Pardons and waivers

A criminal conviction remains on your record for life. A criminal record can have far-reaching consequences including on your ability to travel to the United States. It can also affect your ability to find employment, find housing and adopt a child. If you have a criminal record, pardons and waivers offer both short-term and long-term solutions to these problems.

Travelling to the United States with a criminal record

When a person is convicted of a crime, a record of the offence is created and kept in a national database, the Canadian Policing Information Centre (CPIC). The CPIC makes the database available to the RCMP as well as law enforcement organisations around the world, including Customs and Border Protection and Department of Homeland Security in the United States.

American border officials routinely conduct background checks of visitors from Canada and if you have a criminal record, they are entitled to turn you away or even ban you from entering for life. If you are held up at the US border and you have a criminal record, pardons and waivers are two ways to drastically improve your chances of entering the country.

Other effects of a criminal record

Private citizens in Canada can also access CPIC’s database, for a fee. This means landlords and employers can perform background checks on prospective tenants or employees if they so wish. If you do anything that requires a background check, a criminal record can seriously hamper you.

A criminal record can also adversely affect people who want to adopt a child, gain citizenship or those who are going through child custody proceedings. Obtaining a pardon is a way to prevent convictions from appearing in background checks so you can get on with your life.

Pardons

A pardon, otherwise known as a record suspension, allows people with a criminal conviction to have their criminal record kept separate and apart from other active criminal records. If a person obtains a pardon for a particular conviction, it is not erased from their record, however, the offence will not appear in any CPIC searches. Nor will it show that the person was issued a pardon.

In order to secure a pardon, a person must have completed their sentence and demonstrate they are law-abiding citizens. A person who has committed a summary offence may apply for a pardon five years after completing their sentence. The waiting period for people convicted of indictable offences is 10 years.

Who issues pardons?

The Canadian federal government has the authority to issue pardons. Specifically, the Parole Board of Canada is the federal agency that has exclusive jurisdiction to grant, refuse to grant or to revoke a pardon. The law that governs pardons is known as the Criminal Records Act.

Am I eligible for a pardon?

Any person convicted of an offence under a federal act or regulation of Canada. You do not have to be a citizen or a resident of Canada to apply for a pardon. A person who has a conviction from another may also apply if the conviction was transferred to Canada under the Transfer of Offenders Act.

There are some exceptions that are ineligible for pardons. Sexual offences against a minor will appear on a person’s record for life. An individual who has four or more indictable convictions, each carrying a prison sentence of two or more years, are also ineligible for pardons.

Waiting period

Depending on the charge, a person will have to wait a certain amount of time before they are eligible to apply for a pardon.

• 5 months: withdrawn, dismissed, or acquitted charges
• 1 year: Absolute discharges, stayed charges and most peace bonds
• 3 years: Conditional Discharges
• 5 years: Summary Convictions
• 10 years: Indictable Convictions

Waivers

Another way to legally enter to the United States with a criminal record is to obtain a US entry waiver. A wavier is essentially a document that admits and gives details about a person’s criminal record to the U.S. federal government. An individual is required to submit fingerprints for certification to both the RCMP and the FBI.

Additional documentation beyond the basic application must be submitted including endorsements and certifications. The US entry waiver is granted by the Department of Homeland Security in the United States. The decision-making process is subjective, meaning the better the application package, the more likely the waiver is to be granted.

Waivers are valid for a certain amount of time and a person must re-apply if they still wish to travel to the US after it expires.

Pardons vs. waivers

Pardons offer a long-term solution for people with old convictions who want to travel to the States, whereas waivers are more temporary. However, if you are denied entry to the United States and subsequently obtain a pardon for that offence, you might still be denied access. This is due to the fact the American border authorities would have already located the offence on the CPIC database and kept a record of the conviction in its own files.

Consequently, waivers may be the only solution available to people who have tried to enter the US but were denied due to their criminal record.

Obtaining a pardon

After waiting the appropriate time period, a person seeking a pardon must get a Convictions, Conditional and Absolute Discharges form (Criminal Record) from the RCMP in Ottawa and, if required, Proof of Conviction documents. For each conviction, the applicant must include proof and date of last payment for any fines, victim surcharges, restitution, and compensation. This court information must also include the method of trial for each conviction which will either be summary or indictable.

Then, they have to get their Court Information and Local Police Records Check(s) for all locations in which they have lived for the past five years. The applicant will have to show their criminal record check to each local police service and ask them to fill in the section on the Local Police Records Check Form.

If they were born outside of Canada, they must have Proof of Citizenship or immigration documents. Next, they need to fill out a Schedule 1 Exception Form, if applicable. They must complete a Record Suspension Application Form accurately to in order to gain final approval. Then they must complete the Measurable Benefit/ Sustained Rehabilitation Form in order to gain final approval.

It takes an average of 12-24 months for an application to be processed and granted.

If an individual is a current or past member of the Canadian Forces, they must get a certified, signed and dated copy of the Military Conduct Sheet.  If an individual has been convicted of a Schedule 1 offence, they must complete the Exception Form.

Don’t risk losing your freedom to enter the US

There is a lot at stake when you travel across the border to the States. If you have a criminal record, you can take your chances that you will not get checked at the border. But know beforehand that if you do get selected for further checks, you could be turned away or even banned from entering the country forever.

If you have relatives living there or you need to travel south of the border for work, you do not want to take any risks. Pardons are a way to prevent a conviction from your past from appearing on your criminal record. If you have already been turned away because of an old criminal offence or you need a short-term solution to US travel, waivers might be the option for you.

If you want to give yourself the best chance of being approved for pardons and waivers, then you should get help from a professional. The lawyers at Acumen Law Corporation have experience helping people with mistakes in their past get their life back on track. Call us for a free consultation on 604-685-8889.