Legal entry into the United States from Canada is becoming more difficult as policymakers south of the border seek to tighten security in response to perceived threats worldwide. For those Canadians with criminal records attempting to cross the border without acknowledging their criminal history the risks of detention, deportation, and even incarceration have never been higher.
Due to the high volume of traffic between Canada and the U.S. there is often a false sense of security in citizens of both countries that the chances of being caught are slim to none. However, the results of being caught in the U.S. or trying to enter the U.S. with an undeclared criminal record can be severe and should not be ignored.
Pardons vs. Waivers
It is possible in Canada to apply to the National Parole Board for a pardon for a criminal conviction. If the pardon is granted the person’s criminal record is sealed which means that it will not show up in the Canadian databases typically searched by law enforcement agencies on both sides of the border. However the criminal record is not erased and can be disclosed or re-instated in the appropriate circumstances.
In terms of crossing the border a Canadian pardon has no effect on records kept in the United States. Therefore if your criminal record has been entered into the U.S. system for any reason you may still be refused entry into the U.S. based on that criminal record even though the record has been sealed in Canada.
To gain legal entry into the U.S. with a Canadian criminal record it is therefore advisable to apply for a U.S. Travel Waiver. An application is made to the Immigration and Naturalization Service (INS) and generally requires the full disclosure a person’s criminal history as well as the completion of an application package including fingerprinting.
Moral Turpitude, Controlled Substances and Repeat Offenders
It is important to note that not all crimes are considered sufficient to exclude a person from entry to the United States. For example, a drinking driving conviction will often bar entry into Canada but will not generally be considered of sufficient criminality to bar a person from entry into the United States. The general categories that are considered by U.S. agencies are crimes involving controlled substances, crimes committed by repeat offenders, and crimes of moral turpitude. The first two categories are fairly clear, however the third category begs the question of what amounts to ‘moral turpitude’.
A general definition of moral turpitude is ‘an act or behaviour that gravely violates the sentiment or accepted standard of the community’. Obviously crimes involving murder, rape, theft, assault, fraud, and prostitution will all qualify under this definition. However, as noted above drunk driving has generally not crossed the threshold into the realm of moral turpitude in the eyes of the U.S. authorities at this time. The key point is that this is a subjective assessment that changes over time and that Canadian community standards will not necessarily be the same as their U.S. counterparts.
In conclusion, the Canada/U.S. border is increasingly becoming more of a hurdle than a turnstile. Canadians with criminal records should spend some time investigating their options and the possible repercussions of ignoring the risks. For more details, Canadians should contact both the National Parole Board in Canada and the INS in the United States.
This article is legal commentary only and should not be taken as legal advice. Consult a lawyer in your area with any particular legal questions that you may have.
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