MONTREAL, Que. - Canadians may be pardoned in their own country for crimes committed in the past. But the US government has a long memory, and doesn't always recognize the Canadian justice system's ab...
MONTREAL, Que. –Canadians may be pardoned in their own country for crimes committed in the past. But the US government has a long memory, and doesn’t always recognize the Canadian justice system’s ability to wipe the slate clean.
Since 9/11, security has intensified at the US border and Canadian drivers who have a criminal record -even if they have been pardoned by the Canadian government -are likely to be turned back, unless they have the proper paperwork to gain access. One of the most predictable questions to be asked by US border guards is about past drug use, even for the most minor incident.
“Drugs are the big one,” says Michael Ashby, founder and communications director of the National Pardon Centre (NPC), which operates offices in Montreal and Calgary.
NPC is a non-profit agency that assists those who seek a pardon from a crime, and/or seek temporary access to the US. In the latter case, the candidate will require a US entry waiver, which is granted by the US government, and allows legal access to the US -despite the existence of a criminal record -if the applicant qualifies.
In this line of work, Ashby has heard plenty of horror stories about interactions with US border guards. One incident he recalls involved a client who was asked by a border guard if he had ever used drugs. The client admitted to “smoking a joint,” years ago, and was subsequently refused entry.
“It’s a bit of overkill to me,” says Ashby, of their response to an offence that the Canadian had never been charged with or arrested for in his own country. “To me, it’s a little bit hysterical.”
Ashby has helped drivers whose lucrative US long-haul careers have been sidelined, as well as clients whose family trip to Disneyland has been halted because of a minor crime, committed long ago.
“It’s sad for families on holidays,” he says. “For truckers, it’s nasty, because all of a sudden a career can come to an end, right away.”
A Canadian pardon is ultimately granted by the federal government, which seals the entire criminal record. All charges and all convictions are removed and kept separate from active criminal files stored in the RCMP database. However, Canadian pardons are not recognized by the US. If the US Department of Homeland security or FBI (which has access to RCMP files even before a pardon is granted) know about the crime before the record was sealed, the US justice agencies have this information “forever,” says Ashby. Despite a pardon, there is an expectation at the US border to divulge past crimes. “You are breaking American law by not telling them,” he adds.
The application process for a US waiver can be a costly and time- consuming process, and if approved, the time period for entry is limited to a one-, three-or five-year travel period. Yet, not all Canadians with criminal backgrounds require a US waiver according to Paulette Gauthier-Roy, of Pardons Inc., located in Sudbury and Toronto. She says that if a crime was minor in nature, and designated a “summary conviction,” which is equivalent to the US “misdemeanor,” crime classification, there should be no problem at the border.
“Usually with one summary conviction, (the visitor) doesn’t need a waiver,” says Gauthier-Roy, who creates a “travel portfolio” for frequent visitors to the US, that specifies the minor nature of the former crime and incorporates all supporting documentation.
“I do it for drivers who have a problem at the US border,”she says, of a comparably minor process that still doesn’t offer any guarantee at the border. “Sometimes they let them in. Sometimes they don’t.”
Gauthier-Roy believes there has been a misunderstanding about this minor category of crime (not related to drug use), on both sides of the border. She says that even the US Department of Homeland Security has advised Canadian applicants, after the application has been approved, that a US waiver is not required in the future, once the minor nature of the crime has been ascertained. On the other hand, a crime that has been designated an “indictment,” or as it is classified in the US, a”felony,”requires a waiver without question, says Gauthier-Roy.
Canadian Pardon Service (CPS) based in Toronto, offers another take on US Homeland Security regulations that determines a requirement for a waiver, whether it’s a summary conviction or by indictment: “It depends on whether it’s viewed as moral turpitude,” says the vice-president of business and marketing, Peter Dimakos, who warns that truck drivers should pay all speeding tickets because US justice agents may take exception to unpaid tickets and possibly confiscate a licence.
“It’s not revoked in Canada: It’s revoked in the US,” says Dimakos who had a client who was incarcerated in the US for not paying a speeding ticket in New York State, and now has a criminal record. “It’s imperative that they do understand what the repercussions are,” he adds.
CPS warns against crossing the border without checking on the status of a former crime, even with a juvenile charge – whether the latter was an “absolute” or a “conditional discharge” from the Canadian justice system.
“With a criminal record and without a US waiver, you may suffer the embarrassment of being arrested, detained, deported, and possibly having the vehicle you arrived at the border with, and property in it, seized, even if you are not the owner or the driver,” states CPS.
For those who may require further legal assistance with this type of cross-border dilemma, Glenn Matthews of Siskinds LLP, offers unique credentials. As a lawyer who specializes in immigration services, he is also licensed in the US, which gives him an intimate, technical understanding of the legal process to seek access to Canada’s southern neighbour, he claims. Like Pardons Inc., and CPS, the London, Ont.-based lawyer advises that not all crimes require a waiver, yet not all US border personnel are necessarily cognizant of the technical idiosyncrasies of the US waiver parameters.
“In fairness to them, they are not given that training,” says Matthews, who notes that one particular exception to the US waiver requirement is shoplifting, which is a crime, but one is often considered petty theft and typically “forgiven.”
Fees for pardons with all the companies listed, run from $300 to $625 and the cost for a US waiver is $395 to $1,000. In addition, US application fee for a waiver is US$545,payable to the Department of Homeland Security.