The Problem
Canadians without a criminal record are being denied entry to the United States of America.
In the past 6 months, I have had two people contact me because they were refused entry into the United States of America. Even though neither of them had a criminal record.
The first person was trying to enter by land. They were charged with some property offences, but all of the charges were a stay of proceedings (the charges were dropped) over 5 years ago. Although they were arrested and charged, the charges were dropped, so they did not have a criminal conviction or a criminal record at all.
The second person was trying to enter by air. They were charged with an offence and a breach of probation, but were sentenced to a conditional discharge. A discharge is not a criminal conviction or a criminal record, but is considered “a finding of guilt.” A person with a discharge can honestly say that they do not have a criminal record. After a period of time, the discharge will not even appear on a criminal record check. In this case, it had been long enough that the discharge would not appear on a criminal record check.
In both cases, US Border Officials wanted paperwork from the Court that confirmed the charges were dropped or a discharge was the sentence. Since neither of them ever had an issue before, they did not have any court paperwork with them and their travel plans were ruined.
I think it is important to understand that people trying to enter the US will either be considered admissible or inadmissible. There are several reasons why you would be inadmissible to enter the US due to criminal reasons (in other words, they can’t let you in even if they want to). These include:
Crimes involving "moral turpitude”
Violation of any controlled substance law
Multiple criminal convictions
Drug trafficking
Prostitution
Commercialized vice
Commission of a serious crime in the United States where a person has asserted immunity fro prosecution
Violation of religious freedom
Human trafficking
Money laundering
To read s. 212 of the Immigration and Nationality Act, that deals with inadmissibility based on criminal grounds, you can click here. If you want to review the full act, you can click here.
However, if your charges were dropped, you have no criminal record and you should be admissible.
Why is this happening now?
It may be that this has been the case for a long time. I do not have any statistics or proof about why this is an issue now. I am basing this article on a couple of anecdotes, which is far from evidence. But, it may be connected to the current administration in the USA and recent changes to their position on immigration and illegal immigration. Immigration and Customs Enforcement (ICE) has definitely ramped up in the USA recently. But this is speculation on my part, at best.
The Solution
If you do not have a criminal record, but have had some involvement with the criminal justice system in Canada, there are two clear solutions, in my opinion:
Avoid unnecessary travel to the USA. This could mean that you book a holiday in Canada or another country. It also means that you could avoid booking flights that have a connection through the USA, even if those flights may be less expensive.
Order and have a copy of your court paperwork with you when you are attempting to enter the USA. If you had previous charges related to drugs, even if they were dropped, I would also recommend connecting with an immigration lawyer like Carolina Fridman in Winnipeg before trying to enter the USA.
ORDERING COURT PAPERWORK
In Manitoba, you would first have to determine if your case was in the Provincial Court (which it probably was) or in the Court of King’s Bench.
An easy way to check, is that you can search your name on the Court of King’s Bench Registry (click here). If your name or your case does not appear, then it was very likely heard in the Provincial Court.
If you case was heard in the Provincial Court, then you will need to gather some information in order to complete the form to request your court documents. I would suggest calling the Provincial Court office at 204-945-3454. You can provide them with your name and birthdate and they can pull up any charges that are either pending or finished in court. You will want to find out:
The charges and/or Information number(s),
The date the charges were disposed of, and
The court location where the charges were disposed of
If your case was heard in the Court of King’s Bench, then you can gather this same information by calling 204-945-0344. But you may also be able to confirm some of this information from the Registry.
Next, you need to complete a form to request a copy of the court paperwork. The Provincial Court form can be found here and the Court of King’s Bench form can be found here. If you want to review the government’s website about requesting court documents, you can click here.
On the form, make sure you request “Information, Disposition & Fine Order”. That document will show when the charges were dropped. The reason for the copy can be “Other: Personal Records”. You can request a certified copy, which I think is a good idea, and then select to either pick up the documents, have them mailed, or emailed. I do not think they can email a certified copy, though.
If your case was finished more than 3 years ago, the file may be stored off site and it could take a few weeks to get it. Otherwise, it usually takes a week or so to pick up the copies.
You can then email a copy of your completed form to the court office. Depending on where your charges were dealt with will depend on which email address you should use. You can visit the MB Justice website here for a list of the different email addresses.
There is a small charge for the paperwork and it is usually under $20.
About the author
Michael Dyck is a partner at Rees Dyck Rogala Law Offices. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients.