Question of the Day: Is Obstruction of Justice an Excludable Offence?
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?
Answer: Obstruction of Justice is not of concern if it is in relation to a non-excludable offence, but…
#1. Not Excludable:
- Driving offences generally are not excludable. Since your offence is in relation to a non-excludable offence, it too is non-excludable, meaning you do not need a waiver.
#2. Excludable, But Exception Rule Applies:
- Even if it were on the list of excludable offences, you have only one offence. If you have only one offence like this and it was tried summarily, Homeland will ignore it due to an exception rule (Exception Rule: it is okay to have only one provided the maximum potential sentence does not exceed 1 year and you were not sentenced to 6 months or more in jail and it is not drug related).
- Though my 25 years of experience tell me it is NOT on the list of excludable offences, I can never guarantee that fact as I am not a lawyer and cannot give legal advice…I can only share my experience and rational…feel free to review this email with your lawyer. There is not one paralegal in Canada that operates a Pardon/Waiver business that can technically give ‘legal advice’. They too, can only share their experience. Even lawyers in Canada are not often not licensed to give legal advice on U.S. Immigration matters as they are not licensed to practice in the United States.
- Check out this blog: Criminal Record? You may be inadmissible to the United States. (check out the details on the Exception Rule).
#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
- All summary convictions carry a maximum potential sentence of 6 months in jail or $5,000.00 fine, unless the Criminal Code specifies otherwise. Since the definition of above does not include any additional sentencing, your particular summary offence falls under the exception rule.
#5. Tried by Indictment
- Even if it were indictable, because it is NOT in relation to an excludable offence, you are still okay. HOWEVER, when indictable, the issue of inadmissibility is more confusing to the United States and you risk refusal in error.
- Border guards simply have too many rules/laws to remember. If the crown proceeds by indictment, border guards often think that you need a waiver because they mis-apply the exception rule that states they only ignore it if it is summary. But, instead, they need to realize that the offence is not in relation to an excludable offence so it is not an excludable offence. So, whether it is summary or indictable, the distinction is irrelevant.
- If the border guard is uncertain if this is an excludable offence, simply point out that it is summary. The exception rule is pretty clear to border guards. They generally understand that one summary offence that meets the highlighted criteria above falls under the exception rule and they rarely refuse entry in error with regards to this.
#6. Do I appeal the sentence?
- If you fight the charge, and still lose, you have to ask your lawyer: What is the possibility that if I lose, the courts will impose a heavier sentence?
- I’ve seen this happen because the courts view the appeal as a lack of remorse if in their opinion the evidence shows you are guilty.
- It seems to me you are only wanting to appeal the sentence since as you indicated, you already ‘plead guilty’ in hopes of a discharge.
- THEREFORE, I AM CONCERNED THAT IT COULD BE RE-TRIED AS IN INDICTABLE OFFENCE. If it is tried by indictment, border guards often deny in error because they think the exception rule does NOT apply because it is indictable. (BUT, remember, if the offence is not in relation to an excludable offence, it does not matter whether it is summary or indictable).
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