Pardons aren’t supposed to be visible at the U.S. border. Here’s why they often are

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Why a pardon can make crossing the border harder
WATCH: Why a pardon can make crossing the border harder – Jul 31, 2019

A pardon, or ‘record suspension,’ is supposed to let a former offender move on with a clean slate.

For people convicted of minor offences, the main problem with a criminal record is problems crossing the U.S. border.

That’s especially true for possession of marijuana, which isn’t a crime in Canada anymore, but can mean a lifetime ban on entering the U.S. if border guards know about it — pardon or no pardon.

About 400,000 Canadians have prohibition-era records for possession.

“The U.S. does not have access to pardoned criminal records,” Scott Bardsley, a spokesperson in public safety minister Ralph Goodale’s office, wrote in an email.

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“A record suspension removes a person’s criminal record from the Canadian Police Information Centre (CPIC) database. This means that a search of CPIC will not show that the individual has a criminal record or a record suspension.”

But immigration lawyers familiar with the issue say that isn’t entirely true: that Canadians who have gone to the effort to get pardons for cannabis offences are often questioned about them anyway by border officials and in some cases banned for life.

“I have seen people asked about things that were post-pardon,” says Bellingham, Wash. lawyer Scott Railton. “It happens all the time. In my 20 years of practice, I’ve seen this come up a number of times.”

Bardsley did not answer a question about whether Canada could omit cannabis possession records from data shared with the United States and still be complying with cross-border data-sharing agreements.

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‘Ghost entries’

In cases he’s familiar with, Railton says that U.S. officials seem to know about the original arrest, and base questioning on that.

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“Usually, what I’ve seen as a line of inquiry is that the officer doesn’t have complete information, but they have information about an arrest at some point or other, and they make further inquiries about that arrest. They develop that line of information.”

If the person is backed into admitting an arrest for marijuana possession, pardon or no pardon, that can mean a lifetime ban.

On the other hand, if the person doesn’t immediately remember a long-ago arrest, that can mean a ban for lying.

“That kind of thing happens. We’re talking about 30 or 35 years ago, and a lifetime of things happen, and people forget minor incidents.”

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Michael Arntfield, a former police officer who teaches criminology at the University of Western Ontario, says a CPIC entry will still exist after a pardon, though without the details of the offence.

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Someone who has never had contact with police won’t have any entry, so the existence of one is a giveaway, even if it has no information.

“They can see that something has happened,” he explains. “There will be some kind of ghost entry.”

“You don’t have a criminal record, but law enforcement officials, including border officials, can see that you have been arrested,” Arntfield says.

“A record suspension seals/sets apart a person’s criminal record within the CPIC database,” RCMP Cpl. Caroline Duval wrote in an e-mail. “Once the record is sealed this means that a search of CPIC will not show that the individual has a criminal record or a record suspension.”

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The problem is separate from another known issue, which is that if people try to cross the border before getting a pardon, the U.S. will have its own independent data about the conviction, even if a pardon is later granted.

Someone ruled inadmissible to the United States can apply for a waiver to enter, but the process is intrusive, expensive, time-consuming and has to be redone every few years until the person either decides to never cross the border again or dies.

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Pardon should end problems but starts them instead

Blaine, Wash. lawyer Len Saunders says he has had clients with long-ago possession convictions who had no problem crossing the border until they got a pardon, after which they found themselves ruled inadmissible for life.

“Quite often, I find that once someone gets a pardon that then triggers that inadmissibility,” he says.

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Arntfield explains that older offences may have only been documented in a paper file and never made their way into CPIC — until, perversely, the pardon process created an entry that wasn’t there to start with.

“I use the example of asbestos,” he says. “Asbestos does no damage until it’s disturbed and the particles get moved.”

“There are a number of dated convictions, probably on paper, that will predate the current operating system used and were dormant in a filing cabinet somewhere. As soon as that gets updated … it goes from invisible to visible because previously there would have been no entry.”

Saunders says the issue has been common knowledge on the U.S. side for a long time.

“They told me that years ago they would laugh and say ‘Someone gets a pardon, they think they’re so smart,’ that it hides the record. But it actually reveals it. All that a pardon does it that it seals your court records. It’s still on CPIC.”

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“Previously unrecorded convictions will not show up on CPIC due to a pardon being requested,” Duval wrote.

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A system for giving out free, quick pardons for prohibition-era marijuana possession convictions will be active “in the coming weeks,” Bardsley said.

However, the issue raises difficult questions about whether people with older convictions should apply.

“Canadian society, most of us, have come to see marijuana as something that is non-criminal,” says Toronto-based criminal lawyer Sean Robichaud. “It doesn’t have a criminal stigmatization, but in the United States it’s very different. The practical effects of the prejudice are going to come at the U.S. border, not here in Canada.”

Police data quality often poor

And another issue is the uneven quality of the data in CPIC. Observers describe a system that has been built over many years by police officers with varying attitudes to paperwork, levels of diligence and consistency. It can be so much of a mess on the back-end that nobody can say with certainty what someone with access including a U.S. border guard who can administer potentially life-changing penalties on the spot is or is not seeing.

For example, an offence could have been pardoned, but a reference to the pardon may still be visible in the data.

The border is the wrong place for CPIC, Robichaud argues.

“Any investigatory tool is going to have its shortcomings,” he says. “The problem is when it’s used for something more than a legitimate investigation, and used, for example, at the border to deem someone inadmissible.”

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WATCH: A U.S. official says that Canadians with previous pot-related charges may still be barred entry from the U.S. on a “case-by-case basis.”
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You can ask for record destruction. Here’s how (and why)

Is there a solution? Arntfield says it’s important to apply for records to be destroyed after a pardon, a step many people miss.

“People just don’t know that the second step is required.”

When he was a police officer, Arntfield says he knew someone who vanished from CPIC after his records were destroyed.

Simple possession charges were frequently settled with minor penalties: an absolute discharge, where the person has no consequences, or a conditional discharge, where the person has to meet certain conditions, like having to be of good behavior. People with absolute discharges can ask for records to be destroyed a year after conviction, and people with conditional discharges can ask for them to be destroyed after three years.

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Robichaud is doubtful.

“It is not a solution, because record destruction is not actual destruction,” he says. “There is no such thing as record destruction, quote-unquote. The information of the occurrence itself still exists.”

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What gets shared? ‘We’ve never got a clear answer’

U.S. officials won’t discuss anything about how they use Canadian data at the border.

“U.S. Customs and Border Protection is prohibited from discussing … investigative steps or databases used during the inspection process,” a spokesperson wrote in an email.

“There’s a tremendous amount of secrecy around what is and is not shared between Canadian authorities and the Department of Homeland Security,” Robichaud says. “We’ve tried on many occasions to find out what exactly they have access to. We’ve never got a clear answer.”

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However, officials on both sides of the border have increased their data-sharing in recent years. Agreements cover sharing travellers’ education, occupation, work history, marital status and many other pieces of information, including involvement with the criminal justice system.

“We’re either serious about saying that marijuana is not something that deserves criminal stigmatization, or we’re not,” Robichaud says. “And if we are serious about it, then we truly need to destroy, or completely seal this so that nobody has access to this information anymore, particularly the United States.”

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