Anthony De Marco
Toronto Criminal Lawyer

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A Criminal Record May Mean Travel Restrictions

A Criminal Record Can Result In Serious Travel Restrictions, Especially To The United States.

As most Canadians probably know by now, a Canadian citizen traveling to the United States is generally required to present a Canadian passport. U.S. Immigration “swipes” the passport using a device that will reveal the person’s criminal record. Generally speaking, the U.S. Immigration and Nationality Act provides that a person found guilty of a “crime involving moral turpitude” (CIMT) will not be admitted into the U.S.

A crime involving moral turpitude is defined as follows: “Conduct that is inherently base, vile, or depraved and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” CIMTs include offences such as fraud, theft, violent offences and drug offences.

Applying For A Waiver

A person with a conviction for a CIMT may be able to pay for and be issued a document by the U.S. Department of Homeland Security commonly known as a non-immigrant waiver. This document will allow the person to enter the U.S. The processing time for such a waiver may, however, be several months. Also, the waiver may not be permanent, meaning that the person must reapply for the waiver from time to time.

The Petty Offence Exception

Some offences may fall under what is known as the petty offence exception in which case the person seeking entry will not be barred from entering the U.S. In general, the petty offence exception may apply if the person seeking entry has only one conviction for an offence that is not related to drugs, the sentence imposed was not more than six months in jail, and the offence did not carry a maximum jail sentence of more than one year. Most offences under the Criminal Code of Canada, which are prosecuted summarily, carry a maximum jail sentence of six months (sexual offences that are prosecuted summarily carry a maximum jail sentence of 18 months). In general, a person with one conviction in Canada for a summary conviction offence will fall under the petty offence exception and therefore not require a waiver.

Sentences Totalling Five Years Or More

A person convicted of more than one crime can be barred from entry into the U.S., even if none of the crimes was a CIMT, if the person was sentenced to a total of five years in jail or more. Accordingly, although a drinking and driving offence is not considered to be a CIMT, a person convicted of multiple drinking and driving offences can be barred from entry into the U.S. if the jail sentences on the person’s criminal record total 5 years or more.

Young Persons With Criminal Records

Special considerations apply for persons convicted of a crime committed while under the age of 18, which will usually result in the person not being barred from entry into the U.S. (a crime committed while under the age of 18 is generally treated as an act of juvenile delinquency instead of a crime in the U.S.).

Other Useful Information

An absolute discharge in Canada is not considered to be a conviction for purposes of U.S. immigration law.

A conditional discharge (a discharge with a term of probation) is, however, considered to be a conviction for purposes of U.S. immigration law.

A person who has had a criminal charge withdrawn following the completion of a diversion program should not have a problem in entering the U.S.

A Canadian pardon is not recognized under U.S. immigration law.

Travelling To Other Destinations

Persons with criminal records intending to travel to a foreign country other than the United States, whether or not a travel visa is required, should, as part of their travel plans, make sure that the country to which they intend to travel will not bar their entry.