In a routine background check at Pearson International, a stern immigration officer looks at his passport and directs him to “secondary”. Captain Brook Miles is subsequently denied entry because of two offenses back in the “college days” some 30 years ago that he had “totally forgotten about”.
Jackie Dillard, a flight attendant with over 20 years in the service was declared “inadmissible” at Montreal Trudeau Airport by the Canada Border Service Agency (CBSA) following a cursory check by an officer on the NCIC (National Crime Information Centre). Her issue? A DUI conviction in 2010.
In both cases, the airline had no idea about their criminal disposition. Both Captain Miles and Ms. Dillard were hired before background checks were routine and before mandatory FAA reporting requirements. Both knew that Canada had “very strict” laws governing admissibility, but neither realized that their set of circumstances would apply to them.
Mr. Miles was under the impression that Canada automatically “forgave you” after ten years since completing probation (which is only true if a person has one non-serious conviction in his adult lifetime). Ms. Dillard thought Canada only barred felons as opposed to misdemeanor offenders. Both felt confident in their beliefs because, until now, they had entered Canada “dozens” if not “hundreds” of times without incident in the past. Unfortunately they were gravely mistaken. Despite her seniority, the flight attendant was suspended without pay until she found a way to “resolve this matter”. The captain was put on reserve, with the upsetting scheduling ramifications on what used to be a predicable schedule.
Each year, hundreds of crew members like Miles and Dillard, from trainees to veteran officers, get denied entry into Canada from a provision in the Immigration Refugee & Protection Act (IRPA) which states that:
“A foreign national is inadmissible on grounds of criminality for having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament….”
– Immigration and Refugee Protection Act (IRPA) (S.C. 2001, c. 27) § A36(2)(b)
The effect of this statute is that misdemeanor and felony convictions can potentially bar you from entering Canada. Contrary to what most travelers believe, the swapping of a passport doesn’t automatically lead to a background check unless the traveler was previously flagged by immigration. A primary officer, however, will routinely and randomly refer travelers for further inspection at “secondary” where background checks are performed.
In a revised security arrangement negotiated between President Obama and Prime Minister Harper, criminal checks will become even more routine to a point where a background report will be conducted automatically prior to check-in at the boarding pass stage! You can say that technology has caught up with the business of background checks and admissibility.
The good news is that the Immigration Refugee and Protection Act allows for a special waiver that overrides inadmissibility for a period of time – called a “Temporary Resident Permit” (TRP). A TRP may be awarded on a one-time basis or multiple entries spanning a year or two. US citizens and visa-exempt nationals, including green card holders, may apply for a TRP directly at the border.
However, while there’s some leniency for crew members, the margin for error is very low when requesting a TRP at the airport. If you wish to apply at the border – you better know what you’re doing in terms of paperwork to present.
If five years have elapsed since completing a sentence, which includes the latter of full payment of a fine, restitution, reinstated driving privileges, probation, etc., we recommend submitting an application for “criminal rehabilitation” at the relevant Canadian consulate or Embassy as soon as possible. While the process for obtaining a “rehab” is long (about 18 months at the time of writing), the effect of an approved application is that it effectively cures ones inadmissibility – permanently. In this vein, and to the extent possible, an experienced immigration practitioner will advise to submit an application for criminal rehabilitation prior to heading to the border as this will at least demonstrate good faith effort in trying to resolve the issue.
Other strategies to securing your entry into Canada may include the obtaining of a deferred adjudication, set-aside, a “withheld”, “expungement” and other forms of a deferred disposition that may not count as a formal conviction for the purposes of entry into Canada. States that have a form of deferred adjudication which may or may not apply to your set of circumstances, include Arizona, California, Idaho, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Missouri, Montana, North Carolina, North Dakota, Oklahoma, Oregon, Rhone Island, South Dakota, Tennessee, and in exceptional cases, the state of Washington. If you have a deferred disposition or an expunged record, remember that the arrest record will still come to show on the NCIC and the onus is on you to prove that your disposition in the US is equivalent to the disposition in Canada. In these circumstances, it is therefore extremely helpful to engage a practitioner who is familiar with both the US and Canadian criminal vernacular.
About the Author. Mr. Laforce is a Regulated Canadian Immigration Consultant with Global Crossing Immigration (GCI). GCI specializes in admissibility to/from Canada and the US. Mr. Laforce works with countless crew members spanning the airline industry obtain temporary waivers (TRPs) so they may continue to serve their airline without being barred from Canada. GCI offices are located in Montreal, Canada and Dallas, Texas. Mr. Laforce may be reached at [email protected].
