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Law and the Border: Criminal Code changes do affect waivers

Not everyone with a criminal record needs a waiver, even if the person has multiple convictions. For example, offenses committed before the person was age 18, typically do not affect admissibility....


Daniel Joyce

Daniel Joyce


Not everyone with a criminal record needs a waiver, even if the person has multiple convictions. For example, offenses committed before the person was age 18, typically do not affect admissibility.

There is an important exception the CIMT rules. A person with only one CIMT is admissible, without requiring a waiver, if the charge is considered a petty offense.

The exact language of the U.S. Immigration statute states that a person with one CIMT is still admissible if “the maximum penalty possible for the crime…did not exceed imprisonment for one year.” (However, the exception does not apply if the person was actually sentenced to prison for more than six months.)

The Canada Criminal Code often allows the Crown to elect one of two alternatives, depending on the circumstances and the severity of the offense. Often, the statute allows the Crown to proceed by “indictment,” in which case the maximum sentence can be several years in prison, or as a “summary conviction,” where there is either no jail time called for, or the maximum jail term is one year or less.

As a consequence, it is often a critical issue to determine whether an offense was handled by indictment or summarily. The rule of thumb for a person with one adult CIMT was that the difference between needing a waiver or not was whether the individual could obtain court disposition records that clearly showed that the Crown proceeded summarily.

But not so fast. For reasons unknown to us, certain offenses in the Canada Criminal Code provide specifically for jail time of up to 18 months for a summary conviction. It appears that the Criminal Code changed this way in 1994, although some of the offenses may have been on the books longer than that.

Commonly encountered CIMT offenses with 18-month maximum jail terms include uttering threats), assault with a weapon (CC 267(b) and sexual assault

This new development adds yet another dimension to the analysis of criminal records.

The Canada Criminal Code changes over time. Some of the changes have been significant, resulting in a renumbering of the criminal offenses (1972 and 1985, for example), while other changes merely amend existing statutes.

In order to determine whether an offense was a CIMT offense, and/or whether it was a summary conviction, we need to go back to the Code in effect at the time of the conviction.

If a Section of the Code changed recently to provide for a maximum jail term of 18 months for a summary conviction, that does not affect a person who committed the offense under the previous statute. It is the actual offense at the time of the conviction, not now, that determines admissibility.

The burden of proof is always on the person seeking admission to the United States, to prove admissibility.

If you are eligible for the petty offense exception, it is up to you to bring the paperwork with you to establish your admissibility.

The Customs and Border Inspection Officer generally does not have access to such detailed information, and will not do that for you.

In all cases where this is an issue, we recommend that you (1) obtain a current RCMP criminal search report, (2) obtain a copy of the actual disposition from the court of conviction, showing the exact Section of the Criminal Code and whether the Crown elected to proceed by indictment or summarily, and (3) obtain a copy of the Criminal Code Section that was in effect at the time of the conviction.

If there is any question about your admissibility, we recommend that you obtain the RCMP criminal search report. This is a required ingredient to any waiver application, and often takes weeks to obtain the report form Ottawa.

If you are ever turned back at the border and told that you need a waiver, you don’t need to build any extra time into the process.

A person possessing a current (less than one year old) RCMP report can put together a waiver application rather quickly.

– Daniel Joyce is a partner with the Buffalo N.Y. law firm Jaeckle Fleischmann & Mugel LLP. He can be reached at (716) 843-3946.


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