Youth records and crossing the border

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.

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:

USA Department of Homeland Security Traveller Redress Program” http://www.dhs.gov/dhs-trip

Canadian Department of Justice: Information About Youth Records, http://www.justice.gc.ca/eng/pi/yj-jj/information/rec-dos.html

JFCY info on youth records: http://www.jfcy.org/ycj-records.html

This post was written by JFCY volunteer Krista Nerland, with info from a JFCY staff lawyer.

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