Tag: Canada

Automatic expungement falls short in Canada

The John Howard Society of Canada has a new post about a failed piece of Canadian legislation that would have provided automatic expungement of criminal records in that country.  The post describes the effort to remedy the shortcomings of the current “one-at-a-time” record-clearing system, which it says is expensive (more than $600 to apply), bureaucratic, and “systematically works against poor and marginalized people.”  As an example, it documents Canada’s serious “takeup” problem with its recent efforts to clear cannabis possession convictions: “despite the government’s claims of an enhanced process to grant pardons for cannabis possession now that it is legal, only a handful of the 250,000 or so Canadians with such records have received pardons so far.” The post also discusses our report documenting U.S. expungement reforms in 2019, noting that while the problem of criminal records in this country is “much greater” than it is in Canada, we seem to be making better progress in dealing with it. We reprint the introduction to the post below, and link to the piece. Expunging criminal records February 26, 2020 Last year Senator Kim Pate introduced a bill that would provide automatic expungement of criminal records in Canada.  Under this bill, criminal records would automatically be sealed after a certain amount of time had elapsed following a criminal sentence unless there had meanwhile been a new criminal charge or conviction. Expungement of criminal records is important because a criminal record has many harmful effects for a person’s entire lifetime, even decades after the end of their sentence.  It is important to keep in mind that 3-4 million Canadian adults, or about 1 in 8, has a criminal record of some kind.  Wherever you live in Canada, you likely have neighbours with a record.  But, as another post on this blog showed, most people never commit a second crime, and this likelihood declines with every year that passes. Read more Read more

Traveling to Mexico with a criminal record

Searching for information on whether people with a criminal record may encounter problems traveling to Mexico, we found nothing relevant on the website of the Mexican Embassy in the U.S..  The State Department website contains only a very general warning: Prior Criminal Convictions: U.S. citizens should be aware that Mexican law permits immigration authorities to deny foreigners entry into Mexico if they have been charged or convicted of a serious crime in Mexico or elsewhere. However, the website of the Mexican Embassy in Canada explains Mexico’s policy in somewhat greater detail, listing the crimes that are likely to result in a refusal of entry: Immigration authorities may decide to refuse the request to enter the country if the applicant is subject to criminal process or has been convicted of a serious crime as defined by national laws on criminal matters or provisions in international treaties or conventions that the Mexican State is party to, or if the applicant’s background in Mexico or abroad could compromise national or public security, in accordance with Article 43 of the Migration Law. According to Article 194 of the Federal Code on Criminal Proceedings, serious crimes include all crimes that have a significant, negative effect on the fundamental values of society. Serious crimes include, among others: manslaughter; terrorism and international terrorism; sabotage; piracy; genocide; prison break; attacks on public thoroughfares; drug-related crimes; corruption of minors; child pornography; exploitation of minors; falsifying and counterfeit of currency; rape; highway robbery; trafficking in minors; trafficking in undocumented persons; aggravated robbery; vehicular theft; extortion; crimes against the environment, committed with intent; forced disappearance of persons; bearing arms reserved for the exclusive use of the Army, Navy or Air Force; smuggling into the country firearms not reserved for the exclusive use of the Army, Navy or Air Force; smuggling and comparable crimes, and; tax fraud and comparable crimes. Anecdotal evidence indicates that registered sex offenders will not be permitted entry to Mexico. Beyond that, we have little information on how the above policy is being administered, or on what the possibilities for relief there may be.  By comparison, Canada’s rules and procedures are clear, detailed and apparently relatively flexible. Read more

Canadian travel restrictions based on criminal record

Most Americans can freely visit Canada. However, if you have a criminal history, you may be refused entry.  This post describes the circumstances in which a criminal record (including DUIs) will result in your being inadmissible even as a visitor, how long inadmissibility lasts, and what you can do to regain the right to travel freely to Canada. Were you convicted? If you were convicted of a crime in the United States or abroad, this will likely make you “criminally inadmissible.”  Even if you were charged with an offence but never convicted, it is a good idea to travel with all your court documents demonstrating that there is no conviction on your record. Carrying all these documents, though not required, is highly recommended to avoid any confusion or refusals at the border as the onus is on the applicant to demonstrate that they are not inadmissible. Border officers have the option to deny admission on grounds that it is reasonable to believe a person committed an act that would be an offence in Canada, so that pending charges may be grounds for a finding of inadmissibility.  A guilty plea followed by dismissal of charges pursuant to a deferred adjudication scheme may also be considered proof of commission of an act. Canadian border officers have access to the NCIC which is a national database kept of all criminal convictions in the United States.  Upon presentation of a passport or enhanced drivers license, the database can be accessed, this is how the Canadian border officers know about arrests, charges and convictions for offences in the United States. If you were convicted of an offence, or if a border officer has reason to believe you committed an offence, you may be inadmissible. Depending on the following factors, you may require an application made the Canadian government, to be able to travel to Canada.  These  factors include the following: The nature of your offence: were drugs or weapons involved, did the offence involve a minor, was the offence of a sexual nature – these are all factors that make it more difficult to travel & will likely require permission from the Canadian government, as these types of offences typically carry a maximum sentence of 10 or more years, under Canadian law and are therefore considered “serious criminality”. The number of offences on your record: individuals with only one offence may be deemed rehabilitated simply by the passage of time – please see below. A person with more than one conviction will have to apply in order to cross the Canadian border. The date of completion of sentence, including payment of fines, completion of probation – this factor determines which application will be applicable to your situation. If you must apply in order to resolve your admissibility, applications are processed at the discretion of an immigration officer.  The likelihood of success also depends on the factors listed above in addition to the requirements of each application listed below. Temporary admissibility – Temporary Resident Permits If you completed all the terms of your sentence 1-5 years ago, you will require a Temporary Resident Permit (TRP). A TRP acts as a temporary pass which allows you to enter Canada, but it does not erase your inadmissibility. For these applications, you need to include a specific reason for travelling to Canada. For example, you have been convicted of a DUI in the last 5 years but need to come to Canada for work purposes, a TRP can help you temporarily overcome your inadmissibility. A TRP can be used for a wide range of purposes though not as an avenue for permanent residency. When applying for a TRP, you will need to detail the exact circumstances for travelling to Canada. Your need to enter Canada must be greater than the potential threat you pose to Canadian society. Good reasons to travel include business, school, or visiting a spouse or family member. Though you can apply for multiple entry TRPs, you cannot use a TRP to help you enter Canada forever. Criminal Rehabilitation If you completed all the terms of your sentence 5-10 years ago, you are eligible to apply for Criminal Rehabilitation. This application is a permanent solution which clears your criminal inadmissibility and automatically makes you eligible for multiple entries into Canada. Processing times are longer for this application, but Criminal Rehabilitation is valid for the rest of an applicant’s life (unless another offense is committed). In this application the officer is looking to see that the applicant has taken positive steps to rehabilitate themselves, such as following substance abuse programs or joining AA, for example.  The eligibility period is required as the Canadian government wants to ensure that there are no offences within the last 5 years before they remove your inadmissibility permanently.  Due to processing times, if you have urgent travel, it is recommended to also apply for a TRP while you await the approval of your Criminal Rehabilitation. These permits are good if you travel to Canada frequently. “Deemed Rehabilitated” If you only have one offence on your record, the sentence was completed over 10 years ago, and the offence was “non-serious” (punishable by less than ten years in prison under Canadian law), you will be “Deemed Rehabilitated.” This means that you will neither require a TRP nor Criminal Rehabilitation. In these specific cases, you will have been deemed criminally rehabilitated simply by the passage of time. However, Deemed Rehabilitation can only occur under these specific circumstances, so be sure to check your record carefully. All of these applications can be done without the assistance of an attorney, however if you choose to seek the help & advice of an attorney, you should be aware that only a Canadian lawyer, notary or consultant is legally authorized to represent you.  It is highly recommended to obtain a national fingerprint based background check from the FBI, which will show all of the offences on the applicant’s record, going back to their 18th birthday.   In cases where an application is not required (ie: if a person is deemed rehabilitated by the passage of time or there was no conviction) it is recommended to carry a legal opinion letter, written by a Canadian attorney who has reviewed your record, as well as your court documents, to avoid any hassle at the border. Severity of Offences and Border Security The decision to admit a foreign national to Canada is entirely at the discretion of the Canadian immigration officer at the border.  Though you can be denied entry for any level of criminal activity, your likelihood of being able to enter Canada declines the more offences you have and the gravity of the offences. Individuals are assessed at the border on a case-by-case basis based on the information provided to the Canadian Border Services Agency. As such, sometimes individuals with lesser offences get turned away at the border if they are not carrying any kind of a permit with them. Canadian border officials have access to the National Crime Information Centre database which logs all crimes monitored by the FBI and as such will have a full list of crimes committed in the United States. As such, it is always a good idea to apply for one of these permits if you have a criminal history, or if you are on parole or probation. The severity of a foreign offence is weighed based on its equivalence under Canadian law. In the United States, offences are either felonies or misdemeanors which translate roughly to indictable and summary offences in Canada (note however that this is the general process—you should always check for your specific offence). For example, a single DUI in the US is generally considered a misdemeanor, and in Canada would be a summary offence unless someone was injured. Hybrid offences for charges like assault are left to the discretion of the prosecutor. As such, even if someone has only been convicted of a misdemeanor in the United States, it may still be an indictable offence in Canada and they may be inadmissible. DUIs DUI convictions and all variations are grounds for inadmissibility to Canada, as the offence is a hybrid offence under Canadian law. Individuals with a DUI conviction (or DWI, OWI, OMVI, DWAI or any other similar driving offence) will require either a TRP or Criminal Rehabilitation to enter Canada. Even though these may be considered as misdemeanors in some cases or in some U.S. states, they will render an individual criminally inadmissible to Canada. Completing your application Though the applications can be done by the applicants, they are complicated and lengthy. One mistake on an application can lead to a refusal or delays of several months. As such, though it is not required to hire an attorney, it can be greatly beneficial. Make sure you utilize an attorney who is in good legal standing with their provincial Bar Association. Additional travel tips Don’t forget that all adults travelling between Canada and the United States will require a passport! (Note: Children under the age of 15 can travel with a certified copy of their birth certificate if accompanied by their parents on land travel only.) If you travel frequently and don’t have a criminal record, you may want to get a NEXUS card which will help facilitate travel at ports of entry between Canada and the United States. Be prepared to declare all items of value—fines are much more costly than the duty and taxes you would otherwise have to pay. If travelling by land, check your border wait times ahead of time to ensure minimal delays and smooth passage. Read more

International travel restrictions based on criminal record

Below is another excerpt from the second edition of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (West/NACDL, 2d ed. 2015)(forthcoming), this one about restrictions on international travel based on criminal record.  The first section discusses the subject in general terms, while the second section describes restrictions on travel to Canada for individuals with a foreign conviction, and the methods of overcoming these restrictions.  (An earlier post described methods of neutralizing Canadian convictions for purposes of travel to the U.S.) 2:61. International travel restrictions — In general* A conviction can restrict a U.S. citizen’s freedom to travel outside the United States in several ways. First, domestic laws revoke passports for individuals convicted of designated offenses. When a person is convicted of a felony drug offense for conduct that involved international travel, for example, his passport will be revoked under federal law[1]. The revocation period lasts for the full duration of the sentence imposed for the drug offense[2]. Persons with a felony conviction ordinarily will not qualify for “trusted traveler” programs operated by U.S. Customs and Border Protection, such as the Global Entry program (“expedited clearance for pre-approved, low-risk travelers upon arrival in the United States”), or the NEXUS, SENTRI and FAST programs (pre-cleared personal and commercial travel across the U.S. borders with Canada and Mexico).[3]  All applicants for these programs “undergo a rigorous background check and interview before enrollment.”  Ironically, in light of the stated purpose of these programs to expedite international travel, persons who apply and are rejected based on criminal history may find themselves routinely selected for further examination when entering the United States. Foreign laws may also restrict the travel of individuals convicted in U.S. courts.   Some countries, most notably Canada, prohibit individuals convicted of certain offenses from entry.[4]  However, countries that only require travelers to present their passport for admission generally do not screen for a criminal record.  Canada is a special case, as the Canada Border Services Agency (CBSA) border agents have access to the National Crime Information Center (NCIC) database, using the traveler’s passport, which allows them to see any conviction going back to a traveler’s 18th birthday.[5] Other countries do not have immediate access to the NCIC database, which means that this issue only arises if the individual is applying for a visa to visit, work, study, or immigrate.  On visa applications, there is usually a question regarding criminal convictions and arrests, and failure to answer truthfully may have serious consequences.  U.S. citizens may also be asked to present a “certificate of good conduct” or “lack of a criminal record” for a variety of reasons for use abroad including adoption, school attendance, or employment.[6] Some countries do not automatically exclude individuals with prior convictions from entry but require certain convicted individuals to apply to the country for pre-clearance prior to travel.[7]  Individuals with criminal records who wish to travel internationally should first contact the local U.S. embassy of the nation they wish to visit for up-to-date information about the nation’s policies regarding admission.   2:62. International travel restrictions – Canada Before travelling to Canada, individuals with a criminal history should verify their entry status, since even seemingly minor offenses may render an individual inadmissible to Canada. The Canadian Immigration and Refugee Protection Act (IRPA)[8] states that a foreign national may be inadmissible on the grounds of criminality if convicted outside of Canada of an offense that, if committed in Canada, would constitute an “indictable offense” under an Act of Parliament.[9]  Thus, simply, any offense committed outside of Canada that would be considered indictable in Canada results in criminal inadmissibility. Any offense that could be treated as either summary or indictable is known as a hybrid offense. Hybrid offenses, a majority of the offenses in the Canadian criminal code, are considered to be indictable offenses for the purposes of Canadian immigration.  Summary offenses do not result in inadmissibility.[10] A significant part of the application process to overcome inadmissibility is determining the equivalence of foreign offenses with Canadian offenses.  It does not matter how lightly or severely a given crime is treated in the country where it occurred, or whether it is styled as a felony or misdemeanor.  Thus, a misdemeanor under U.S. law may render an individual inadmissible to Canada while someone with a felony conviction may not be inadmissible.[11]  In some cases it is possible to argue non-equivalence or equivalence to a minor offense to circumvent the inadmissibility regulations and allow the individual to enter without applying for permission. Once the equivalence has been established, it is important to determine the maximum authorized sentence under Canadian law, which will be relevant to determining the cost and likelihood of success when applying for relief from criminal inadmissibility.  Offenses that carry a maximum sentence of 10 years or more under Canadian law are considered serious criminality and relief is more difficult to obtain.  Non-serious criminality is a conviction for an offense with a maximum sentence of less than 10 years. The processing times and fees for applications involving non-serious criminality are less. When a foreign conviction is determined to be an indictable offense under Canadian law, whether it will render the traveler inadmissible depends on several factors: How long ago the conviction occurred; The severity/nature of the offense in Canada; How many offenses the individual has been convicted of; and Whether the individual can demonstrate they are unlikely to reoffend.[12] If travelers can prove that they have not been convicted of an offense that would render them inadmissible because they have received a deferral or conditional discharge or because the offense has been expunged or pardoned, applying for relief is not required. Criminally inadmissible visitors to Canada may petition for a “Criminal Rehabilitation” from the Canadian consulate if at least 5 years have passed since the completion of their sentence, including payment of fines and completion of probation or parole.[13] If granted, such a document overcomes barriers to entry. If fewer than 5 years have passed, an individual with a significant economic or humanitarian & compassionate reason to travel to Canada may request a Temporary Resident Permit (TRP), to temporarily overcome inadmissibility.[14]  An individual who has only one non-serious conviction (conviction for an offense carrying a maximum sentence of less than 10 years under Canadian law) may also be “deemed rehabilitated”[15] if more than 10 years have passed from the completion of all conditions of their sentence (or five years in the case of two or more summary offenses).[16] Only a lawyer certified by one of the provincial bar associations in Canada, or a certified Canadian immigration consultant, is authorized to represent an individual in a Canadian immigration application, including Criminal Rehabilitation and TRP applications.[17]   * * * * * * * * * * * * * * * *   * The authors wish to thank Marisa Feil of Montreal, Canada, for her contributions to §§ 2:61 and 2:62. [1] 22 U.S. Code § 2714 (a) http://www.law.cornell.edu/uscode/text/22/2714 [2] 22 U.S. Code 2714 (c). [3] These programs are described at http://www.cbp.gov/travel/trusted-traveler-programs. [4] IRPA S.C. 2001, c.27 s.36(2). [5] http://www.cbsa-asfc.gc.ca/agency-agence/reports-rapports/pia-efvp/atip-aiprp/infosource-eng.html.  See § 2:62. [6] See http://travel.state.gov/content/passports/english/abroad/legal-matters/criminal-record-check.html. [7] In the United Kingdom, for example, individuals with criminal records are encouraged to seek entry clearance prior to travel. Clearance will ordinarily be denied for “conviction in any country including the United Kingdom of an offense which, if committed in the United Kingdom, is punishable with imprisonment for a term of twelve months or any greater punishment or, if committed outside the United Kingdom, would be so punishable if the conduct constituting the offense had occurred in the United Kingdom.” U.K. Imm. R. 320(18). [8] IRPA S.C. 2001, c.27 s.36(2)   http://laws-lois.justice.gc.ca/eng/acts/I-2.5/. [9] Immigration and Refugee Protection Act, SC 2001, c 27, s.36 http://laws-lois.justice.gc.ca/eng/acts/I-2.5/.  Canada does not use the misdemeanor/felony classification system; offenses in Canada are either summary or indictable offenses, depending on the authorized punishment. [10] Summary offenses under the Canadian Criminal code include Trespassing at Night, Causing a disturbance, or taking a motor vehicle without consent (not Theft of an automobile).  http://www.cic.gc.ca/english/resources/manuals/enf/enf02-eng.pdf [12] http://www.cba.org/cba/cle/PDF/IMM11_Sedai_ENF14%20%282008-04-21%29.pdf. [13] IRPA S.C. 2001, c.27 s..36(3).  The application for Criminal Rehabilitation is available with instructions at http://www.cic.gc.ca/english/information/applications/rehabil.asp. [14] http://www.cic.gc.ca/english/information/inadmissibility/permits.asp. [15] Immigration and Refugee Protection Act, SC 2001, c 27 s. 18(2). [16] http://www.cic.gc.ca/english/information/inadmissibility/rehabilitation.asp. [17] http://www.cic.gc.ca/english/information/representative/rep-who.asp.  The penalty for a receiving compensation on this type of application by an unauthorized representative is a fine of up to $100,000. http://news.gc.ca/web/article-en.do?nid=824719. Read more

Canada stiffens policy on sealing of criminal records – but it still looks pretty liberal from here

A couple of news items about an increase in clemency applications in Canada made me curious to learn more about how restoration of rights works in our Northern neighbor. Canada has long had a policy of virtually automatic sealing of criminal records through what is known as a “record suspension” (before 2012, called a “pardon”).  The Criminal Records Act (CRA) makes record suspension available from the Parole Board of Canada for any offense except sex crimes involving children, and to any individual except those convicted of multiple serious crimes, after waiting periods of five years from completion of sentence for “summary” offenses and 10 years for “indictable” offenses.  (Prior to 2012 the waiting periods were three and five years.)  Non-conviction records may be purged sooner. Once a record has been suspended, all information pertaining to convictions is taken out of the Canadian Police Information Centre and may not be disclosed without permission from the Minister of Public Safety.  The CRA states that no employment application form within the federal public service may ask any question that would require an applicant to disclose a conviction.  It is unlawful under Section 3 of the Canadian Human Rights Act to discriminate in employment or housing or union membership against anyone based upon “an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.” In 2012-13 the PBC ordered more than 6600 pardons and records suspensions, 97% of all applications received.  (According to the PBC website, since 1970 more than 460,000 Canadians have received pardons and record suspensions. “96 percent of these are still in force, indicating that the vast majority of pardon/record suspension recipients remain crime-free in the community.”) The 2012 amendment of the CRA to extend the eligibility waiting periods has resulted in an increase in applications for the extraordinary remedy of “clemency,” which has higher standards but no eligibility waiting period.  Clemency, formally known as the “Royal Prerogative of Mercy” (RPM), may be granted in federal cases by the Governor General or the Governor in Council (i.e. Federal Cabinet), and applications are staffed by the PBC.   Clemency is intended “only for rare cases in which considerations of justice, humanity and compassion override the normal administration of justice.” All other avenues of relief must have been exhausted, and there must be must be “clear and strong evidence of injustice or undue hardship.”  In contrast to the thousands of ordinary records suspensions granted each year in Canada, there are only a handful of these extraordinary clemency grants.  In 2012 there were 52 RPM applications and only 12 grants. The PBC charges $631 to process a records suspension application (its website warns that there may be additional administrative fees) and suspension orders are executed by the RCMP.  It generally takes from six months to one year to process an application, a bit longer if an application has previously been denied. There is no need to apply for a records suspension for non-conviction records, which are purged by the RCMP upon request absent compelling law enforcement reasons. The primary criterion for relief is that a person must not have committed any further crimes, and if denied an applicant may reapply after a year.  If a person whose record has been suspended commits another crime, the suspension order may be revoked. The PBC website emphasizes that there is no advantage to using the services of third party providers that hold themselves out as able to expedite record suspension applications or even grant them.  And there appear to be a number of websites that use official-looking symbols and visuals, and promise an inside track for using their services.  Judging from the tenor and frequency of warnings on the PBC website, “suspension mills” are the source of considerable official annoyance. It is nor clear whether a record suspension will be sufficient to enable a person with a Canadian conviction to enter the United States: while no record will ordinarily show up in a check of RCMP databases, U.S. authorities have access to other law enforcement databases and there is no relief from inadmissibility in UJ.S. immigration law.  While Canada has a strict policy of not allowing a person with a U.S. criminal record to enter Canada even for visiting purposes, this bar may be overcome by a showing that a person is “rehabilitated.”  For minor offenses a person may be “deemed rehabilitated” after a waiting period, but those convicted of more serious offenses must apply to Canadian immigration authorities through the closest consulate. In summary, the Canadian policy of limiting public access to criminal records appears to reflect the European and British approach to privacy of personal data.   There is not a single U.S. jurisdiction that offers convicted persons nearly as much opportunity to started over with a clean slate. Read more