Demystifying Eligibility Criteria for Record Suspension
With travel tensions in the United States at an all-time high, gaining access to the country for work or play isn’t always guaranteed, even for Canadians who are living just across the border. There are more thorough inspections and requirements to meet at the border and in international airports. In order to make sure that the travel experience is as smooth as possible, it’s always best to give the U.S. Customs and Border Protection as little reasons as possible to hold you up while you’re attempting to travel into the United States.
However, a criminal record can potentially affect Canadians travelling south, and it can have drastic ramifications on a person’s professional and personal life. Though immigration security is already tight, a criminal record can make gaining entry to the U.S. even harder. But there are ways to avoid being denied at the border. First, let’s look at what a criminal conviction actually entails and how it affects your status as an eligible traveller.
Answering to the Law
At its simplest, the law exists as guidelines to help people understand what they should and shouldn’t do so that everyone can live a peaceful and productive life. And if you break laws, then you will be punished. Sometimes these violations of law are relatively minor, such as driving over the speed limit or causing a disturbance in a neighbourhood by having a very loud party.
But other times, the violations are serious, and no warning or fine is sufficient because the act is deemed criminal. Drunk driving, DUI, Impaired Driving, Over 80, Care and Control of a Motor Vehicle, Dangerous Driving, are examples of a traffic activity that is considered a criminal offence, and other crimes include drug trafficking, breaking and entering, theft, assault, fraud, and assault.
When you are arrested for a criminal act, charges are made against you, your fingerprints and photo will be taken and entered into the arrest record, and then there is a trial with a jury or judge. If at the trial you are found guilty of committing a criminal act, then you will have penalties to pay and potentially a jail sentence to serve or probation. You might think once you have paid the fines and served your time that would be the end of it, but you’d be wrong.
Criminal Acts Are on Your Record for Life
Once a person is out of prison and has returned to public life in Canada, that person now has to deal with the presence of a criminal record. A criminal record is a complete file, stating when an arrest was made, that fingerprints and photos were taken, what the charge was, what the results of the criminal trial were, and how much was paid or how much time was served in jail or on probation. In other words, it is a brief but complete description of exactly what a person did to earn that record.
This criminal record is publicly accessible, but it is not public knowledge. So, someone with a criminal record is not legally required to always tell people he or she has a criminal record. However, anyone who is interested in a person’s background can always ask that person for permission to run a background check. A background check will go straight to the Canadian Police Information Centre, or CPIC, and scan the database there. If a criminal record is present, it will come up.
Who Can Check Your Criminal Record?
Any law enforcement organization can access a criminal record at any time, for no cost at all. That means the city where a person was arrested has easy access to the CPIC information. But it also means that Royal Canadian Mounted Police in the province have access, as well as any law enforcement organizations throughout the world, such as the Customs and Border Protection (CBP) and Department of Homeland Security (DHS) in the United States or INTERPOL for the rest of the world.
Beyond that, any private citizen who is willing to pay an administrative fee can also conduct a background check if they desire to do so. There are no personal details or invasions of privacy included in a criminal record. The only information that is listed relates strictly to crimes, arrests, verdicts and time served.
Long-Term Consequences of Committing a Criminal Offence
One of the first areas of a person’s life where a criminal record can have significant consequences is in career prospects. Criminal record holders are not considered a “protected class.” Thus, the status of having a criminal record is legally allowed to be a factor in determining whether someone is suitable for employment or not.
In other words, while the race, gender, religious affiliation, or sexual orientation of a candidate cannot influence a hiring decision because that is illegal, criminal records can be taken into account. There is nothing illegal about favouring qualified and non-convict candidates over those with a criminal record.
In some cases, the absence of a specific type of criminal record may even be required. Some jobs, especially those within the government, health or financial industries legally require a background check to be conducted to look for the presence of certain criminal violations. Teachers, for example, cannot have convictions for sex crimes involving children on their record and are automatically discounted from employment consideration if they do.
It’s even possible for a background check to affect your living arrangements. Sometimes landlords renting out an available property may ask to conduct a background check before they allow a renter to take hold of an apartment. Refusing to give consent or giving consent and the result showing a record may mean not getting that living space. And for something as important as raising a child, adoption agencies will require background checks as well before moving onto the next stages of the adoption process.
The Solution to Background Checks: A Pardon
There is, however, a way to mitigate these issues, provided that a criminal record holder qualifies. A pardon, known in more contemporary terms as a record suspension, is a way to get a criminal conviction sealed. A pardon doesn’t actually mean that the criminal record is completely erased, never to be seen again. It means that, under ordinary circumstances, people conducting background checks are not going to see a history, and the check will appear as “clean” as someone who has never committed a crime.
However, getting a pardon or record suspension has a few requirements that must be met before one will be granted. The person with a conviction must have served all time in jail, paid fines, and reported in for probation without issue. On top of all that, the person must then live a life without any further convictions for a set period of years based on the severity of the existing conviction.
People who have committed what the law calls a summary offence may apply for a pardon or record suspension five years after all the other requirements have been met. For an indictable offence, there is a ten year waiting period before the convict can apply for a pardon or record suspension.
Travelling Issues after Being Convicted
Another area affecting the life a person with a criminal record is the ability to travel, especially if the destination is the United States. The USA and Canada currently have an agreement, where the USA and its law officers can permanently forbid the entry of any Canadian into the country who has a criminal offence that falls under the American category of “moral turpitude.”
In this case, moral turpitude runs parallel to many common Canadian criminal convictions, including fraud, assault, theft, uttering threats, and drug trafficking. It’s important to note that there is zero statute of limitations on these criminal convictions. A conviction against someone when they were 21 is still as valid and on record 40 years later.
However, this barring of entry into the USA only occurs if a law officer, such as a member of the Customs and Border Protection, decides to conduct a background check. Since these checks are not done consistently, many Canadian criminal record holders enter and leave the USA, sometimes for years without issue, and then one day their record is scanned and find themselves permanently forbidden to enter the country.
People get refused entry or re-entry into the USA for a number of reasons. While the presence of a criminal record is one factor, there are quite a few others that disqualify people. Those who are caught at the border attempting to smuggle in drugs, for example, will be barred. People who enter the USA but then illegally work there, without proper documentation, can also be barred. And people who stay illegally, letting their visa lapse, are forcibly deported back to Canada by the American government are also permanently banned.
Gain Access to the U.S. with an Entry Waiver
A U.S. entry waiver (I-192 and I-194) is a way for people with criminal convictions to enter the United States lawfully. This waiver is a guaranteed form of entry that has even more authority than a record suspension under certain conditions.
If you’ve already been subjected to a background check, and the CBP forbid you from entering the United States, getting a record suspension after the fact will not grant you entry again. Once you’ve been caught in a background check, that information is permanently transferred from the CPIC database to the CBP database. So even if you get a pardon or record suspension, the criminal record will be in the CBP’s records, which is where they will now draw from for future record checks. Record suspensions are only effective if you’ve never had a background check conducted by the CBP or been barred from entry.
The U.S. entry waiver is granted by the Department of Homeland Security in the United States itself. Once you get it, you must present it every time you go to the border or an international airport with a destination bound for the USA. Every time the CBP sees it, they will grant you entry.
Waivers Offer a Temporary Solution
However, a U.S. entry waiver is not a permanent document. There are different “lifespans” for just how long the waiver is valid. It may only be good for a single trip, or one year, or five years. Once the document expires, you don’t just renew the existing one; you must go through the entire application process again.
However, once you get your U.S. entry waiver, you will have no more issues with travelling to the USA. For people who regularly go to America for pleasure or work commitments, this waiver is essential if you want to continue to gain access.
Waiver Applications Are Not Simple or Fast
If you want to get a U.S. entry waiver, then you must be willing to wait. Similar to a pardon or record suspension in Canada, the process is not quick or easy or without added expenses. You will have to produce numerous documents, get endorsements and certifications, and pay a processing fee to have the application submitted and then considered for approval.
All of these things take time, and you will need to make sure that you look at all the information required, especially the formatting and other conditions of submission. Anything that deviates from what the application for a U.S. entry waiver requires can, at best, delay how long your application takes to get processed, and, at worst, invalidate your entire application and require you to start all over again.
Don’t Take Any Chances When Crossing the Border
For both a pardon (record suspension) and a U.S. entry waiver, the applications can be complicated, and even some of the documents requested for these applications may have an application process themselves. If you want to make sure that your application for these documents gets approved, and quickly, then get some help.
Talk to us, and let us guide you through the process. We have years of experience helping people to clear their criminal record or regain the ability to easily and legally enter the United States. We can help you!
Pardons Canada undertakes all necessary steps and procedures for removing your criminal record, including: Pardons/Record Suspensions, Purges, Photograph & Fingerprint Destruction, and U.S. Entry Waivers.
