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Absolute and Conditional Discharges - 2 of the most confusing convictions. Yes, they are convictions and will show on a criminal record for 1 year on Absolute and 3 years on Conditional from your sentence date, at which time they will be purged from CPIC by the RCMP without the need to apply for a Pardon or File Destruction. However, there were some flaws to this and in 1992, some were missed by the RCMP. I am doing a Pardon for a client, and the criminal record came back today, showing a 1992 Absolute - I have not seen this for sometime, and because I am doing a Pardon, am not too concerned about it. I was surprised that the RCMP did not remove yet again. This is just an example of some of the things that you might get caught at the border with. As I stated before a A or C discharge may not warrant a deny entry, but you might have to explain yourself.
@wireless, I have not forgotten about you - I have been reviewing the CRA, Bill C-10 and the Parole Board's site, and not able to find the info I am looking for..I have a call into a supervisor at the PBC asking for direction on where to find the info regarding their policy when the court cannot confirm information. Will keep you posted.
@k scott You mean you need a waiver ...... if they CAUGHT you with the Conditional Discharge, right? If you destroy it BEFORE Homeland Security sees it it is deleted from CPIC....no way for Homeland Security to know. Correct?
Just clarifying. By the way the criminal records act was amended on July 24 1992 in terms of how discharges are treated. ( This has been quoted multiple times on this forum I am surprised it has never stuck in your memory) As I have said before, the discharge STAYS even though you are eligible to have it deleted after 3 years. You basically go and have fingerprints done after the three years, the RCMP will "see" it and destroy it. There is no "automated" system for removing it.
I would like to elaborate on the policy regarding Absolute and Conditional Discharges and give some examples. Let's say that you have a Conditional Discharge for B & E. You would still need a us entry waiver for since this offence since CBP does not recognize a Conditional Discharge as not having a conviction. There used to be a way to permanently clear a person that had a Conditional Discharge for Possession of a Narcotic . It worked in the mid 2000's but now it seems to have changed under Trump. So yes a Conditional Discharge for a relevant offence will definitely require a us entry waiver.
Now the story is different for an Absolute Discharge since that is another story entirely. If you have a relevant offence and received an Absolute Discharge. then you will not need a us entry waiver but you just have to know how to document the packet properly. An absolute Discharge is that you are deemed to having not been convicted. I cannot speak in regards to the pardon part but I can for sure elaborate on the waiver part. We have done this for our clients in Surrey.
My client just called me from Edmonton International Airport - she is trying to deliver her application - and the Custom Officer, doesn't know how to read the RCMP results...(she does not have a criminal record - as this is a overstay situation)...Sometimes I am not sure this is worth the money..LOL...
Please expand on how a summary offence can be reclassified as indictable as per the Parole Board.
Unfortunately, the issue in this country is that nobody follows the rules not even the police. I can only imagine how corrupt the system is on both sides of the border.
@Waiverless, I did not give conflicting information or incorrect information..I simply advised how A and C discharges work in accordance to a criminal record. I also stated that you do not need a Pardon for these convictions in my previous comments. In the case I was most referring to; I am already doing a Pardon for other convictions the individual has, and was surprised to see a 1992 Absolute Discharge show up along with the other convictions. I do not believe that the RCMP directly advise American's about a Pardon. The information is in CPIC, this is how the Americans know..I am not going to review this again, as I have already written about it in detail in previous comments. I too have read the Criminal Code, and it is not clear regarding a criminal record. The 1 year or 3 year showing might actually be an RCMP policy or even the Parole Board Policy. Remember CPIC is owned and maintained by the RCMP - therefore their rules apply..Same with the Parole Board of Canada - For EXAMPLE: If a person has a Summarily conviction according to the Criminal Records Act - and the court house cannot provide any information or have lost their original paperwork - the Parole Board will automatically classify the conviction as Inditactable..and you can argue until you are blue in the face, and refer to the criminal records act all you want..makes no difference to them...So please be careful on always referring to the criminal records act..there are many grey areas..
@Waiverless A conditional/absolute discharge IS a conviction. You plead guilty to obtain it. You do not need a pardon to remove it, but if you have ever seen a criminal record with a conditional or absolute discharge, it looks just like a regular conviction. "I plead guilty but its not a conviction" is ridiculous. Please NOT guilty, be ACQUITTED, that is NOT a conviction.
If you plead "guilty" to assault, the sentence or way you remove the record is irrelevant to the United States. You plead guilty to a CRIME. Therefore the same rules apply to you as everyone else. Why does Homeland Security care that "its easier to get rid of"?
The problem with Discharges is how they are talked about in the media and by lawyers. "I got you a conditional discharge, which isn't a criminal record" is what lawyers like to say. FALSE. The Crown parrots the same thing. If its not a record why do you have to plead guilty? They could simply withdraw the charge. But they do this instead, which is a CONVICTION.
If you never do fingerprints, the discharges are never removed. The RCMP does not have a team of officers scouring CPIC for discharges. When you get fingerprints after the time period, if the RCMP sees them, they will remove them.
Reading the criminal code gives you NO INSIGHT as to how things REALLY work.
I have read the Canadian criminal code and I can publically state that discharges are not convictions, well at least for Canadian law. A finding of guilt is registered though and that may have lifetime repercussions. For starters, other countries might consider discharges as convictions. CBP seems to be quite lax with these but it only takes one agent on a power trip to ruin someone's travel plans.
I am starting to believe that the RCMP doesn't purge anything unless they are bothered about it. They like to hold even irrelevant information on anyone that dealt with them at some point. The government thinks we are all committing illegal acts.
There is no need to obtain a pardon for discharges. You are giving conflicting information just like the article on Global News that I posted a while ago. The important thing that I retained from that article despite the inconsistencies was that RCMP officials advise their American counterparts when someone receives a pardon. CBP then is unable to see what the conviction was all about and will render an inadmissabilty decision. I would like to investigate further on this.
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