The National Pardon Centre™

The pardon services industry slows down considerably in the summer which is good for vacation time but bad for business. It is understandable that fewer people have a pardon or waiver on their mind. When the sun is out and the weather is warm most of us are focusing on vacation and barbecues. We don’t want to be bothered with the hassle of getting an old criminal record removed. But summer is actually the best time to get started.

In summer time you can feel assured that the team at NPC is not overwhelmed with paperwork. You can come visit one of our offices and be assured that you will not have to wait to see a counsellor. When we send your fingerprints to the RCMP there is a good chance they will be returned faster than usual and even the court system is liable to send us court documents a little quicker than they would during the busy season.

And to top it all off there is an excellent chance that when summer is over your pardon will be done and you will be able to get back to work, school, whatever feeling confident because your criminal record and the mistakes you made in the past will have been left behind.

It’s easy to procrastinate in the summertime. But it only takes a little bit of effort to get your pardon underway. And come September you will be happy that you did.

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.

In my last article I explained the situation that would require a driver to process an I-192 USA entry waiver. The waiver is a document that allows people who have been deemed inadmissible by US border guards to enter the United States of America legally. The most popular reason for being banned from the States is a criminal record because a criminal record in Canada is accessible by American authorities. And once the Americans access your criminal record you are registered with the FBI for life which is something you absolutely do not want happening. Fortunately, there is a simple way around it.

The way around it is a bit of a legal loophole and I am not advising anyone to do this because, technically speaking, if you have ever been arrested and you enter the United States of America you are breaking the law. You are breaking American law on American soil and the consequences can be harsh. But for most people who were arrested once in their life for a minor transgression this just might be an acceptable solution. So I will explain how the system works and you, the reader, can make your own informed decision and decide what to do from an informed position.

Now, imagine for a moment that you have an active criminal record in Canada but for whatever reason you never tried crossing the border and/or no American border agent ever bothered looking up your name in the system. In this case you would have a criminal record in Canada but would not be registered with the FBI because the FBI never had any reason to search your name and register your criminal history in their database. This is the ideal situation for anyone with a criminal record. You are not exactly off the hook now, but you’re a lot closer than you might think.

In Canada we have a nice little program called Pardons and Clemency run by the National Parole Board, the same board responsible for letting criminals out of jail early. The program is written into the Criminal Records ACT and it is surprisingly fair and forward thinking. It allows anyone who has been convicted of a crime and completed the sentence imposed by the court to have the record sealed from active criminal records, hence a pardon. A sealed criminal record is not accessible by anyone without written permission from the Minister of Public Safety Canada and that permission does not come easily. The Minister would grant that permission if you were arrested again (he might even revoke your pardon) or he might grant that permission if you were under terrorist suspicions. But for the everyday average person like you or me the Minister is not opening up a sealed criminal record. And the Minister is certainly not opening a pardoned record on a whim.

Remember that a sealed criminal record is a sealed criminal record which is always a good thing in itself. But here is the best part. A pardoned criminal record is not accessible by American border guards….period! So, if you have a pardon and you’ve never been stopped at the border, you might consider taking Nancy Reagan’s advice and just say “no” when asked, “do you have a criminal record”? Because getting your name registered with the FBI is a headache that never goes away and it is a sure fire way to make sure you are not driving the long haul routes for a while. Let me be perfectly clear here: having your name registered in the FBI databases means you are inadmissible to the United States for life. You will always need a waiver to cross the border for as long as you live.

But keep in mind that this is a decision you have to make all on your own because American law says that Americans do not recognize pardons. American law does not even like pardons and it certainly does not believe that a Canadian pardon is a valid form of forgiveness as far as the United States of America is concerned. Plus, border guys like catching people at the border. It’s their job. And since it’s their job be aware because some of them will try to bluff you into disclosing your pardon. And once you’ve done that it doesn’t matter anymore because you will have to go through the same paperwork as a hardened criminal. The size of the infraction does not matter. It is simply the act of having committed one.

So if you are planning to cross the border in the near future and you think you might be ineligible play it on the safe side and speak with someone about the situation. But keep in mind some companies will sell you a waiver application service even if you might be able to work your way around one. There is no shortage of news articles and internet gossip contradicting the information I’ve just given here. But the truth is that I am right and this article contains accurate up to date information. So be sure you are comfortable with the company you are dealing with because registering your name with the FBI for no reason is a mistake no one wants to make.

The bottom line is this: If you have never been stopped at the border you should be able to skip the waiver application altogether. Because contrary to public perception, American border guards cannot access pardoned Canadian criminal records.