The National Pardon Centre™

It never ceases to amaze me how Canadians crossing the border continue believing that honesty is the best policy when questioned by border guards about drugs or a criminal past. Particularly in the former case honesty is the kiss of death. I can guarantee you that if you have ever had anything…whatsoever…at all, at all, at all… to do with any kind of recreational drug, admitting it to a US border guard will land you in serious trouble. At best you are providing yourself with a perpetual headache for the rest of your life as far as the border is concerned.

Of course this is all a testament to the fact that we Canadians are a nice lot indeed. We like to be honest. We like to be good. We like to hold the door open for little old ladies who say thank you and smile.

But please if you are traveling to the States and you have a criminal record take care of it before you go. And if you have ever…god forbid…smoked a joint on a fun summer night when the rules didn’t seem to matter so much just don’t tell the guy at the border if he asks you about it.

Take it from me and take Nancy Reagan’s advice. If they ask you, just say no!

Since this blog is all about Canadian pardons and US entry waivers sooner or later I was going to have to address fingerprinting. When I tell people I need their fingerprints often I am told to go and retrieve the ones that are on file with the police. This seems somewhat reasonable as I deal with people who have been arrested and, therefore, had their fingerprints taken. But for a pardon or waiver application, or for a simple background check, what are needed are non-criminal fingerprints.

We use non-criminal fingerprints to compare against the criminal fingerprints on file with the RCMP when retrieving a criminal record from Ottawa. If we did not retrieve a criminal record with fingerprints we would run into trouble.

Imagine if the National Pardon Centre were processing a pardon for say, John Smith. In the case of John Smith if we were using only his name to retrieve his information in CPIC there is a pretty good chance we would come up with a criminal record, whether or not it happened to be the correct John Smith or the correct criminal record.

On the other hand when we retrieve a criminal record using fingerprints, we eliminate the name confusion, because even though there are many John Smiths in Canada, each John Smith definitely has his own fingerprint pattern. So for that reason (and because the government agencies want it to be done this way) we must obtain a fresh, new set of non-criminal fingerprints. Without non-criminal fingerprints you simply cannot process a pardon or waiver application.

It is the first step in each application and company you are dealing with should be certified to take fingerprints.

The systems in place for processing pardons in Canada can get extremely complicated when you started dealing with different court outcomes. For example, if you have ever gone to court but were found not-guilty then logic would suggest you do not have a criminal record and do not require a pardon. Unfortunately, this is not the case.

When you are found not guilty it is true that you do not require a pardon. But there is definitely a record of criminal activity that you will want to take care of because you cannot count on the system to do it for you. The fact is that when you were arrested the police took your fingerprints. And when you went to court the clerks, prosecutors, judge, etc. all generated documents with your name on them. And finally your name will also appear on the restricted distribution section of CPIC. All of these cases are examples of a criminal record but none will be taken care of by a pardon application because you can only apply for a pardon if you were guilty.

The logic of this system appears to be out of whack because if you were found guilty you can have your criminal record removed. But if you were dragged through the court system for no good reason you cannot.

Fortunately it only appears that the system works this way. Because if you were found not guilty in court you can apply for what is called a purge and file destruction and, if done correctly, it will essentially destroy all traces of the arrest(s) in question. It is simply a different set of paperwork for dealing with a criminal record. Instead of dealing with the National Parole Board we deal directly with the various courts and police stations involved in the arrest, all of which have their own specific rules and policies governing the retention / destruction of these documents.

If you were found not guilty in court please do not assume that you do not have a criminal record because you do. It may not be your standard, everyday, run-of-the-mill criminal record but it is a criminal record nonetheless and it can mess up your life in all the same ways that a guilty verdict criminal record can.

It might not be fair that you have to apply to get rid of a not guilty verdict but in comparison to some of the legal systems around the world Canada’s is surprisingly humane and just.

Not guilty is not guilty but let’s face it; people will still raise an eyebrow if they see you were arrested at all. So take advantage of the fact that in Canada you can have the records destroyed and get yourself a purge and file destruction. It is definitely worth the effort.

In my last two articles I discussed the situation at the US border for those people living in Canada with a criminal record. I explained the rules on pardons, US waivers and the different ways you can get into the United States of America if you have ever been charged with a crime. But since there are thousands upon thousands of border crossings each day there was undoubtedly going to be experiences that did not match up to the information I provided.

So just a quick recap on the issues:

* Canadian pardons are not recognized by US authorities
* Pardoned criminal records are not accessible by US authorities
* Criminal records viewed by US authorities prior to the granting of a pardon are kept in US files forever
* A pardon may suffice for entry to the United States but it is a legal loophole: technically you are breaking American law by keeping your pardoned criminal record a secret
* The only way to be 100% sure you are able to enter the US legally if you have a criminal record is to obtain a US entry waiver (and even then you may get hassled)

Phew! So with all that it may seem difficult to know what your situation is and how to deal with it. The fact is that many people I speak to, for various reasons, are not even aware that a criminal record exists for them. So when they get to the border they don’t know what to do or how to deal with it. Add a difficult border guard to that situation and the experience can be downright traumatizing. Add to that the fact that no public system is 100% foolproof and you have a situation in which the advice and explanations I offered may not add up. Within days of publication I had received a few emails from frustrated/angry people who did not have a nice experience at the border and for who the legal loophole of the Canadian pardon system did not work out. For all those people I would like to say I am very sorry this happened to you. The border can be a tricky place to navigate but I do not make the rules, I just explain them.

Compound the Kafkaesque nightmare that is the American/Canadian border with the whole FAST application system and things get even more complicated. Now, I am not an expert on the FAST program and my company does not handle those applications. But after receiving some emails from people who had run into trouble with their FAST application I decided to do some research and see what may be happening to people with a criminal record who apply for a FAST card.

Here is what I found out:

Eligibility

You may qualify to participate in the program if you are a citizen or permanent resident of Canada or the United States and you reside in Canada or the United States. You must also be 18 years old or over and possess a valid driver’s licence. You must be admissible to Canada and the United States under applicable immigration laws.

You may not qualify if the following applies:

1. You provide false or incomplete information on your application;
2. You have been convicted of a criminal offence in any country for which you have not received a pardon;
3. You have been found in violation of customs or immigration law; or
4. You fail to meet requirements of the FAST Commercial Driver Program

Both Canada and the United States must approve your application. If you do not meet the requirements of both countries, your application will be denied.

Source: http://www.cbsa-asfc.gc.ca/prog/fast-expres/driv-chauff-eng.html

Above is the criteria for Canadian drivers applying for the FAST card. I am not even going to try to research the application for American drivers. But let’s look at the points.

Point 1. If you provide false information on your FAST application you fail. So if you have blue eyes and you say they are brown no FAST card for you.

Point 2. This one is a little more confusing because Americans do not recognize pardons so I would think point 2 should just read as follows: “if you have ever been arrested then no FAST card for you”. But understanding government double-speak is an art, not a science. I think the Canadian government put in the bit about a pardon because the Canadian criminal code insists that they do.

Point 3. Break the law again and no FAST card for you. Well, this is just a rehashing of point 2 but fair enough. It should say respect the law and you might be granted a FAST card. Continue to respect the law and your FAST card will remain valid.

Point 4. For some reason government agencies like to use too many words especially when writing government documents. Therefore, in government speak, point 4 is pointless because if you do not meet the requirement of point 4 it means you did not meet the requirement of 1, 2 and 3. And if you don’t meet the requirements of either point 1,2,3 or 4 then no FAST card for you.

In relation to the whole criminal record thing it is point number 2 that concerns us because when you apply for a FAST card they are going to fingerprint you and submit the prints to the RCMP. This is the same thing that happens when you submit a USA waiver application. Only when you submit fingerprints to the RCMP for a waiver the RCMP will not disclose a pardoned conviction. It is a part of our law that pardoned information does not get disclosed in this case.

But, when you submit fingerprints for a FAST application to the RCMP they are submitted under the Privacy Act, which means that you are giving permission for your pardoned criminal record to be disclosed. So if you lie to the Americans about a previous criminal record because you received a pardon, the Americans will know right away. And that means that you failed point 1. And that also means no FAST card for you.

So, if you are applying for a FAST card please keep in mind that it is much different than applying for a USA entry waiver or simply crossing the border to take the family to Disneyland. A FAST application is a different process and they do not want you lying to them for any reason. And what’s important to remember here is that, in relation to a pardoned criminal record, the Americans will very easily be able to tell that you have lied. And once you lie, your FAST application is over.

If you are a driver and you want to cross the border regularly and you have a pardon for a past criminal conviction you have two choices. One, you can choose to apply for a FAST card and you can be upfront and honest about. You have to be honest because they are going to find out anyway. Or two, you could just skip the FAST card altogether and cross the border like the rest of us. It might take a little extra time but at least you would not be discolsing your pardon and previous criminal conviction to the American authorities.

In a case like this you, the driver, must ultimately decide what is best for you.