I thought I’d share it with you. I modified the question so that it it does not identify the person the inquiry was made for. Here is the question:
A client of ours has inquired about applying for a Nexus Card. She was charged with possession of a small quantity of marijuana and was given an absolute discharge in provincial court in the 1970s. She obtained a pardon for this matter from the federal government in the early 1980s. Question: Will the U.S. be able to access this information in the approval process, assuming she doesn’t disclose it ?
Your question has brought up several issues.
If it is an absolute discharge, she should NOT have been pardoned. An Absolute Discharge qualifies to be automatically purged after 1 year and therefore is not pardonable (since it automatically goes away). So, if she has been pardoned, I doubt that it was an absolute discharge.
It is unlikely to show up, unless your client went to the U.S. before her discharge was purged or she was pardoned or she disclosed it at any time to U.S. authorities.
The U.S. can access a Pardon if they really want to, but they rarely go to the effort unless they have a really good hunch. The Parole Board website indicates they may choose to disclose a pardoned file to an allied country. This means there is a possibility the United States can and will access a pardoned file.
If an absolute discharge, it would appear on her Criminal Record for 1 year. Back in the 1970s, one would then have not notify the RCMP to purge it after 1 year. Therefore, if she failed to notify the RCMP after 1 year to purge it, then it would stay on her record longer than is required by law. Once purged, it would be impossible or impractical for the U.S. to access it. They’d have to contact the courts where she lived to see if she had anything against her. Given the lack of technology at that time, unless they were able to provide the court house with specific details of what they were looking for, it would have been hard to find.
Your client could have vacationed or visited any city or town in Canada while charged. As a result, the discharge could be anywhere in Canada. It would definitely be impractical for the US to start calling every court house in Canada!!! Therefore, if the discharge was properly purged before any attempt to enter the U.S., it would be impossible or impractical for the U.S. to find out about it.
The challenge is not whether or not the U.S. can access her record, but what is the legally correct answer, if questioned about her past. If she is asked “have you ever been arrested, fingerprinted, discharged, pardoned, entered into any kind or program or convicted?”. A truthful answer would be “yes”. A discharge (or participating in an alternative measures program) is seen as evidence of guilt by the US because there has been an “admission or finding of guilt”…and would result in her having to get a waiver for legal entry, provided she was 18 or older when she committed the offence.
I would never counsel misrepresentation, even if there is a chance a person can get away with it. First, the U.S. treats border security very seriously. They put people who lie to them on the same level as a person who just committed a serious crime. Though they rarely prosecute misrepresentation, they can if they choose. Second, I would not want to encourage anyone to break a law. I’m in the business of helping people put their criminal past behind them…I’m the last person to encourage or want anyone to break the law!
I know you do not have thoughts about counseling misrepresentation–as a lawyer you will be well-educated about what this means and how to avoid it. What you are trying assess is does your client legally have to disclose her record, even if it is no longer available. The only reason I have “Counseling Misrepresentation” as part of my blog is to emphasis that as practitioners, we can’t counsel misrepresentation. My paralegal industry is unregulated and there are a number of paralegals out there that don’t fully appreciate or realize that telling someone to lie about their criminal record comes at considerable risk to the person they think they are helping. There is even a risk that they too could get themselves in trouble for counseling misrepresentation or they could develope a reputation with U.S. authorities as someone who counsels misrepresentation. So, if someone reading this blog has been counseled by someone else to lie to a border guard, I think by this blog they’ll understand why that is not a good idea.
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