Scenario:
Justin is 18 and a Canadian citizen. Four years ago, he got into a fight at school
and was charged with assault. Justin pled
guilty and was sentenced to a conditional discharge. Justin completed all requirements of the
sentence. Since then, he has put the
incident behind him, and hasn’t had any other charges or interactions with the
police.
Justin’s friends are going to Buffalo, New York
next weekend to see a concert, and he really wants to go with them. He is wondering if his old charge of assault
will prevent him from being admitted across the border into the USA.
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| Photo: Associated Press, http://www.buffalopost.net/?tag=border-crossing |
Legal
Answer:
Youth records relating to a conditional
discharge sentence for a youth charge are sealed three years after the finding of
guilt, as long as that youth has not re-offended.
Justin’s youth record is sealed, since more
than 3 years have passed since he was found guilty and sentenced. This means that this info would not show up
in a criminal records check or in the
local police files.
But this doesn’t necessarily mean he won’t
run into problems at the border.
There is no absolute right for a foreign
national to enter another country. The USA has the
discretion to refuse entry to anyone, for any reason.
Generally, other countries (such as the USA) are not given access by Canada to information about Canadian
youth records. By contrast, the USA has access to criminal records
information for adults through the
Canadian Police Information Centre (”CPIC”) database.
This means that if a USA border official
runs Justin’s name through the CPIC database, then it will NOT result in a hit
and thus no information about Justin’s past youth record will be available to
the border official.
However, in some cases, other countries do
find out about youth records, especially while they are open.
One way that they find this information out
is if they ask a young person who is crossing the border about their record and
the young person tells them about it. Once
the USA
obtains information about anyone’s record they have the right to keep that
information indefinitely.
If the United
States did obtain information about Justin’s record in
the past, they can decide to keep it on file after his record is sealed in Canada. Information about his record can then can be
used as grounds to keep him from crossing the border in the future.
When Justin heads to Buffalo this time, if
he is asked about whether he has a youth record or current charges, he can
truthfully say “no”, since he completed his sentence AND his youth record has
been sealed. (Note though, that if Justin’s record had not yet been sealed, then
answering “no” would not be truthful.)
If the US already this info about his
record on file (say, for example, that he told them two years ago when he
crossed the border), it is—unfortunately—impossible to know if Justin will be
denied entry. It will likely be up to the individual border guard at the Buffalo crossing to
decide whether or not Justin can cross.
For people who have been refused entry to
the USA,
there are some applications that can be made to the USA Department of Homeland
Security to seek a waiver or to seek a correction of inaccurate information that
has led to a person not being allowed into the country.
If you live in Ontario
and have questions about how your youth record will affect your ability to
travel, or if you have been refused entry to the USA because of your youth record,
then please contact JFCY to speak to a lawyer about your specific legal
situation.
For
more information:
This
post was written by JFCY volunteer Krista Nerland, with info from a JFCY staff
lawyer.
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