@John

By law in Canada, absolute and conditional discharges are not convictions. You are very wrong on this. I already explained that in previous posts.

Here's what the law says:

“In Canada, a conditional discharge is a sentence passed in criminal court in which an individual is found guilty of an offence but is deemed not to have been convicted. Although a discharge is not considered a conviction, a record of an absolute or conditional discharge is kept by Canadian Police Information Centre (CPIC) and by the charging police agency and is purged from the individual's police record after a period of time: one year in the case of an absolute discharge, three years for a conditional one.”

Conditional and absolute discharge

“730 (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order

Marginal note:Effect of discharge

(3) Where a court directs under subsection (1) that an offender be discharged of an offence, the offender shall be deemed not to have been convicted of the offence”

Reference: Canadian Criminal Code

You have repeated the same thing I just mentioned before that the fingerprints remain after a discharge is purged and a file destruction is needed to remove them. A pardon if done properly removes the fingerprints.

You just repeat what I say in your own words thinking that you correct me.

By the way, discharges can be considered convictions for other countries like the USA. The USA Immigration Act INA 212 states that admitting guilt to an offence if committed in the US makes you inadmissible regardless of disposition.

The information is available for anyone to see. Nobody is an expert John.

@HatsBootsHatsBoots

“Peace bonds, diversion, absolute or conditional discharges, dropped and stayed charges are not convictions in this country by law. Most often, the accused must admit guilt and lawyers as you mentioned will try to win their cases by avoiding a "formal" criminal record for their clients striking deals with the prosecutor.”

Your lumping Conditional and Absolute Discharges in with "non convictions". You must plead guilty to get an absolute or conditional discharge. You are therefore "convicted".

The Criminal Records act was amended on July 24 1992.

“Sometimes, the FPS # is removed following the purge of an absolute discharge, usually a year after sentencing or 3 years for a conditional discharge. We are never too sure however that this happens automatically. Many people get pardons but the FPS # remains because a said charge was withdrawn by the Crown.”

The discharge is NEVER automatically removed. You must "prompt" the RCMP by doing fingerprints, 1 year after an absolute discharge, and 3 years after a conditional discharge.

When you get a pardon the FPS# does NOT remain. Convictions AND charges are BOTH sealed.

No offence, but you pontificate like an expert but get these crucial details very wrong. Its not "opinion", its fact. And I have corrected you before on these facts, and you still say the same inaccurate things, mixed in with accurate statements. There is nothing wrong with commenting on things you are SURE of, but its not good for anyone when you make statements that are not accurate.

If you are not sure, don't google. Ask.

@John and sk123

Canada does have a more lenient justice system because it believes in criminal rehabilitation but the US does not really believe in second chances. It's one of those major differences we have with our neighbors of the South. This is all politics and out of the scope of the topic however.

Getting diversion in Canada involves admitting guilt and it's something a lot of minors get. Diversion involves probation most of the time. In Canada by law a conviction stipulates a judge convicted you of a said crime. Unfortunately, people confuse the definition of the word conviction. Getting a conviction means you get a "formal" criminal record on CPIC.

Peace bonds, diversion, absolute or conditional discharges, dropped and stayed charges are not convictions in this country by law. Most often, the accused must admit guilt and lawyers as you mentioned will try to win their cases by avoiding a "formal" criminal record for their clients striking deals with the prosecutor. Many charges are laid by the Crown which have no merit, call it poor decision making from police, false statements given by police or poor judgement from officers following an arrest. In this country, police cannot legally charge anyone, it's the Crown. A lot of these cases clog up criminal courts. Prosecutors and lawyers have no time fighting over small charges and strike deals to push the accused through the system.

The prosecutors will often try to avoid expensive trials as they know the charges can be defeated. They don't want to withdraw the charges to avoid public scrutiny or to save face and a bad lawyer knows they can't get an acquittal even though a good lawyer can. After lengthy talks, they offer a discharge, peace bond or diversion to the accused promising no criminal record but it's not necessarily true.

As I mentioned further up, once the police arrests you, they are legally required to fingerprint you. They create a file on CPIC with a fingerprint number, what we call a FPS #. This can have long lasting future consequences for some individuals after getting acquittals or discharged for example. The reason : the fingerprints are not purged and can be seen by US officials.

Technically once you get arrested you get a criminal record. A lawyer's job is to break the bad news to you but they just collect your money and promise false hopes. They will propose peace bonds, discharges or diversions as they have more important cases to win, no time or they don't find a particular case important enough.

For US immigration purposes, admitting guilt is enough to make you inadmissible. In the past, many Canadians would get September Letters or be able to cross with discharges or diversion but over time, they were deemed inadmissible. New administrations make up their own rules. The petty offense rule does exist but with my experience is disregarded by CBP agents and Homeland Security. Some offences do not bar you entry to the US but CBP agents can legally deny entry to anyone.

It takes a lot to prove to Homeland Security that a discharge or diversion does not constitute a conviction or for a client to qualify under the petty offence rule. Someone get away with it if the offence was committed as a minor. Diversion or a peace bond is considered deferred adjucation which many states use. Deferred adjucation involves no guilt at least on paper. Some states also have discharges however the federal US government does not have such dispositions.

A pardon if done properly removes the fingerprints from CPIC. Discharges, peace bond, dropped charges, stayed charges or diversion do not. It takes a file destruction to remove the FPS #. Sometimes, the FPS # is removed following the purge of an absolute discharge, usually a year after sentencing or 3 years for a conditional discharge. We are never too sure however that this happens automatically. Many people get pardons but the FPS # remains because a said charge was withdrawn by the Crown. File destructions can be denied.

In my opinion, the best approach for someone following a criminal matter is not to travel regardless of the disposition. I do understand that people need however to do so. The best approach once again is to try to hide, conceal or destroy the most information from CPIC before travelling. Criminal reform is needed but hardcore Conservatives will tell you otherwise, hating on Liberals. Liberals will try to avoid the matter because they rather avoid public scrutiny.

So the lesson is to keep your cool and stay out of trouble.

@hatsbootshatsboots I see where you think he was not convicted, because he said:

“The charge was Theft (under $4K) that happened in 2005. I received pretrial diversion and the case was dismissed after probation.”

But the "hint" is probation. So although he worded it in such a way as to minimize the situation (clients invariably do this all the time) you can't get probation without being found or pleading guilty. Conditional Discharges are only granted when you plead guilty and can be removed after 3 years without a pardon. They also have probation but they are also "convictions".

The other hint is he was given a waiver. They would have not have granted him a waiver if he was never convicted. The reason you did not pick up on this is as you have stated before, you do a handful of applications for people you know. When you have done MANY Pardons and Waivers, you are able to quickly see through the language. His language was partially because his lawyer convinced him he did a "great job" and "got him off". But he didn't. He was found/plead guilty. I spend half my day correcting the following statement;

“I was told to pay a fine and do probation and the record would go away after 7 years.”

or

"I was discharged, given probation and found not guilty/my lawyer got me off".

Its lawyerspeak for "hey, I did no work on your behalf other than call the Crown, and tell him you would plead guilty since in Canada we have a lenient system and I do nothing but arrange pleas you could have done yourself, but pay me $5000 to do for you. As a matter of fact, I would have no clue how to actually fight this in court." Then once the deal was done, the hardest part was actually selling you on the idea that I did a great job and by the time you realize that I ripped you off it will be years later.

@kscott

“This is in regards to the other post where people were asking about admitting to weed smoking and they were told to just lie to CBP and say no that they have not been arrested or smoked marijuana. Anyway just FYI.”

Are you telling everyone this because you assumed if they were CAUGHT lying it would have no consequence? I don't think anyone thinks that, in Canada obviously lying to police has a consequence.

The point is telling Canadians the truth about what their options are, and letting them make an informed decision. You would advise Canadians WILLINGLY tell Homeland Security information they do no know to "avoid a felony"? Or because the United States, run by Donald Trump, is the beacon of justice and honesty, and as Canadians we should always tell the truth?

Sigh...The Petty Offence Exception does indeed apply at certain times and it will depend on the severity of the conviction. #84 you may or may not qualify. It will depend on the specifics of our case. Sometimes CBP will mistakenly deny a person entry in regards to a criminal offence.

In my experience, we have used it a number of times and the person can get a lifetime clearance. It will just depend on the case. Also, just because you applied for and was granted a waiver does not necessarily mean that you will have to get one forever,. If it is something like PPT then yes...However, some of the other offences can be cleared other ways and again it depends on the specifics.

Lawyers can be a hit or miss indeed. I have seen some good ones and some really bad ones. We get some packets that have been prepared by certain BC lawyers that are atrocious...We resolve a lot of border crossing issues and I will agree that you get the real experience from doing a lot of waivers...The only added twist though is that you also want someone that has had some legal training and knows the in and out of the process from top to bottom.

Not every offence even needs a waiver. I have spoken about obtaining these September Letters many times before. We have a section on our site explaining them as such.

There is one thing that I want to quickly touch upon. It has been suggested by someone here in the forum that you do certain things regarding your case and then telling CBP that you have never smoked Marijuana or been arrested. Essentially being told to lie to CBP. I want to list the actual statute in this regard:

“Title 18, United States Code, Section 1001, it is a Felony criminal offence to provide false statements to a federal officer. It is punishable up to 5 years in prison and/or $250,000 fine and supervised release of not more than 3 years.”

Title 18, United States Code, section 1621, It is a Felony criminal offence to provide false statements while under oath. You may be fined under this title or imprisoned not more than five years, or both."

This is in regards to the other post where people were asking about admitting to weed smoking and they were told to just lie to CBP and say no that they have not been arrested or smoked marijuana. Anyway just FYI.

@sk123

If you were given diversion as you suggest, you were not convicted in Canada but the US officials view this as a conviction regardless. The matter in Canada is sealed and not revealed to the public which is similar to a pardon. However, the charges do stay in CPIC and can be seen by US border officials as you have been given an FPS number (fingerprint number). In contrast, a pardon if done properly removes the fingerprints from CPIC.

There is a misconception in Canada regarding criminal records. Canada follows the same policies as its british counterparts and other former british colonies. There are ways to avoid a criminal record like diversion, peace bonds, discharges, stayed charges, acquittals or withdrawn charges. Getting an acquittal is in your best interest as you are found not guilty and can request to have all the information destroyed. Almost always, it is not possible to get an acquittal and most people accept their guilt and get diversion, peace bonds or diversions which avoids a conviction as part of a bargain deal with the Crown prosecuter. These dispositions do not necessarily exist in the USA. Each state follows their own rules and the US federal government does not recognize any of the canadian dispotions. To them, you are guilty of a crime that if committed in the USA would make inadmissible as you admitted your guilt.

You need to understand that once you get arrested, the police must fingerprint you and regardless of the disposition, the fingerprints are stored in CPIC forever unless they are removed.

You can apply for a file destruction at the original arresting police force. If they agree, they will destroy your fingerprints or FPS number. They rarely destroy their own police reports/records however. Under the Privacy Act, you can request to see what information they have on you and possibly ask to purge the record but the requests are denied most often.

There is strong evidence to believe that your renewed biometric passport now contains your FPS number from CPIC. Most countries can see you have been fingerprinted if they conduct a deep search on you. Only the USA will give you trouble at the moment, most countries will not entertain the idea of conducting deep searches on you except the ones where you need to apply for a Visa to enter.

There is the petty offence rule in US immigration law but it seems US immigration officials rarely consider it. It wasn't the case in the past. New administrations over the last decade seem to follow their own rules and policies and do not necessarily abide to US immigration law. Nowadays, its more tougher than ever. You are now on the waiver program, so there is no other way to remove you from the list unless you are able to demonstrate the following.

A diversion for US immigration is considered deferred adjudication which is similar to getting a peace bond here in Canada. A peace bond is also considered deferred adjucation. It means you are admissible to the US as you do not admit guilt at least on paper. However, Homeland security officials do not seem to know how to navigate through all these loopholes. You will likely need to demonstrate that your diversion is considered deferred adjudcation under US law and that you are admissible. This will grant you a September Letter if you are able to demonstrate it. Also, if you were under 18 years of age, your crime is considered juvenile delinquency and will get you a September Letter. Good luck.

@sk123

“Theft under $5000 is considered a hybrid offence; depending on the severity of the crime and other factors, it can be an indictable or summary conviction offence. Canada's Criminal Code allows for a punishment of up to two years in prison for those found guilty of theft under $5000.Jul 13, 2017”

Where did you get the impression the maximum was 9 months?

The "petty offence exemption" rarely applies in my experience. You were not given a conditional discharge, you were actually convicted. So although never actually applied, you could have faced a maximum of 2 years in jail.

If you did a waiver, and did a great personal letter, and they GAVE YOU a waiver, then Homeland Security thinks you need a waiver.

I find right now its "oh we didn't realize you were a juvenile" that seems to get September Letters after an initial waiver has been granted. Maybe things will change in the future, but people who look for "loopholes" in Homeland Security are usually just giving you false hope for big fees.

You applied for a waiver, you got a waiver, you probably need a waiver. See my post where I re-applied for a waiver for a client, and because we showed more evidence he was a juvenile for the one offence, he was given a September Letter. Homeland Security cannot be FORCED to do anything, but they do sometimes act reasonably.

I have many clients with theft under $5000, $1000, even $500 who they still give waivers too. Remember, the criminal code isn't changed in terms of "sentences" that regularly. Judges are fairly lenient anyways.

The "$5000/$1000" reflect that the cost and value of stolen goods needed to be updated. Stealing a chocolate bar is "theft under $5000".

You need a waiver. Stop hiring lawyers. They are rarely ever as experienced or as knowledgeable as people who do a LOT of waivers.

BTW, I already applied for a waiver (2nd time) and its been 4 months. No reply from them yet. The charge was Theft (under $4K) that happened in 2005. I received pretrial diversion and the case was dismissed after probation.

My max possible imprisonment was 9 months and there was no actual sentence as the charges were dismissed due to pretrial diversion (which also removed the possibility of conviction).

So, as you can see my case definitely qualifies under petty offense exception.

Is there a way that me or my attorney can call these guys and tell them that this is a mistake and remove the requirement of a waiver.
Thanks

Hello,
If the CBP has mistakenly (with out looking into the court docs fully) sent me back from the port of entry after landing in the airport what can you do to clean up the record of inadmissibility.
I am in that boat now. I was sent back but my criminal case doesnt make me inadmissible due to petty offense exception. INA §212(a)(2)(A)(ii)(II)

The Petty offense Exception states
Inadmissibility Clause {INA 212(a)(2)(A)(i)(I)} shall not apply to an alien who committed only one crime if-
(II): the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

Could anyone suggest what can I do. I know to approach an attorney and I did already. He is not sure what can be done. Can I write to the CBP with an explanation (along with the court documents). I need help. They are making me get a waiver when not needed. This is not rule of law.

#79..Actually, under a few circumstances, you can be denied entry under a D.U.I. D.U.Imeans Driving Under the Influence. Now you could be driving under the influence of Marijuana and that would make you inadmissible under the D.U.I category.

Also, if it is deemed to be an Aggravated D.U.I then they could also technically get you denied entry. D.U.I will be a new focus now for the sharp CBP officers if they ask you what were you under the influence of....based on the legalisation of Marijuana.

#75 you are 100% correct and telling people to lie to a federal officer is a federal criminal violation under 18usc. You will not get a September Letter for the most part if you have a weed conviction. Anyone.

Btw I am back to the forum now as we have been greatly tied up with business and the new services that we have been developing will be offering.

Yes, no one can legally tell a person to lie to a CBP officer or any USA federal law enforcement officer. By telling/encouraging people to lie to CBP you have just broken USA federal law.

usentrywaiverservices.com

@jazzsax

There are certainly no shortages of "dick moves" from American CBP officers. Whatever they want their "discretion" to be is whatever they want it to be.

LOL I know you aren't.

FYI - you might find this interesting. My wife went down for the patriots game via a bus tour on Monday. She said that one of the guys on the bus wasn't allowed across the border. Reason given --- he had 1 DUI on his record.

I told her that wasn't a reason for inadmissibility, and she said the guy knew that as well, but the border officer on the bus was a jerk when they took everyone's passports and refused the guy anyway knowing he basically was going to get left there by the bus and forced to uber back.

According to the officer they were exercising their discretion to let people in for whatever reason they felt like...

:: @jazzsax1 added on 01 Nov ’18 · 17:10

And that is what I call a D*ck move. :)

@jazzsax Lying at the border is misrepresentation absolutely. Technically you are right.

Technically Donald Trump is President of the United States and everything he does is for the good of the nation. 50 lawyers would agree.

:: @John Rogers added on 01 Nov ’18 · 13:11

I am just being sarcastic, not snarky. LOL

@JohnRogers - yes, I hear you, but that's not what you asked. LOL

Whether we agree with their position or not, doesn't mean we have a say in how they enforce it. Their country, their rules. If we want to visit we play by their rules.

By definition --- according to *our* government:
A record suspension allows people who were convicted of a criminal offence, but have completed their sentence and demonstrated they are law-abiding citizens, to have their criminal record kept separate and apart from other criminal records.

Source - https://www.canada.ca/en/parole-board/corporate/publications-and-forms/fact-sheets/record-suspensions-fact-sheet.html

So "technically" if you are asked whether you have ever been arrest or had a criminal record, your answer should be "yes" as the record is still in existence, it's just kept separate and apart from other records. It doesn't dissapear, it can reappear if you reoffend, etc. It's simply a mechanism our government chose to put in place to help people start over.

We're arguing semantics here. People make their own choices on what to say and what not at the border, but you simply asked the question of whether it was misrepresentation or not, and I bet if you asked 50 lawyers, the majority of them would answer yes. The ones who answered no would charge you a bigass retainer and fight for you until your bank is drained.

:)

@jazzsax1 nothing you are saying is "wrong". Technically you are right. And when we find $100 on the street, we add it to our taxable income and pay taxes right?

Here is the other side. Canada gave someone a criminal record. Canada took it away. Americans then tell us we are smart enough to give a criminal record to people, but not qualified to take them away? Its a fundamental lack of respect.

If the United States was a beacon of honesty and integrity and treated everyone fairly, I might tell clients to ALWAYS tell them the truth. This would also make me more money.

As a Canadian, I worry about my fellow Canadians first. I also treat consumers the way I want to be treated. I would want the truth. I would want to be smart at the border.

Donald Trump is the American President. Think of that when you have a flash of "conscience" and want to tell the truth at the border.

I'm not a lawyer, but technically it would be misrepresentation. Remember, the US does not recognize canadian pardons, and so if you answer "no" to have you ever been arrested, you are in effect lying, and "misrepresenting" yourself.

If you'll notice in Canada many applications for jobs / etc ask the question "Have you ever been convicted of a criminal offence for which a pardon has not been granted?" If you answer no after having a pardon, you're clear. Essentially allows you to "Start Over" without the stain of a record....

@WaiveMeIn yes technically that would be lying to a border agent.

But lets look at a real world example.

Steve has a criminal record, never been denied entry, gets a pardon.

He tries to cross, they ask him "ever been arrested", he says no. There is no record to see, he is allowed in. Rinse, repeat.

10 years later he applies for a green card. Now some fingerprints are being done under the privacy act so lets assume now there is no way to hide it.

Unless Homeland Security keeps meticulous records of checking for a record and what he said (don't forget he was let through without incident) they would never know he lied.

Anyone else want to weigh in? Its a great question.

@John Rogers

Hi John, just curious, wouldn't that be technically lying to the border agent?

I guess if all you're seeking is non-immigrant entry, the stakes are not that high, but if later on, you seek a green card or even naturalization, wouldn't this potentially cause issues due to misrepresentation?