By Jesse Stamm
Happy New Year! This article will provide an overview of the consequences of having a criminal record. As many of you may well know, having any criminal convictions for a cannabis offence (even if you only received probation as a sentence) can affect your ability to travel to other countries—particularly the United States. Many travel destinations, such as Mexico or the European Union, do not have the same access to records as the United States and may not be aware of your criminal record. However, entry into a foreign country without first disclosing the fact that you have a criminal record could lead to your detention and deportation if your criminal record is discovered. I would advise contacting a Canadian Embassy or Consular Agency in your planned destination country before attempting to enter that country if you do have a criminal record.
One available option for dealing with an existing criminal record is to apply for a pardon. To be eligible to apply for a pardon, you must have completed your sentence and waited a number of years. For a summary conviction offence, the waiting period is three years; for an indictable offence (if you are unsure, any criminal courthouse registry can probably help you find out what your record actually holds) the waiting period is five years (these waiting periods refer only to cannabis offences, personal injury offences have longer waiting periods). The current application fee is $150, although there is some discussion about the fee being increase to $631 in the near future. Detailed instructions on the pardon process can be found at <http://pbc-clcc.gc.ca/prdons/pardoninstr-eng.pdf> Basically, you need to get an official copy of your criminal record from the RCMP in Ottawa, and a number of other documents before you can complete the application (this can take close to a year, so you should get started about a year before your waiting period is finished). Once your application is submitted, it takes between six and 18 months for it to be processed. Failure to provide complete records and complete disclosure can lead to delays or rejection of the application.
However, being granted a pardon does not erase the criminal record, nor does it necessarily help you get into another country. For example, the United States has laws that deny entry to anyone who has been convicted of possession or trafficking in a controlled substance (such as cannabis) regardless of whether or not a pardon has been issued by the Canadian government. To get into the U.S. if you have a cannabis conviction, you must apply for a separate “waiver of ineligibility.” This requires completing a Homeland Security form: “Form I-192, Application for Advance Permission to Enter as Nonimmigrant.” This form can be found at <http://www.cbp.gov/xp/cgov/travel/id_visa/indamiss_can_info.xml> The application requires complete disclosure of your court history, similar to the pardon application, and submission of a non-refundable USD$585 fee. Processing of this application can take up to a year, and there is again no guarantee that it will be accepted. Other countries may have different requirements.
Therefore, if you are charged with a criminal offence and do not have a previous criminal record, it is important to obtain legal counsel and if convicted, to attempt to get a conditional discharge. A conditional discharge is removed from your record three years after your conditions are completed, and you are then entitled to say that you do not have a criminal record. Of course, avoiding criminal activities is the easiest way to avoid a criminal record.
