He never had trouble at the U.S. border — until he got a pardon. Here’s what seems to be happening

Click to play video: 'Think twice about asking for a pardon, border lawyer says'
Think twice about asking for a pardon, border lawyer says
WATCH ABOVE: Here's why getting a pardon for a minor crime can make crossing the U.S. border harder, not easier. – Jan 21, 2020

An Ontario man had some brushes with the law in his past — a mischief conviction from 1994 and another from 2001 that he describes as “a bad situation induced by booze.”

Still, it never made all that much difference in his life, he says: not at the time, when both cases ended in a conditional discharge, and not when he crossed the U.S. border, which he says he did often. (Mischief isn’t an offence that will get a Canadian barred from the U.S.)

The problems only started when he was given pardons for his old convictions.

“It was something that my wife was encouraging me to do for years,” he says. “She was a teacher and is just very orderly that way.

“I wanted to get the pardon because people feel cleansed. It’s like going to church and confession. You feel so good afterwards. Part of it is that — just really absolving yourself of that weight.”

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After the pardon, though, he found himself caught in a catch-22 at the border. Before, U.S. border guards could see that his record was for something they didn’t care about. After, all that they could see was that he had a pardon — but no way of knowing what it was for.

The man didn’t want to be identified due to concerns about his prior convictions affecting his citizenship application in an EU country.

Click to play video: 'Past marijuana conviction could still prevent U.S. border crossing'
Past marijuana conviction could still prevent U.S. border crossing

Though most pardons are for minor crimes, Canadians can be given pardons, or record suspensions, for many serious crimes — in the most recent year for which we have data, pardons were granted for manslaughter, kidnapping, attempted murder, hostage-taking and arson with disregard for human life, among other things.

“I’m not surprised that this gentleman is having problems at the border after receiving a pardon,” says Len Saunders, an immigration lawyer in Blaine, Wash. “What the Americans can see through the Canadian criminal databases is that this gentleman received a pardon. But unfortunately, they can’t see for what.”

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After he started having problems crossing the border, the man launched a series of complaints with the national parole board and the RCMP.

Last October, a senior RCMP officer offered an explanation in a letter seen by Global News.

When a Canadian is pardoned, he wrote, the RCMP finds out whether U.S. border officials have looked up the person’s criminal file. If they have, the RCMP sends them a notification of the pardon, without saying what the original crime was, and asks them to destroy any records of their own they might have created over the years.

If that’s complied with literally, though, all the U.S. now knows is that the person has some kind of criminal past. And for minor offenders, that doesn’t necessarily make life easier.

“My experience is that if the Americans see a pardon, they will not let you in,” Saunders says. “They put the burden on you to get your records and bring them to the border to see whether you’re admissible or not.”

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Canadian lawyer questions government advice to be honest at U.S. border

The man says he has visited Niagara-area border crossings several times with documents he hopes will show what his crimes actually were. U.S. border guards have so far rejected them, though he hasn’t so far been formally barred from crossing the border.

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“Each of these visits, when I drove, were an hour to two hours of sitting there,” he says.

He says he doesn’t blame the U.S. for rejecting the documents because they would be easy enough to forge or alter.

“It’s just a basic piece of paper showing that this has gone off your record and that that’s so freeing and all this garbage. That’s all you get. When it’s completed, you get a form stating what the charges were and that they’re now suspended.”

In the meantime, his criminal record is giving him much more trouble now than it did before it was suspended, and he is now reconsidering plans to retire to the U.S.

“It’s a bit of a limbo,” he says. “They haven’t said, ‘You’re an individual who is not welcome in the United States.’

Saunders agrees.

“My assumption has always been that if (a criminal record) has not created an issue at the U.S. border, I wouldn’t do anything. I have seen individuals who have criminal convictions from 40 years ago, and they cross back and forth and these issues never come up until they receive a pardon,” he says.

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“Once you have been denied entry, if the issue comes up, then getting a pardon is fine because the Americans already know that you have a conviction.”

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Trudeau asked to provide pot-users with advice on crossing U.S. border

A U.S. Customs and Border Patrol spokesperson, speaking on background, confirmed the problem in these kinds of cases is that border guards can only see there was criminality but nothing more than that.

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Asked what someone in this situation can do to resolve it, or what documents would be acceptable, he wrote: “Each traveller’s inspection is on a case-by-case basis.”

U.S. officials have said many times that they don’t recognize foreign pardons, most recently in the context of Canada’s legalization of cannabis.

Global News asked the Parole Board of Canada what can be done for people in this situation.

The board referred the question to the RCMP, which didn’t directly answer it. 

“The RCMP does not comment on hypothetical scenarios or specific cases,” Cpl. Caroline Duval wrote in an email.

“If an individual tried to enter another country, including the U.S., before receiving a record suspension, they may have checked your criminal record and documented their interaction with you. U.S. border personnel are not subject to Canadian record suspension legislation and may not have destroyed their own record, even if your criminal record is no longer available on CPIC (Canadian Police Information Centre).”

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Gov. to move forward with ‘free and rapid pardons’ for simple marijuana possession charges

About 7,000 Canadians are given pardons, or record suspensions, each year. To be eligible, a person must have completed all sentences, plus a waiting period of five years for less serious offences and 10 years for more serious offences. The national parole board charges $631 to process the application.

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In most cases, the criminal records of the people concerned are removed from the Canadian Police Information Centre, the national criminal record database, though records of pardoned sex offenders are flagged in such a way that they still show up if a person wants to work with vulnerable people in fields like nursing.

While some pardons are for serious crimes, they are also given out for minor offences like failing to attend court, nudity and breaches of the Fisheries Act.

In 2017-18, one person was granted a pardon for loitering.

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