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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I have a youth record. What happens to it when I turn 18?

It depends.

 

Your youth record does NOT automatically disappear when you turn 18. Instead, the law sets out a period in which the record is open and can be accessed by people that are authorized by the law, like the Crown Attorney, before it is sealed. The relevant law is called the Youth Criminal Justice Act. 

How long your record will lasts will depend on:

• 1.      The seriousness of the crime you committed
• 2.      The sentence you were given, AND
• 3.      Whether you commit another crime while you still have an open youth record for a previous crime.

If you get an Absolute Discharge, then your record for this offence will be open for one year after being found guilty of the offence.  If you receive a conditional discharge, then your record for this offence will be open for three years after being found guilty.  If you get EJS (extrajudicial sanctions) then this will be on your record for two years from the date you agree to do EJS.

For more serious sentences (like probation and custody), the length of time your record is open depends on the seriousness of the crime. For instance, if you were found guilty of a summary conviction offence, which is a lower level offence, then your record will be open for three years after you complete your sentence.  But if you are found guilty of a more serious offence, known as an indictable offence, your record will be open five years after your sentence is completed.  

And if you committed a really serious offence, like murder, manslaugher, attempted murder or aggravated sexual assault, your record may be open indefinitely.  

If you have an open youth record and then are found guilty of a new crime while charged as a youth, then the time period starts fresh: this means that the original offences will be open until the retention period for the new offences is complete.

Finally, if you have a youth record that is still open when you turn 18, and you commit another offence before it is sealed, your youth record will become part of your permanent adult record.

For more on youth records, go to http://www.jfcy.org/ycj-records.html

To talk to a lawyer about your own record and questions you have about when it will be destroyed, please call JFCY at 1.866.999.5329 if you are in Ontario.

This post was written by JFCY volunteer Krista Nerland, a law student at UofT.  Reviewed by JFCY.

What does it mean to be charged with a crime?

In order for you to be charged with a crime in Canada, that behaviour has to be prohibited by a law. You can find most of the offences that young people are charged with in the Criminal Code, or in a related statute (for instance, if it is a drug offence, you might find it in the Controlled Drugs and Substances Act).


Every crime has two elements—a prohibited act (or actus reus) and a criminal fault (or mens rea).


Actus Reus


The Actus Reus is pretty basic—the Criminal Code states that it is illegal to do a certain action, like steal another person’s things, or to fail to do a certain action, like provide the things your children need to live. The words that are used in the provision are really important to understanding what exactly is considered to be a crime.


For instance, when you think about robbery, you might think about a holdup of a convenience store. And that would definitely be a robbery. But the wording of the provision in the Criminal Code that prohibits robbery includes a lot more than that. For instance, under s. 343(C) of the Criminal Code, robbery also includes assaulting someone with the intent to steal from him or her. This means that you can be guilty of robbery even if you don’t actually steal anything, as long as you intend to steal something when you assault someone. And the Criminal Code defines assault broadly. It includes applying force in order to harm someone without their consent. It also includes making threats to apply force to someone, and impeding someone or begging while openly carrying a weapon. So you could be convicted of a robbery for making threats to harm someone, or begging or impeding someone while openly carrying a weapon (the prohibited action), as long as you have the intent to steal.


Mens Rea


This raises the second element of a criminal offence—the criminal fault, or mens rea. Sometimes, people call this the "guilty mind." The intent to threaten/hit and steal is the mens rea for robbery. The idea of the mens rea is that someone should not be found guilty of a crime if they don’t have the required level of fault. So, in the robbery example, you could not be convicted of robbery if you impeded someone while openly carrying a knife, when you did not also have the intent to steal. (But you could probably be convicted of assault).


Different crimes in the Criminal Code have different levels of fault associated with them. You might find them in the section—look for words like “intent,” “knowingly,” “for the purpose of”, “recklessly” or “negligently” for clues. Other times, however, the Court has decided the level of fault associated with a given crime while it is hearing a case.


So, when the Crown attorney (the government lawyer) goes to Court to prove someone committed a crime, they have to prove beyond a reasonable doubt that the person both committed the act and that they had the guilty intent. If they can’t prove both the act or the required level of intent, that person cannot be convicted or found guilty of that crime.


Want to understand the actus reus (prohibited action) and the mens rea (criminal intent) for other criminal offences?  You can look up the definition of an offence in the Criminal Code of Canada.


This post was written by Krista Nerland, a PLE Team Member and JFCY volunteer.  Krista is a first year law student at the University of Toronto. Legal info was reviewed by JFCY.