I pled guilty to an obstruction charge today in hopes of a getting a discharge. I was not given the discharge, but a $500.00 fine instead. Will this affect my travel to the United States? I usually travel there 1 or 2 times a year. It was tried summarily. I was caught driving without insurance and gave an officer a false name.
My lawyer figures we could appeal the sentence as he still figures I should have gotten a discharge. Not that having a criminal record is what I want, but my biggest concern at this time is will I still be able to visit the USA until the time comes that I am eligible to suspend my record.
So I guess I am asking whether I will be able to cross the border without trouble or should I be trying to appeal the sentence with no guarantee of success?
#1. Not Excludable:
#2. Excludable, But Exception Rule Applies:
#3. Criminal Code of Canada Sec 129 Obstruction of Justice states;
Offences relating to public or peace officer
129. Every one who
(a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer,
(b) omits, without reasonable excuse, to assist a public officer or peace officer in the execution of his duty in arresting a person or in preserving the peace, after having reasonable notice that he is required to do so, or
(c) resists or wilfully obstructs any person in the lawful execution of a process against lands or goods or in making a lawful distress or seizure,
is guilty of
(d) an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(e) an offence punishable on summary conviction.
#4. Sentencing for Summary Convictions
#5. Tried by Indictment
#6. Do I appeal the sentence?
Summary – Do I need a Waiver?
(a) First question to ask: is it excludable? The answer is “no” because it is NOT in relation to an excludable offence. Therefore, whether or not it is summary is irrelevant. You do not need a Waiver.
(b) Second question to ask: if it were an excludable offence, do I need a waiver? The answer is “no” because it is summary and the U.S. will allow one summary offence like this due to the exception rule. You do not need a Waiver.
Therefore, in either case, the border guard should not have an issue with your particular offence. It is recommended that you travel with the Court Document to prove it is a summary offence just in case the border guard presumes it is on the list of excludable offences (which it is not because it is not in relation to an excludable offence).
Summary – Should I appeal:
(a) I’m concerned that if you appeal, the crown might be able to go by indictment. I don’t know if this is possible or not. Check with your lawyer.
(b) If tried by indictment, border guards will have a harder time assessing your inadmissibility and may deny in error.
Record Suspension: you can apply for a Record Suspension 5 years after you complete the sentence if tried summarily. If you appeal and lose, the Parole Board goes from the new date of sentencing. This could delay your Record Suspension eligibility by the length of time it takes the Judge to rule on the appeal provided the offence remains summary. It could get worse. If it becomes indictable, then the waiting period becomes 10 years, not 5 years, before you can apply for a Record Suspension.
If you know anyone that needs a Pardon (Record Suspension), please refer them my way. We have a BBB A+ Reputation and are Consumer Choice Award Winners. There are 2 pardon companies on-line that are currently bankrupt and still taking money from people…so do your research before you hire a Pardon/Waiver company or refer one.
Debbie Ward, President
I have been processing waivers for over 25 years. It used to be that spousal assault was determined to be an excludable offence if one of the following conditions occurred:
When I refer to spousal assaults, I am referring to simple assault or common assault, which is currently section 266 of the Criminal Code of Canada (in prior years sections could have been different). This ‘fact’ was based upon a written internal memo I had once received from a U.S. Port Director. Therefore, if a person had only one spousal assault and it was tried summarily, they would NOT need a Waiver for legal entry to the United States.
For years, inadmissibility regarding spousal assault was common practice. Individuals with such offences were routinely denied entry to the United States and instructed to obtain I-192 Travel Waivers which helped them overcome their inadmissibility and gain legal entry to the United States. If you were denied entry to the United States and subsequently applied for a Waiver as instructed, if the granting office determined that the refusal and instructions to obtain a Waiver was in error, often the granting office (currently called U.S. Customs and Border Protection, located in Herndon, VA United States) would issue a non-inadmissibility letter advising that the person was in fact NOT inadmissible based upon the information provided. No such letters were provided at the time, thus confirming the opinion of the Port Director, from whom I received the internal memo that confirmed the opinion of Homeland Security regarding spousal assault and inadmissibility.
I’ve estimated that around 2003, it was determined that spousal assault was in fact NOT an excludable offence. The element of intent to cause harm was missing. This means that a person with spousal assault (ie. common or simple assault) was no longer excludable. Previously, only spousal assault was of concern. If assault did not involve a spouse, provided it was common or simple, it was never of concern to US authorities. A court ruling determined that if it was common or simple assault, it did not matter whether or not it involved a spouse. All common assault or simple assault are treated the same. You do not need a Waiver of Inadmissibility for Non-Immigrant to visit the United States.
How did U.S. authorities err in determining inadmissibility? I believe the reason is spousal assault disqualifies immigrants from living in the United States if it occurred within a period of time of that person taking residency or applying for residency. Therefore, U.S. authorities confused the issue of deportability for immigrants with inadmissibility for non-immigrants. Spousal assault is ONLY problematic for immigrants. It is not of concern for non-immigrants.
The following posting is another explanation of inadmissibility for non-immigrants. Remember, when researching this topic, you need to be clear as to whether you are reading laws for immigrants or for non-immigrants. This particular article is related to non-immigrants.
I have processed several thousand waiver applications over 25 years, and for many years, spousal assault was a problem. But, since around 2003, not only has the issue been clarified (common assault or simple assault involving a spouse), I don’t recall having had any clients since that time have any issue regarding travel to the United States with this type of offence.
The RCMP sent out a news bulletin regarding Digital Fingerprints which states:
Effective July 1, 2014, the Canadian Criminal Real Time Identification Services (CCRTIS) will only accept electronic fingerprinting (Digital Fingerprints) submissions for civil purposes. Paper submissions will not be processed and will be returned to the originator. You are encouraged to visit the CCRTIS website to obtain information regarding accredited companies that offer Digital Fingerprints services or to consult with your local police service.
We are an accredited fingerprinting agency. We can convert your ink fingerprints to digital fingerprints in compliance with the RCMP new requirements. For more information, please select the link below;