In the course of a days work I speak to a lot of people about their criminal record. Usually the criminal record is old and for something small, with Impaired Driving being the leading criminal record I discuss with my clients. Following closely behind DUI is theft, simple assault and possession.

For many of the people I talk to they believe that because it was a minor offence the record is automatically wiped clean after a certain period of time. But rarely do they have any clear idea of why they believe that or how much time is actually enough for the record to be automatically cleared.

The truth is that a criminal record never goes away until you make the application to have it removed. But like everything else in life there are some exceptions.

One of those exceptions is made for young offenders. If you were charged and convicted under the Young Offenders Act then once you turn 23 the record should be cleared automatically. However, this is not an absolute. Some records could go away a little earlier and some might take a little longer. And the other thing a young offender should keep in mind is that if he/she is arrested again as an adult that old young offender charge becomes a permanent part of the criminal dossier. And once that happens, a pardon will be required to remove it from public record.

Short of working in the criminal justice system it is very hard to know how criminal records are managed because there are so many different criteria to deal with. So if you have ever been arrested the best thing to do is talk to a professional and make sure things are done properly. Otherwise you are taking chances with your future.

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.

One of the things I have been trying to emphasize with this blog is the number of people/companies in the past year or two who want to get into the Pardon and Waiver business for the wrong reasons. There have been so many new games in town that you need to remember these people may not have the slightest clue what they are doing. And there is a good chance they are only in it for the quick buck.

So when I stumbled upon this little blog entry I thought a re-post was in order. Have a quick read and if you are in the market for a pardon or waiver service be careful who you choose because you just might end up with your neighbours nanny preparing your paperwork just to earn a couple of extra bucks.

Solve all your problems at Finch and Dufferin

Posted: February 27, 2008, 11:31 AM by Peter Kuitenbrouwer
Kuitenbrouwer

I was waiting awhile for a 36 Finch West earlier this morning, on the windswept corner of Dufferin Street, and reading the flyers pasted to the bus shelter. It seems there is one company in North York, called, mysteriously, ABM, which can resolve a lot of your outstanding issues.

“Quick Divorce from $300!” trumpeted one of the colour flyers, suggesting that you call ABM Legal Services. The next flyer asked, “Criminal Record? Pardon/ U.S. Waiver from $399. ABM Pardon Services.” A third flyer promoted the Quick Road Test from ABM Driving School. And, of course, “Do you need child care? ABM Care.”

Now maybe it’s just me, but I’m not sure if I want to hire the same ABM guys who’ve given me a quick divorce, quick road test and a quick scrub of my criminal past, to look after my children. On the other hand, it has the appeal of convenience.

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.

Over The Road is a series of three articles written for the national trucking publication by the same name. The articles cover the issues surrounding criminal records and the United States border as they relate to Canadians who work in the trucking industry.

The other day I was talking to a nice guy about his criminal record. He was a trucker. He had been a trucker for years. He had crossed the border regularly since starting his career back in ‘82. He was an upstanding man. He was a family man. He owned a home. He owned his rig. He loved his children. He was an all around solid guy and he was actually a pleasure to talk to on the phone (I get a few of the other sort in my line of work). He also happened to have a criminal record and the week prior to our conversation he had been stopped at the US border. It was the same US border he’d been crossing for decades. Only this time they wouldn’t let him, or his truck full of goods, into the country.

“So what the heck happened” he asked me?

The thing I realized is that this guy had no idea his criminal record even existed. He just thought it was so old it must have evaporated or disappeared all on its own. He also didn’t realize that crossing the border is illegal if you have ever been arrested, which presents a particular problem to those of you whose livelihood depends on it. As far as trucking is concerned, for the long routes south in particular, a criminal record is the kiss of death. It will end a trip faster than 18 flats at once and it is actually a fairly easy problem to take care of.

If you are in a situation like this it means a few things. It means you have an active criminal record you never dealt with. It means the American border guards are aware of your criminal record. And it means you have been deemed “inadmissible” by the Department of Homeland Security or DHS. It also means you have only one option. You need an I-192 USA entry waiver and you will need one for the rest of your life so long as you want to cross into the United States of America.

As I explained to my trucker friend on line 1, an I-192 is an application made to the very department that doesn’t want you in the States. It is a long list of bureaucratic government paperwork and it takes a long time to complete. Expect the application to take anywhere from 10 – 18 months start to finish. And no, you cannot enter the United States while it is in process.

The successful completion of your application will grant you permission to cross the border for a period of 1, 2 or 5 years. It depends on a few things. It depends largely on the extent of the criminal record, the severity of the crimes committed and the length of time that has passed since you were last arrested. So, if you were just caught smuggling many kilos of contraband into Canada in the last few months there is a very good chance the Americans will refuse your application. If you haven’t been arrested since you were a kid pulling pranks there is about zero chance your application will not be granted. And it is likely to be granted for a period of 5 year, provided the paperwork is done properly of course.

You want to make sure that your application is done as well as possible because they cost in the area of $1000 - $1500 and the fee is applicable for each time you renew. I do suggest using a pardon and waiver service because they will know what needs to be done to ensure your best chance at a 5 year waiver.

I also suggest being extremely careful when choosing your service. In the past year I have seen the industry explode with about 9 new companies opening their doors all with next to zero experience and no guarantee they will be around long enough to finish your application. They all offer impossible discounts and care a lot more about securing your application fee than determining what your actual chances are of obtaining a waiver.

I signed up my trucker friend on the phone and began processing his waiver the same day. He is now a lot closer to getting back on his old long haul route but it is going to take some time to push through the bureaucracy and secure the waiver. So if you are in the same situation stop procrastinating and get things under way because a driver inadmissible at the border is not a very valuable driver. And even though it might seem expensive clearing your name is one thing I can assure you is worth the money.

I want to point out that all of the above applies if the Americans are aware of your criminal record. It would also apply if you have ever been deported from the United States. It would apply if you have ever been arrested in the United States. And it would also apply if you have ever been refused entry at the border for any reason at all, regardless of whether or not you have a criminal record. I have few dozen clients who have done no more than admit to smoking marijuana once in their life. Once you do that there is no discussion. You are not entering the United States of America.

And finally, if you have a criminal record but none of the conditions in the above paragraph apply to you there is another option for gaining entry to the States. It is a better, cheaper, faster and more affordable option. It is also permanent. So stay tuned to Over the Road and in my next article I will explain what to do with a criminal record that the Americans know nothing about.

A lot of people ask me what is the real value of a pardon? Because a pardon does not completely erase your criminal record (a pardon seals the record completely) sometimes people feel that it isn’t entirely necessary. But that isn’t the case. Have a look at the article below because a pardon even outranks a police force. And in my opinion that is a pretty strong rank and a good reason people should always get a pardon if they have a criminal conviction on their record.

By Pierre Saint-Arnaud, THE CANADIAN PRESS

MONTREAL — Montreal police violated a woman’s rights by rejecting her job application because of a prior shoplifting conviction, the Supreme Court of Canada ruled Friday.
The woman, whose name has been withheld from court documents, pleaded guilty to theft in 1990 and was officially pardoned five years later. When she applied to be a police officer in 1995, the department ran a background check and discovered the conviction.
The woman was told her application was rejected because she didn’t have the “good moral character” to meet hiring standards.
But the country’s highest court said the rejection infringed on the Charter of Rights and Freedoms.
Writing for the majority, Justice Marie Deschamps wrote that a person who has obtained a pardon is protected by the charter when applying for employment as a police officer.
She said the police department only based its rejection on the woman’s shoplifting conviction.
The court said while it’s true a police officer must demonstrate “exemplary behaviour,” the department could not use this one mistake against her.
Marc-Andre Dowd, vice-president of the Quebec Human Rights Commission, which originally championed the file, was satisfied with Friday’s ruling.
“The importance of this judgment is that it reinforced the value of a pardon,” Dowd said in an interview.

“It establishes a presumption that a person’s rehabilitation restores their moral integrity.”
The woman’s case was heard by the Quebec Human Rights Tribunal in 2002, which ruled in her favour.
Although the woman had since given up her attempt to join the force, the police department was ordered to pay $5,000 in moral damages.
The Quebec Court of Appeal upheld the tribunal’s decision in 2006.
The woman was 21 when she was arrested in August 1990 for stealing about $200 worth of clothes and accessories from a department store.
In May 1991, she pleaded guilty to theft and received a conditional discharge.
She did not tell police of her conviction because she believed, based on what she read in a letter from the RCMP, that the pardon had erased her criminal record.
The police department’s application form also never asked about pardoned offences.
After discovering she had pleaded guilty to theft, Montreal police reviewed reports and statements from the time of her arrest.
The police department would not grant interviews Friday, stating it was still reviewing the Supreme Court judgment.
“It establishes a presumption that a person’s rehabilitation restores their moral integrity.”
The woman’s case was heard by the Quebec Human Rights Tribunal in 2002, which ruled in her favour.
Although the woman had since given up her attempt to join the force, the police department was ordered to pay $5,000 in moral damages.
The Quebec Court of Appeal upheld the tribunal’s decision in 2006.
The woman was 21 when she was arrested in August 1990 for stealing about $200 worth of clothes and accessories from a department store.
In May 1991, she pleaded guilty to theft and received a conditional discharge.
She did not tell police of her conviction because she believed, based on what she read in a letter from the RCMP, that the pardon had erased her criminal record.
The police department’s application form also never asked about pardoned offences.
After discovering she had pleaded guilty to theft, Montreal police reviewed reports and statements from the time of her arrest.
The police department would not grant interviews Friday, stating it was still reviewing the Supreme Court judgment.

Recently I read an article in The Globe and Mail titled Pot: Why not legalize it? by Margaret Wente, July 24 2008. It concerns the state of marijuana law in Canada and why the law should be left just as it is, despite the fact that a majority of Canadians do not support it. Her closing line, after loosely running through the argument for both sides of this endless debate, is that the law is pretty much as it should be anyway, because police do not routinely enforce the law for simple marijuana possession…ie. the status quo is A O.K.

And this is actually true for the most part. Canadian police do not actively look to arrest people for simple possession of Cannabis; at least not everywhere in the country and not all the time. But that is exactly the problem. Even though police do not usually enforce possession laws they still can and they still do. The problem is that keeping outdated laws on the books gives police a power over the people that they shouldn’t have. Because once the police can arrest you for something that is not considered a crime society is taking one small step on a slippery slope towards a police state. And that is a scary thing.

Paranoid? Perhaps. But it comes with the territory because everyday I go to work I see a criminal record with a simple possession on it. I hear a story about an arrest for simple possession. I hear about people losing their jobs or being denied citizenship or being banned from crossing the border all because of a charge for simple possession. It’s time for us all to grow up on this issue because marijuana is a health matter, not a criminal one. And outdated laws are outdated laws, not good ones.