Even though a discharge is not a conviction, it is still evidence of guilt, and may still render a person inadmissible to the United States. In Canada, a discharge means that a person was found guilty, either by plea or finding of guilt, but was not convicted. There are two types of discharges. A discharge can either be absolute or conditional.
An absolute discharge means you are immediately discharged with no conditions or punishment. It will appear on your criminal record for one year but, after that, you can go through life without disclosing involvement in the criminal justice system and will not be impeded from travelling to the United States. A conditional discharge means that you are given a fine or specific conditions you must comply with for a period of time before you are discharged. This will stay on your criminal record for three years and can possibly impact travel to the United States. In any case, the relevant period of time must be completed and all conditions met, before you can have the freedom to travel again. It is important to note that of the two discharges, absolute is rarely considered while conditional is by far the most common.
5 Crimes that will still allow you entry into the USA
A single conditional discharge, absolute discharge, or conviction of the following crimes would still allow you entry into the USA.
- Simple assault
- Impaired driving (DUI)
- Causing a disturbance
However, you can be refused entry into the USA if a discharge or conviction resulted in the admission of guilt in committing a crime under the following categories
a) Crimes of violence; an element of intent to harm exists, including sexual assault;
b) Crimes of Moral Turpitude including theft, fraud, possession of stolen property;
c) Crimes involving Drugs including possession or distribution.
One-Offense Exception Rule
If you have only one offence that resulted in a discharge, conviction or admission of guilt that is of moral turpitude and it was tried summarily then you will be exempt from inadmissibility. Meaning you won’t need a waiver and can still travel to the USA.
Ultimately, there is no guarantee how the American border officials will react when dealing with a Canadian who has received a discharge. In reality, the nature of the charge itself (i.e charges that are drug-related or violent in nature) may be considered by the American border official more than whether the person received a discharge or not.
Are my records destroyed once I successfully complete my conditions?
Once you have successfully completed the conditions set out by the court, most times your record will be destroyed. The police station seals your absolute discharge record automatically one year after the date you are sentenced. For a conditional discharge, the record is sealed three years after the date you are sentenced
What if I fail to comply with the conditions of my discharge?
In a case where you do not meet the conditions of the probation or commit another offence during the probation period, you will be returned to court, have the discharge cancelled, and receive a criminal conviction for the sentence and the breach of probation. This would mean that the charge will stay on your record until you get a pardon to clear your record or a waiver to travel to the US.
It is important to note that although in Canada some laws are legal, if the United States deems them unlawful, the border officials could deny you entry. For example, even if the marijuana was purchased and consumed legally in Canada, Cannabis is a Schedule 1 controlled substance according to US federal law, and the USA border is under federal jurisdiction. Meaning that, any Canadian who admits to having ever used cannabis may be refused entry at the border and possibly receive a ban. The same applies to prostitution laws, where a mere text or photo portraying it can merit enough grounds for the customs agency to deny you entry.
Will I need a record suspension (Pardon) if I receive an absolute or conditional discharge?
A record suspension is only required once you have a conviction that will appear on your criminal record. An absolute or conditional discharge does not result in a criminal conviction, therefore there is no criminal record to suspend or pardon. However, failure to comply with the conditions set out in a conditional discharge may result in a conviction. Meaning that you would need a record suspension to remove this.
So unless you have completed your probation period or your discharge was not violent and/or drug-related, it is best to delay any travels to the USA. Because not only can Canadians with a criminal record run the risk of being denied entrance when attempting to travel to the USA, but they can also run into problems when transiting through US airports on their way to another destination. You still run the risk of being turned away even if you have received a pardon from the Canadian Government since the United States does not recognize Canadian pardons.
In such a case, the best solution would be to submit a US Entry Waiver application and receive permission from the United States Department of Homeland Security. This is a document that grants entry into the United States to a Canadian citizen who has a criminal conviction, discharge or another type of issue, such as a past overstay, that would otherwise hinder their ability to travel.
A US Waiver of inadmissibility can be issued for a time frame of one to five years. The Department of Homeland Security takes into consideration a number of factors including the strength of the application, the seriousness of the offenses that were committed, the passage of time since the convictions occurred, and whether or not it is a new Waiver or a Waiver renewal. Once granted, a person can visit the United States multiple times during the duration of the time set out in the US Travel Waiver.
Because a discharge is still a finding of guilt, you may still need a waiver to enter the United States. Contact us for a free consultation if you need a US Waiver or file purge at 1-866-972-7366.