La loi vos droits

Offenders and Accused Persons

Entering the United States with a Criminal Record

A criminal record is created every time a person is convicted of a criminal offence. The record keeps track of offences and convictions. A criminal record can be used to justify a more severe sentence if the offender commits other offences later on. Not long ago, a person's criminal record stayed with him for the rest of his life, but now it is possible to receive a pardon.

In this Infosheet, Éducaloi explains the effects of a criminal record, particularly with regards to entry into the United States.

What is a criminal record?

A criminal record is an entry in a register maintained by the Royal Canadian Mounted Police (RCMP). This register contains information about people who have been convicted of one (or more) criminal offences in violation of federal laws such as the Criminal Code and the Controlled Drugs and Substances Act.

Offences under provincial penal laws do not result in criminal records. For example, if you violate the Quebec Highway Safety Code, you will not have a criminal record.

Does a criminal record disappear automatically after a certain amount of time?

No. Even after many years, and even if the offence was a minor one, the criminal record will not disappear automatically.

But if a person applies for and receives a pardon, the record will be filed separately by the RCMP and the information in the file will only be accessible with the permission of the Attorney General.

If a person was under eighteen years old at the time of the offence, the criminal record will automatically become inaccessible after a certain period of time (unless the offence was a very serious one).

Will I have a criminal record if the court granted me a discharge?

Yes, but it is only temporary.

One year after you are granted an absolute discharge, the RCMP will automatically keep your criminal record separate and apart from other criminal records. If you have been granted a conditional discharge, you will have to wait until the probation order expires (three years) for your record to be kept separate from others.

For more information, you can consult the Infosheet entitled Sentencing in Canada  (http://www.educaloi.qc.ca/en/loi/offenders_and_accused_persons/245/).

What are the consequences of a criminal record?

There are several disadvantages to having a criminal record:

• A criminal record may harm your chances of getting a job in certain fields, for example: jobs related to security or finance, being elected mayor or member of the National Assembly, becoming a lawyer, police officer, judge, secret agent, etc.;
  
  
• A criminal record may cause serious hassles while travelling. In fact, you must prove that you do not have a criminal record in order to obtain a visa to enter some countries. (See below for details regarding entry into the United States.)
  
  
• If you have a criminal record, and you are convicted of another crime, you will most likely be punished more severely than a person who does not have any previous convictions. A criminal record is the tool that indicates whether or not someone has ever been convicted of a crime;
  
  
• A criminal record may prohibit you from joining a professional association, from obtaining licences or permits, or from benefiting from certain insurance policies.

Can I enter the United States if I have a criminal record?

If you have a criminal record, it will be very difficult to enter the U.S. American immigration laws are very strict when it comes to foreigners who have a criminal record.

First of all, foreigners who have been found guilty of a crime of moral turpitude are simply inadmissible to the U.S.

A foreigner who has been found guilty of more than one offence is also inadmissible to the U.S., but only if the imposed prison sentence totals 5 years or more.

On the other hand, a Canadian who has received an absolute discharge as a sentence is considered never to have been convicted. Therefore, regardless of the type of offence committed, it is not a ground for inadmissibility to the U.S.

What is a crime of moral turpitude?

This notion is not defined by American law and there is no list of offences of this kind. However, American courts have explained that moral turpitude refers to behaviour that is fundamentally wrong. Generally, this means that the crime requires proof of a specific criminal intent.

Regarding economic crimes, this can mean a crime requiring proof of intent to steal or defraud. For crimes against the person, intent to cause harm will be considered. Most offences of a sexual nature are regarded as crimes of moral turpitude in the United States.

Here are some examples of crimes of moral turpitude: robbery (with violence), burglary, attempted murder, murder, manslaughter, assault of a police officer, fraud, possession of stolen property, arson, prostitution, adultery, kidnapping, etc.

Here are some examples of offences which are not crimes of moral turpitude: common assault, mischief, sending obscene mail, possession of break-in instrument, impaired driving (without harm or death) and regulatory offences(running a red light, fishing without a permit, being in a municipal park at night).

Is a pardon granted in Canada recognized by American authorities?

No. A pardon granted in Canada is not recognized by American authorities. The existence of the conviction remains registered in the computerized database of the American government, even if in Canada this information is protected.

Are there exceptions to these rules of entrance to the United States?

Yes. First of all, if the offence was committed more than 5 years before the request of admission into the U.S. and before the foreigner was 18 years old, the conviction is not a ground of inadmissibility.

If the only conviction in the record concerns a relatively minor offence ("petty offense": punishable by a maximum of one year of imprisonment) and the person was sentenced to 6 months of detention or less, he is not inadmissible on this basis. However, the offence must not be related to drugs.

In these two cases, American authorities cannot bar entry to the U.S. on the basis of a criminal record.

If the criminal record includes an offence relating to drugs, will the situation be treated differently?

Yes. Foreigners convicted of offences related to drugs are inadmissible to the U.S. Immigration services have adopted an attitude of “zero tolerance” toward drug offences.

A foreigner is also inadmissible to the U.S. if the Attorney General of the U.S., a consular officer, or an immigration officer (eg.: the customs officer) has reason to believe that he is trafficking drugs or has links to the world of trafficking.

Inadmissibility extends to the person’s spouse and children if they have received financial upkeep from the trafficking activities in the last 5 years.

I was told that it is possible to obtain a waiver before entering the United States. Is this true?

Yes. A waiver can be useful for foreigners with a criminal record that bars them from entering the U.S. If a person obtains an entry waiver in advance, this means that the American government will not consider the conviction as a ground for inadmissibility to the U.S.

To obtain a waiver, you must contact the American authorities. The process can take several months and you will have to pay certain fees. The officer delivering the waiver has almost complete discretion in deciding whether or not to grant your request.

Be careful, this waiver is not a pass or general permission to enter the U.S. Once obtained, it only permits you to counter the effects of the conviction. At the border, the immigration officer still has the power to refuse entry on the basis of other criteria or rules, or because of the discretion accorded to him by the law.

When questioned by the customs officer, am I obliged to tell the truth?

Yes. If it is discovered that a foreigner has not told the truth or has tried to induce an error in an American customs officer, the officer can ban the foreigner from the U.S. for a period of 5 years. This decision is in no way contestable, before a court or otherwise.

Useful Links :

1. RCMP site  [http://www.rcmp-grc.gc.ca/index_e.htm]
2. Site de la National Parole Board site  [http://www.npb-cnlc.gc.ca/pardons/servic_e.htm]