Area of Law: Criminal Records
Answer # 2207
Can someone with a Canadian Pardon or Record Suspension enter the USA?Region: Ontario Answer # 2207
American immigration law does not recognize a Canadian Pardon or Record Suspension (RS). Customs and Border Patrol (CBP) officers are required, under the American Immigration and Nationality Act, to look at a person’s convictions to determine if they are allowed to enter the USA. The Board of Immigration Appeals has repeatedly stated that no effect is to be given to a rehabilitative statute that purports to expunge, dismiss, cancel, vacate, discharge, or otherwise remove a record of conviction. And that is precisely what the Canadian Criminal Records Act does; it allows people to obtain an RS that effectively removes their criminal record.
So what does this mean in practice? Well, if a person tried entering the USA before receiving a Pardon or RS, and the CBP officer discovered the criminal record information during a routine screening, then the information would be downloaded into the American computer system. The criminal record information will stay in their system even after the individual obtains a Pardon or RS or otherwise removes the criminal record in Canada. From then on, the American Officials can easily access the information and will use it to deny the individual entry to the United States, unless a USA Entry Waiver is obtained.
If, however, a person’s criminal record was never discovered by CBP officers before the individual received a Pardon or RS (or had the record destroyed as in the case of not-guilty outcomes), then the CBP officers will not be able to access it because it is no longer in either of the RCMP data banks accessible to the USA.
Once someone’s RCMP record has been pardoned, suspended, or otherwise removed, a CPIC check will not show any Canadian criminal record. In the case of Pardons and Record Suspensions, the criminal record is sealed in a separate data bank. In the case of non-convictions, when the record is removed properly, it is either purged (transferred to a separate data bank and then destroyed) or completely removed and transferred to the arresting police force for destruction. In either situation, the USA will no longer have access to these records.
Many people whose records were never discovered by the USA are confused to whether thy have to admit a past criminal history after they have removed their criminal record. This is a very interesting situation. From the perspective of Canadian law, the crime has been removed from public record and the person is supposed to answer ‘No’ if asked, “Do you have a criminal record”?
In fact, Canadian human rights laws make it illegal to discriminate against a person who has received a Pardon or RS. Further, section 11 of the Canadian Charter of Rights and Freedoms establishes that if a person is found guilty and punished for a crime, he or she is not to be tried or punished for it again. The USA, however, only recognizes Canadian criminal laws that gave rise to the criminal record. It does not recognize Canadian laws that pertain to criminal record removal and the right not to be discriminated against once the record has been removed. This means that, when it comes to criminal records and admitting Canadians into the USA, our record removal laws – purges, destructions, pardons and record suspensions – our human rights laws, and Canada’s Charter are not recognized by the USA.
If you have been charged with a criminal offence, refer to our criminal law section.
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