Over The Road #2

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.