If you are planning to travel to Canada in the near future and your criminal record is less than flawless, you should be prepared to answer questions at the border. In the aftermath of 9/11, Canadian border officials have become stringent about whom they let cross the border. Before 9/11, individuals entering Canada from the United States only needed to show either a U.S. Passport or other proof of U.S. citizenship. Now people crossing the border are subject to criminal background checks.
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If you have a trial under way, or there is a warrant for your arrest, or you have charges pending against you, you are considered criminally inadmissible. If you have been convicted of minor offenses (including assault, dangerous driving, DUI, theft, shoplifting, unauthorized possession of firearms, possession of illegal substances, etc.) or indictable criminal offenses (including assault with a deadly weapon, manslaughter, etc.) you are prohibited from entering. Further action is required to find out whether you will be allowed entrance.
The process for determining your admissibility is long and cumbersome, so leave yourself plenty of time prior to traveling. Below is a short outline that will help you take the steps needed to gain entrance.
The first thing you should do is clear your criminal record to the fullest extent possible before submitting to a background check. The Canadian government has entered into and information sharing agreement with the United States; so the Canadian government will have whatever information the United States has. The options for clearing your record vary greatly by state. Almost all states allow you to seal the record of arrests that did not lead to a conviction. Many states also allow you to seal, vacate, set-aside or expunge the record of misdemeanor and felony criminal convictions. The benefit of this will range from keeping Canadian officials from knowing anything at all about the criminal incident, to showing that the matter was resolved and no longer considered a conviction— either way, record clearing will improve the odds of not being denied entry to Canada or being stuck at the border for lengthy interrogation.
If you have (1) a total of one misdemeanor conviction; (2) at least five or as many as ten years have elapsed since you completed the sentences for the conviction; and (3) the conviction would not be considered a serious crime in Canada, then you are eligible to apply for “deemed rehabilitation.” In evaluating each case, Canada officials use Canadian definitions of what constitutes a misdemeanor or a serious offense. In Canada, serious offenses include theft, assault, manslaughter, dangerous driving and driving while under the influence of drugs or alcohol. For a complete list of criminal offenses in Canada, consult the Canadian Criminal Code at http://laws.justice.gc.ca/en/C-46/. Most felony convictions in the United States are equivalent to serious criminality in Canada.
Deemed rehabilitation is determined at Canadian ports of entry. You are not required to submit an application to be deemed rehabilitated and further, there is no fee for deemed rehabilitation. Should you choose to apply, you must bring with you: (1) your United States passport or birth certificate, (2) a copy of the court documents for each conviction, and proof that all sentences were completed, (3) a recent FBI identification record, (4) recent police certificates from the state where the conviction(s) occurred, and from any state where a person has lived for six months or longer in the last 10 years. You will be deemed rehabilitated automatically if at least ten years have passed since you completed the sentence imposed upon you.
Be aware that requesting rehabilitation does not guarantee that the request will be approved. Thus, prior to arriving at the port of entry, you are strongly advised to contact a Canadian visa office to see if you qualify. The following is a link to a list of Canadian visa offices: http://www.cic.gc.ca/english/information/offices/missions.asp.
If more than 5 years have elapsed since all sentences related to the conviction(s) were completed, but you are not eligible for rehabilitation at a port of entry because of the nature or number of convictions, you may apply for rehabilitation through a Canadian Consulate in the United States. Five Canadian Consulates in the U.S. process criminal applications: Buffalo, New York, Detroit, Los Angeles, and Seattle.
If you have (1) a total of two or less misdemeanor convictions; (2) at least five years or as many as ten years have elapsed since you completed the sentences for the convictions; and (3) the convictions were not considered serious criminal offenses in Canada, then you are eligible to apply for “individual rehabilitation.” Contrary to “deemed rehabilitation,” this process should be completed prior to traveling. Be advised that an application for rehabilitation may take as long as one year to process.
Individual rehabilitation is process by which you prove to the Canadian authorities that despite your past convictions, you are unlikely to be involved in further criminal activity and lead a stable life. Requests for criminal rehabilitation can be made by completing an “Application for Criminal Rehabilitation” form. The application fee may range from $200.00 to $1000.00 (Canadian) depending on the degree and seriousness of the criminal conviction(s). The fee is non-refundable, regardless of the outcome of the application. You will also need to provide: (1) pages from your passport showing your name, date of birth, and county of birth (or if you are a U.S. Citizen, a copy of your driver's license and a birth certificate); (2) each court judgment made against you; and (3) any additional documents relating to the imposed sentence, parole, probation or pardon.
You may elect someone to represent you the rehabilitation process. A representative is someone who has your permission to conduct business on your behalf with Citizenship and Immigration Canada (CIC) and the Canada Border Services Agency (CBSA). You may have one representative only. If you chose to have someone represent you, you will be required to complete an additional application. This application is found under “Use of a Representative” at the following link: http://www.cic.gc.ca/english/information/applications/rehabil.asp.
If you chose not to complete the application prior to arriving at the port of entry (airport, marine, or land), be advised that an Officer has absolute discretion to deny entrance and ask you to return immediately to your country of departure.
By Olga Sattarova
Olga Sattarova holds a juris doctor from the University of Utah's S.J. Quinney College of Law. Mathew Higbee, Esq. also contributed to this article.