.Y.S.3d 252, , People v. Odum.78 People v. Carter (2018 NY Slip Op 08745) 93 Memorandum and Order - The People of the State of NY v. Limmia Page 95 NYS DMV About Problem Driver Restrictions.99 Impaired Driving Law in Canada.104 John Lefurgey bio Outline Border Crossing Issues into Canada for U.S. Citizens with Alcohol Related Offenses 113 Jamie Fiegel bio 114 Canadian Inadmissibility PowerPoint Presentation..116

4 1 General Overview of NY DWI Law and Land Mines in Defending NY DWI Cases Michael Anthony Rossi, Esq. Rossi Law Firm Co-Chair, Criminal Law Committee Case Updates and DMV Regulations Review Nicholas Michael Rossi, Esq. Rossi Law Firm Co-Chair, Criminal Law Committee

5 MICHAEL ANTHONY ROSSI, ESQ. 2 Admitted: , New York State Bar , U.S. District Court, Western District of New York Michael Anthony Rossi is an AV Rated - Preeminent (Martindale Hubbell) Civil and Criminal Trial Attorney. This is a peer review rating by other attorneys and judges and the highest possible rating in both legal ability and ethical standards. Only 14% of all attorneys nationwide have achieved this honor. Michael has been named to the Super Lawyers List for both Upstate New York and the New York City Metro Area. Avvo has rated Michael as "Superb," (highest possible rating) based on his professional profile, years of practice, disciplinary history, professional achievements, and industry recognition. Michael has been named to Business First and Buffalo Law Journal s Legal Elite of Western New York. The list selects the top 150 lawyers in WNY out of over 1,100 nominations. The exclusive list was compiled by a scoring system and based on outside peer nominations. The National Association of Distinguished Counsel has selected Michael as a Member of the Nation s Top One Percent. The NADC is an organization dedicated to recognizing the attorneys who elevate the standards of the Bar and provide a benchmark for other lawyers to emulate. Members are vetted by a research team, a blue-ribbon panel of attorneys, and a judicial review board. By virtue of the selectivity of the appointment process, only the top one percent of attorneys in the United States are awarded membership. The American Society of Legal Advocates has named Michael as one of the Top 100 Criminal Defense Lawyers in the State of New York. This is an invitation-only, nationwide organization of elite lawyers who combine stellar legal credentials and the highest professional standards. A team of lawyers spent six months researching tens of thousands of lawyers across the country, manually selecting less than 1.5% of all lawyers based on an array of criteria. Michael has also been named separately as one of the Top 100 Criminal Defense Lawyers in the State of New York by The National Trial Lawyers. The American Institute of DUI/DWI Attorneys has named Michael one of the "10 BEST" Attorneys in the State of New York in Client Satisfaction in the practice area of DWI Defense. This is an impartial thirdparty Attorney rating service recognizing excellence of fellow practitioners in the field. In order to be considered for the honor, the Attorney must be formally nominated by a fellow Attorney, must have attained the highest degree of professional achievement in the field of DWI defense, and must have an impeccable Client Satisfaction rating. Michael has been selected by American Lawyer Media and Martindale-Hubbell as a "Top Rated Lawyer in Personal Injury," based on his AV Preeminent peer review rating, the highest possible rating, in both legal ability and ethical standards. Michael has received the Avvo "Clients Choice Award and "Top Attorney Award for Divorce, DWI Defense, Criminal Defense, and Personal Injury. Michael has been awarded the Martindale-Hubbell Client Distinction Award. Michael has earned a Perfect Client Review Rating Score of 5.0 on a scale of 1-5. Less than 1% of the 900,000+ attorneys listed on martindale.com and lawyers.com have been accorded this honor of distinction. Michael practices with his son, Nicholas Michael Rossi, and focuses on serious personal injury, complex divorce and custody matters, and criminal and DWI defense. The Rossi Law Firm has offices in Downtown Buffalo.

6 3 NICHOLAS MICHAEL ROSSI, ESQ. Nicholas Michael Rossi has developed a stellar reputation as one of the top young criminal defense attorneys in Western New York, focusing his practice on the defense of felony and misdemeanor criminal charges, including D.W.I. related offenses, and complex divorce and personal injury matters. He is a frequent lecturer in the area of D.W.I. law and his extensive knowledge of the ever-changing law and administrative guidelines relating to D.W.I. cases allows him to achieve the best possible results for his clients. Recognized for his skills in the courtroom, Nicholas has been named to the list of Super Lawyers Rising Stars, an award reserved for no more than 2.5% of qualifying attorneys. In addition, Nicholas has recently been named one of the 10 Best Criminal Law Attorneys in New York and one of the 10 Best D.U.I./D.W.I. Law Attorneys in Upstate New York, and has an Avvo rating of a perfect 10.0 (Superb). Nicholas recognition and reputation as a litigator are the result of The Rossi Law Firm s emphasis on being amongst the most knowledgeable attorneys in their areas of practice, while also ensuring that all issues in a client s case are thoroughly discussed with that client, right from the beginning of the case. Throughout the course of representation, Nicholas clients receive regular updates regarding the specific work that is being done on their files, including detailed explanations as to how the specific issues of the case affect the potential outcome. This level of professional service and personal attention requires Nicholas to limit his caseload, ensuring that he is both accessible and responsive to clients at all stages of the case. A lifelong Western New York native, Nicholas received both his undergraduate and legal education at the University at Buffalo, graduating Summa Cum Laude with a B.A. in Political Science before earning his J.D. Nicholas remains active in the community, regularly serving as an Attorney Advisor for his alma mater, Grand Island High School, in the annual High School Mock Trial Competition sponsored by the Bar Association of Erie County. Licensing: State of New York District of Columbia United States District Court, Western District of New York Education: 2010 Juris Doctor, State University of New York at Buffalo; Served as Student Bar Association Class Director B.A. in Political Science, Summa Cum Laude, State University of New York at Buffalo; Phi Beta Kappa, Academic Honor Society; Named to Dean s List every semester Awards & Recognition: Super Lawyers Rising Stars Best Criminal Law Attorneys for Client Satisfaction in New York, awarded by the American Institute of Criminal Law Attorneys Best D.U.I./D.W.I. Law Attorneys for Client Satisfaction in Upstate New York, awarded by the American Institute of D.U.I./D.W.I. Law Attorneys 2015 Professional Organizations: New York State Defender s Association American Bar Association Bar Association of Erie County o Criminal Law Committee o Negligence Committee o Matrimonial and Family Law Committee New York State Academy of Trial Lawyers New York State Trial Lawyers Association

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107 104 Impaired Driving Law in Canada John Lefurgey, Esq. Martens Lingard LLP

108 105 JOHN LEFURGEY, ESQ. John Lefurgey received his undergraduate education in Nova Scotia at Acadia University, and in Scotland at the University of Aberdeen. After working and travelling for several years in Canada, the Middle East, and India, he attended Osgoode Hall Law School in Toronto where he received his LL.B. After finishing undergrad and vowing to never return to school John spent a couple of years working in bars in Edmonton, Alberta during the oil boom of the late 70s-early 80s. There he encountered all sorts of people he had never met in small town Nova Scotia, including bikers, prostitutes, pimps and drug dealers. After a couple of years of this he left, vowing to never associate with those people again. Showing the problem with vows when you are young, a couple of years later John found himself back in school, law school this time, and a few years after that found him practicing as a criminal lawyer. The time in Edmonton turned out to be quite handy. John spent about fifteen years practicing exclusively criminal law and since then has branched out to do some civil litigation, though avoiding personal injury and family work at all costs. John has conducted dozens of jury trials and appeals and has been counsel in several hundred judge-alone trials. John has led seminars at the Ontario Bar Admission Course and lectured at continuing education conferences on topics including evidence, criminal and civil procedure, and mental health law. John is a past President of the Lincoln County Law Association and of the Niagara Criminal Lawyers Association. Outside of the practice of law, John spent over a decade on the Board of Youth Resources Niagara, which operates an open custody youth facility and a group home in Fonthill, Ontario. John was on the Board of Directors of the St. Catharines Concord Soccer Club for a number of years, including a period as President. John has also coached basketball with the CYO Basketball organization. After earning his black belt, he taught jiu jitsu for a number of years at the St. Catharines YMCA. John still plays soccer, basketball, and golf and has recently taken up curling.

109 106 IMPAIRED DRIVING LAW IN CANADA (ABRIDGED) Introduction In talking about Canadian law to a group of American lawyers, it seemed to me that probably the most important feature of my talk should be brevity. For the most part (and I trust I am not underestimating you), you are not interested in hearing a purely theoretical discussion of Canadian criminal law relating to impaired driving by alcohol or drugs, but rather would want what might be called a broad strokes approach that highlights the important features and skips over the parts you are really not going to need to know. Unless one of you has been called to the Bar in Ontario, it is extremely unlikely you will ever be coming to Ontario (or, as they say in St. Catharines, coming across the river) to do a criminal trial, especially an Impaired Driving trial. For the most part your involvement is likely to be a phone call from a client, friend or family member who has been arrested for Impaired Driving and wants some legal advice. Another option might be one of those people who calls you after being released and says, I ve been charged, what do I do? Those two scenarios are what this paper is designed for. Overview I start with the fact that it is Canadian law, and not necessarily Ontario law, that I will be discussing. In Canada criminal law is nation-wide. Our federal government takes care of making criminal law, rather than it being province-by-province. The second point is that Impaired Driving/Over 80 law changed significantly as of December 18, The terminology, the offences and the punishment changed to greater or lesser degrees. Even the section numbers in the Criminal Code changed. For many years I have walked into first meetings with clients charged with Impaired Driving with little more than a pad of paper and a pen with me. There have been changes to the legislation over the years, but it was always relatively minor. Once I had a handle on Impaired Driving law I didn t need to look at the Criminal Code to give advice. I anticipate that for the next year or so when I go into a meeting I am going to be carrying the Criminal Code with me because, depending on how many questions my client has, I may have to stop them and say, Let me look that up. Impaired Driving law has changed in a number of ways. I am probably going to have to refer to the Code for potential penalties, wording of charges, and evidentiary considerations. Page 1

110 107 Technology There are two types of alcohol breath devices; one is the intoxilyzer, which is usually located at the police station, failure on which will lead to criminal charges. The second is the Alco-test (or similar device) used at roadside to determine whether there are grounds to make a demand for a breath sample. There is now also an approved roadside saliva device to determine the presence of marijuana and cocaine, but initial testing shows it isn t suited for cold weather. This is not a good thing for most of Canada for large portions of the year. Apparently the device isn t all that accurate in any event. Offences The basic offence of Impaired Driving is much the same as it used to be: operating a conveyance while the ability to operate is impaired by alcohol or a drug or a combination thereof. Our Over 80 offence has now been changed to read Everyone commits an offence who has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 milligrams of alcohol in 100 millilitres of blood. There are variations of this offence for a combination of drugs and alcohol or drugs alone. The 2-hour rule doesn t apply if you consume alcohol after stopping operation of the conveyance and you had no reasonable expectation you would be required to provide a sample and the alcohol consumption is consistent with the blood alcohol concentration so that you would have been under 80 at the time of driving. It s not made clear who the onus is on to demonstrate that. What Rights Does Your Client Have? Under our Canadian Charter of Rights and Freedoms, anyone who is arrested or detained has the right to be told why, and to be told they have the right to retain counsel and have the right to contact and retain counsel if they wish to do so. The arrested part is pretty clear, and the detained part is clear (usually) but in driving cases it sometimes doesn t apply. That is because our Charter has a clause that says rights can be limited if they are reasonable, prescribed by law, and justified in a free and democratic society. Forcing clients to comply with roadside demands without giving them the chance to call a lawyer has been held to be a reasonable infringement of their right. At the police station the client will get a chance to call a lawyer. Some people have lawyers to call. Most don t. For that reason, the police tend to read a standard caution that goes something like, You have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. If you are charged with an offence, you may apply to the Ontario Page 2

111 108 legal aid plan for assistance. You also have the right to free and immediate legal advice from duty counsel by making a free telephone call to a number. Roadside The first contact a client will likely have with the police is at the roadside. Often there will be an obvious reason for the stop, an accident, speeding, or something of the like. However, police are entitled to make random stops of individual motorists or to organize blitzes where all cars are stopped. Leaving aside why your client came into contact with the police, until a few weeks ago the police could only ask for a roadside breath sample or demand that an accused perform physical coordination tests if the officer had reasonable grounds to suspect that a person had alcohol or drugs in their body and had operated a car within three hours prior to the demand. For practical purposes this demand was usually made when the police stopped the car and there was some evidence of impairment or smell of alcohol or marijuana coming from the driver. If they had this reasonable suspicion, they could make the demand. Now, it is a little different, and also a little odd. If the officer has a roadside device for alcohol in his possession, a demand for a sample can be made even without suspicion, but only of a person found operating a conveyance. If the officer doesn t have a device available, he needs reasonable suspicion, and if this exists he can force the driver to wait for an officer to arrive with the device and/or require the client to perform physical coordination tests. If he wants to test for drugs, he needs a reasonable suspicion (as set out above) to demand that the person provide saliva for the roadside device or do physical coordination tests. A failure on the roadside device provides grounds to demand a sample be taken and that an accused person accompany the police officer for that purpose. This would happen at the police station, where it is more likely you will get the call. On occasion a roadside sample is not taken; if the indicia of impairment are clear then the police will arrest for Impaired at the scene and take the client to the police station. If the client fails the intoxilyzer they will also be charged with Over 80. Police Station If the police at the roadside form reasonable grounds to believe the client has operated a conveyance while their ability to drive was impaired by alcohol or a drug or they had an alcohol reading equal to or over.08 within two hours of operating a motor vehicle, the client will be arrested and taken to the police station. A reasonable suspicion of alcohol or a drug in the body doesn t suffice; it must be reasonable grounds to believe they were impaired or had illegal alcohol limits. Page 3

112 109 That is where most of the middle-of-the-night phone calls arise. What usually happens at the police station is that the client is paraded before the Sergeant on duty and the investigating officer says the client wants to speak to a lawyer, or the Sergeant asks again and the client requests a lawyer. In Ontario, if the lawyer s number is known to the client or the name is known so the police can look it up, the police make the call, and the call is then transferred to the client who has been placed in a private room to speak to the lawyer. In other jurisdictions they just put the client in a room with a phone and a phone book of some sort. We aren t so trusting in Ontario. The police make the call. When the police call, it may actually be the investigating officer you speak to so you can get information about the charge, or it may be some officer working in the cells who knows nothing about it. Usually you can get some information on an Impaired charge though. Useful information from the police would include information about the stop, when it happened, the grounds for detention and demand, what the charges are, was there an accident or injury, etc. From the client you would likely want a hint as to consumption, timing, etc. as you will likely want to have an idea as to whether they would likely pass. If they should refuse to blow or do the relatively common I m trying, Officer, but it s not working, they will be charged with Refuse Breathalyzer. The penalty for Refusal used to be exactly the same as Impaired or Over 80; now it actually has a higher minimum penalty. The client can be convicted of both Refusal and Impaired Driving, although not of both Impaired and Over 80. Given that Impaired has a minimum fine and Refusal has a minimum fine, the fine imposed (assuming jail is avoided) will be higher, and potentially other consequences may increase (driving prohibitions). What to Say to Your Clients When They Call As noted, anyone arrested for Impaired Driving (or any other criminal charge for that matter) has the right to counsel. Where you might come into the picture is where your client, the American citizen, tells the police they want to call you, the American lawyer. Assuming your number is located, you may well receive that middle-of-the-night phone call. Your client calls and tells you she has been charged with Impaired Driving and is at the police station. The Canadian police are telling her she has to blow into a machine. What should she do? I guess your first advice would be the standard conversation you might have with a client in the States who calls you - make sure they are in a private location and nobody else is listening in (this is standard practice); try to get some details from your client or from the investigating Page 4

113 110 officer about the incident (was there an accident, was anyone hurt, etc.); try to get some information from the officer or from the client as to the grounds for arrest, if known to the client or if provided to you by the police. The police don t have to establish what the blood alcohol level was at the time of driving now; it is simply whether the level within two hours of driving is over 80. If the test is taken more than two hours after driving, the blood alcohol concentration is presumed to be the amount established by the test plus an additional 5 milligrams of alcohol in 100 millilitres of blood for every 30 minutes in excess of the two hours. One of the questions you will want to ask either the officer or the client is when the driving took place. If you think your client may be borderline, you want to get up as close as possible to the 2- hour limit. Unless they were guzzling while driving or just before getting in the car, the reading should be lower two hours after driving than it was at the time of driving. A detailed conversation with the client might knock a few points off the reading and get them closer to passing. You should advise your client that everything they do in the intoxilyzer room will be video- and audio-recorded (so don t fall out of their chair). They don t have to answer questions about consumption, etc. (and probably shouldn t talk too much if they are slurring their words). If they are an American citizen they will normally be required to provide a cash bail, which on an Impaired Driving might be $ on average and can usually be arranged at the police station (but somebody may need to bring the money to Canada). Another option after you have had that lengthy conversation with your client is to let the client know that, after all, you are not a lawyer licenced to practice law in Ontario and are not familiar in great detail with the Canadian Criminal Code relating to Impaired Driving and you believe they should get further advice from an Ontario lawyer. It might well behoove you to then speak to the police and say you have spoken to your client, you realize that they require more in-depth advice, and they wish to speak to an Ontario lawyer. If you know an Ontario lawyer you can give the name to the officer so that lawyer can be woken up in the middle of the night to speak to your client and give them Ontario-specific advice. It will also drag things out; the elimination process has more time to work. Can They Refuse (Should They) The client is only required to comply with a lawful demand. A lawful demand is one made with a reasonable suspicion (roadside) or reasonable grounds to believe (intoxilyzer). If the officer makes a demand for an intoxilyzer sample but the grounds aren t subjectively and objectively reasonable, the demand is not lawful and a refusal is not a crime. But... that is a tough call for you to make when you ve talked to client and police for a few minutes in the middle of the night. Page 5

114 111 For purposes of this paper, the penalties for Refuse are the same as the penalties for Impaired, and it is possible to convict of both, doubling up the minimum penalty. In terms of advice not to blow, you probably don t want to put it that way as the law says you have to blow and arguably you are committing an offence if you advise someone not to obey the law. You are entitled to point out the pluses and minuses of blowing, and let the client decide. Penalties in terms of penalty, the summary conviction minimum for a BAC reading of 80 to 119 is a $1, fine for a first offence, and the maximum sentence is two years less a day; on indictment the maximum is ten years (I believe this roughly qualifies to your misdemeanors and felonies - the Crown decides what procedure to follow) for a BAC of the new minimum is $1500, and for a BAC of 160 or more the new minimum is $2000; the maximum sentences are the same refusal has a new minimum of $2000 there is a new offence of Low Blood Drug Concentration with a minimum $1000 fine Dangerous, Fail to Stop, Flight from Police and Drive Disqualified - there is no minimum, and a 10-year maximum. The maximum used to be five years, as did the punishment for Impaired. Eighteen months used to be the maximum for summary procedure Impaired. Impaired Bodily Harm is now a hybrid offence (it used to be straight indictable) with a summary procedure maximum of two years less a day and an indictment maximum of ten years Impaired Causing Death - the maximum remains life in prison Refusal, where death has occurred in an accident involving the client s vehicle, the maximum is life (but oddly the minimum is only $ ) there are some benefits to blowing and blowing low, as opposed to not blowing and getting convicted of refusal, given the different minimums Marijuana As many of you will know, Canada legalized marijuana (more or less) back in October. It s not 100% legal, with the illegality normally related to how much you have or how old you are, and unless you are authorized you can t sell it (30 grams for adults, 5 grams for youth or any amount of illicit cannabis [cannabis that was obtained from a person who is prohibited from selling it]). If you are an adult you can sell it, but you can t sell more than 30 grams. You can t sell it to youths, you can t sell it to an organization, and you can t sell it if it is illicit. I am not going to get into some of the other rules, however, I would note you can still go to jail for breach of the Cannabis Act. Page 6

115 112 Of relevance to your clients, perhaps, the importation or exportation of cannabis is prohibited. Importing cannabis is punishable by up to 14 years in jail. By importing, of course, I mean importing to Canada. We also have rules against exporting it to the US, but that is not going to be of as much relevance to your clients, I imagine, unless they go on holiday and decide to bring it back over the border. That is also punishable by up to 14 years in jail. John K. Lefurgey, Partner Martens Lingard LLP 43 Church Street, Suite 700 St. Catharines, Ontario, Canada L2R 7E Phone / Fax jlefurgey@martenslingard.com Web Page 7

116 113 Border Crossing Issues into Canada for U.S. Citizens with Alcohol Related Offenses Jamie Fiegel, Esq. Fiegel & Carr Law Firm

117 114 Jamie L. Fiegel Partner Telephone (716) Facsimile (716) Admitted in New York RCIC Canadian Consultant Foreign Legal Consultant Law Society of Upper Canada Jamie L. Fiegel, Esq. U.S. Immigration Attorney Canadian Registered Immigration Consultant Foreign Legal Consultant Canada Jamie Fiegel, Esq. is a U.S. Immigration Attorney and a Registered Canadian Immigration Consultant. Currently the Senior Partner at Fiegel & Carr Law Firm, Ms. Fiegel has been focused on Immigration Law for over 14 years. Ms. Fiegel understands the unique challenges of U.S. and Canadian Immigration as she has personal experience with the processes in both countries. Ms. Fiegel immigrated her Canadian spouse to the U.S. and years later immigrated herself to Canada. Her children are all citizens of the U.S. and Canada through the process of derivative citizenship. She also has experience owning businesses both in the U.S. and Canada. Navigating through the Canadian and U.S. immigration and customs process firsthand, facilitated the development of Ms. Fiegel s unique expertise in resolving immigration issues on both sides of the border. Fiegel & Carr Law Firm is focused on corporate, small business and individual clients who desire to obtain work permits, visas, permanent residency and/or citizenship in the United States and Canada. Fiegel & Carr Law Firm also helps clients solve complex border issues, including previous denials and criminal admissibility issues. Jamie Fiegel and her partner Kelly Carr understand that immigration is difficult and uncertain, especially today. They have successfully helped clients with all types of needs and backgrounds achieve their immigration goals. Born and raised in Buffalo, NY, about 15 minutes from the U.S./Canada border, she earned her Juris Doctor degree from the University at Buffalo Law School in She has focused on Immigration Law for the entirety of her career. In 2015, Ms. Fiegel recognized the extreme need for competent Canadian immigration counsel. She began the education and necessary credentials required to become a Registered Canadian Immigration Consultant. Since that time, Ms. Fiegel has hit the ground running, being successful in assisting clients in regaining entry into Canada who were previously inadmissible, obtaining work permits, obtaining permanent residency and acquiring Canadian citizenship. Since 2005, Ms. Fiegel has been invited to speak on the topic of immigration law by numerous organizations in the U.S. and Canada. These include both private and government organizations. Fiegel & Carr Law Firm is headquartered in Buffalo, NY. Buffalo & Fort Erie 403 Main Street Suite 420, Buffalo, NY 14203

118 115 Jamie L. Fiegel Partner Telephone (716) Facsimile (716) Admitted in New York RCIC Canadian Consultant Foreign Legal Consultant Law Society of Upper Canada Canadian Inadmissibility What does it mean to be inadmissible to Canada? When one is classified as inadmissible to Canada, you can be denied entry. You must obtain relief in order to overcome that inadmissibity. Some examples of reasons why individuals may be inadmissible are as follows: You have ever been arrested; You have been convicted of a crime anywhere in the world; You are deemed to be a security risk, etc. What are the options after a Driving Under the Influence Conviction? Driving Under the Influence is a crime under one single section of the current Criminal Code of Canada. Therefore, ANY conviction for Driving Under the Influence from DUAI (violation) to DWI (felony) equates to the same section under the Canadian Criminal Code. As such, it renders the client inadmissible to Canada. After December 18, 2018, the Criminal Code of Canada will be amended to increase the punishment for Driving Under the Influence to a maximum period of 10 years imprisonment. As a result, all arrests that take place after December 18, 2018 will be considered Serious offenses under the Canadian law. The following are options to regain admissibility for those whose offense took place prior to December 18, 2018 or after December 18, 2018.: Temporary Resident Permit: The Client is inadmissible but has a reason to travel to Canada that is compelling. A TRP would be used in circumstances where you need to be in Canada on a temporary basis. Criminal Rehabilitation: This type of relief would be a permanent solution. To be considered rehabilitated, it requires the client to prove they are rehabilitated and not a threat to the Canadian society. You are not eligible to apply for Criminal Rehabilitation until five years has elapsed since the completion of the last aspect of your criminal sentence. Deemed Rehabilitated: If the client has one conviction and 10 years has passed since the completion of all sentencing requirements, then they should be considered Deemed Rehabilitated. Arrests that occurred after December 18, 2018, will NOT be eligible under the Deemed Rehabilitation section of the regulations since it will then be considered a serious crime. Authorized Representatives Attorneys licensed in the U.S. do not qualify as authorized representatives and are not authorized by any Canadian regulatory or licensing authority to provide these services to their clients. It is an offence in Canada, and contrary to many provisions under the Code of Professional ethics in NYS, for anyone other than an authorized representative [under A91 of Immigration Refugee Protection Act (IRPA) for immigration matters and A21.1 of the Citizenship Act for citizenship matters] to represent or advise clients for a fee or other consideration. Buffalo & Fort Erie 403 Main Street Suite 420, Buffalo, NY 14203

119 116 Entering Canada with a DWI: Admissibility and Regulatory Changes Jamie Fiegel jfiegel@fiegelcarr.com Licensed Canadian Immigration Legal Consultant Driving Under the Influence Driving Under the Influence is ONE section in the Canadian Criminal Code New York State has levels of Driving Under the Influence (DWAI (DUI), DWI misdemeanor, and DWI felony) This means ALL Driving under the influence convictions REGARDLESS of level or punishment, renders you INADMISSIBLE to Canada 1

120 117 Current Regulations If you have ONE conviction and 10 years has passed since the completion of the last aspect of your sentencing, you can be considered DEEMED Rehabilitated.* If you have MORE THAN ONE conviction, you can NEVER be DEEMED Rehabilitated and MUST file a Rehabilitation Application at the Consulate in order to regain the ability to reenter Canada.* Remember it is THE CLIENT S responsibility to prove they are admissible, not the Officer s responsible to prove they are inadmissible. *Must be an indictable or hybrid offense New Regulations After December 18, 2018, Driving Under the Influence are considered a SERIOUS crime in Canada. Therefore, no one arrested for Driving Under the Influence after 12/18/18 will be able to be DEEMED Rehabilitated regardless of passage of time. The Bar for approval will be higher. The fee increases from $200CA to $1000CA for Rehabilitation Cases. 2

121 118 Doesn t Canada Realize What Effect This Will Have? YES they do! Before this was voted on, it was brought to the legislators attention the effect that this change would have on immigration, it passed anyway. However, the Minister of Immigration of Canada has assured us that he will try to stop these effects. A letter has been obtained from the Canadian Bar Association outlining these proposals. From what we know, the only policy has been given to CBSA and it is only Internal. This Photo by Unknown Author is licensed under CC BY-SA New Policy Grandfather in those that are Deemed Rehabilitated Grandfather in those that have been granted Rehabilitation at the Consulate 3

122 119 What if client has 2 DWI s? If client has more than one DWI or one DWI and another conviction that renders you inadmissible you can never be DEEMED Rehabilitated. How does Deemed Rehabilitation and Rehabilitation Work? Has 10 years passed since the end of the sentence? Has 5 years passed since the end of the sentence? What were all conditions of sentencing? What was the last item completed? How many convictions does this client have and what were the dispositions of each? 4

123 120 What if it hasn t been 5 years since the end of the sentence? A compelling reason to enter Canada can provide an opportunity for a Temporary grant of admissibility to Canada. A Temporary Resident Permit or TRP can be obtained at an Airport, Port of entry, or through the consulate. This can bridge the gap in time to get you to the full Rehabilitation Application Authorized Representatives Attorneys licensed in the U.S. do not qualify as authorized representatives and are not authorized by any Canadian regulatory or licensing authority to provide these services to their clients. A authorized representative is defined in the Canadian Immigration Refugee Protection Act (IRPA) and on the Canadian Immigration website ( To qualify as an authorized representative, one must be a member of any one of the following Governing and Regulatory bodies: Citizenship or immigration consultants who be a member of the Immigration Consultants of Canada Regulatory Council. Lawyers or notaries who must be a member of a Canadian provincial or territorial law society, or the Chambre des notaires du Québec. or Paralegals (Ontario only) who must be members of the Law Society of Upper Canada. 5

124 121 Punishment for Unauthorized Representatives It is an offence for anyone other than an authorized representative [under A91 of Immigration Refugee Protection Act (IRPA) for immigration matters and A21.1 of the Citizenship Act for citizenship matters] to represent or advise clients for a fee or other consideration. This includes whether you submitted a Use of Representative Form or if you did not and instructed the client to mail the package in on their own. Consulting clients on these matters is NOT a work around. The Canadian Immigration website (Canada.ca) states Remember: if you pay a representative or compensate them in any way in exchange for their services, we consider that paid and they must be authorized. If convicted in Canada, (whether the individual knowingly and/or directly or indirectly committed the offence) the individual can be fined or imprisoned, or both. Both the IRPA (section 91(9)) and the Citizenship Act (section 29.1) have offence provisions. The punishment on conviction for an offence includes maximum fines of $100,000 and/or imprisonment for up to two years upon conviction by indictment; and of $20,000 and/or imprisonment for up to six months on summary conviction. QUESTIONS? Jamie Fiegel, Esq. info@fiegelcarr.com