Blacklisted and Rebuffed by Canada
posted by Daniel Solove
So you want to go to Canada, eh? Well, you might get turned away at the border if you have any criminal convictions in your past. Even ones from 20 or 30 years ago. Even minor crimes. From the San Francisco Chronicle:
Or ask the well-to-do East Bay couple who flew to British Columbia this month for an eight-day ski vacation at the famed Whistler Chateau, where rooms run to $500 a night. They’d made the trip many times, but were surprised at the border to be told that the husband would have to report to “secondary” immigration.
There, in a room he estimates was filled with 60 other concerned travelers, he was told he was “a person who was inadmissible to Canada.” The problem? A conviction for marijuana possession.
In 1975.
Welcome to the new world of border security. Unsuspecting Americans are turning up at the Canadian border expecting clear sailing, only to find that their past — sometimes their distant past — is suddenly an issue.
While Canada officially has barred travelers convicted of criminal offenses for years, attorneys say post-9/11 information-gathering, combined with a sweeping agreement between Canada and the United States to share data, has resulted in a spike in phone calls from concerned travelers.
They are shocked to hear that the sins of their youth might keep them out of Canada. But what they don’t know is that this is just the beginning. Soon other nations will be able to look into your past when you want to travel there.
Over at MSNBC, journalist Bob Sullivan writes about the way data brokers are gathering information about people’s criminal histories:
Getting criminal records expunged from court records is often easy. Multiple programs allow convicts to clear their names after proving they’ve cleaned up their act. But clearing the digital mess left behind can be much harder, she said. Commercial background database vendors gobble up criminal records, but many are not nearly as efficient at deleting records that have been expunged by the court system, she said.
“These databases take a snapshot of someone’s record, then put it out in perpetuity,” she said. “There’s little oversight of the databases, and even less interest in updating people’s information in them.”
The law currently provides little regulation of the collection and use of prior criminal record information. Increasingly, it is being used to brand people for life, limiting their ability to get jobs or to travel outside the United States. The MSNBC article continues, with a quote from me:
Congress planned for this very problem long ago, Solove said, and in the 1970s enacted limitations on reporting of criminal records for employment background purposes. The Fair Credit Reporting Act forbids listing of most felonies on employment background reports after seven years from the end of the sentence.
Most states also recognize the problem of perpetual felony records, and offer various processes to give reformed criminals a chance at a clean slate, he said. But crime databases can make that largely impossible. While federal law limits the time criminal records can be revealed to future employers, no law limits the access members of the general public can have. Your new neighbor can pay $50 to Intelius and see your criminal past at any time, reaching as far back as your teen-age years.
“Increasingly convictions are really becoming these permanent anchors preventing people from basically starting anew … data forever affixed to someone’s identity like a digital scarlet letter,” Solove said.
I couldn’t have said it better myself. . . .
So will we see more countries like Canada obtain people’s criminal histories and start turning them away? Will people with a criminal record be able to travel anywhere in the future? Is this just a good security practice or overkill?
March 15, 2007 at 12:14 am
Posted in: Privacy, Privacy (Gossip & Shaming), Privacy (Law Enforcement)
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Responses (6)
Matt - March 15, 2007 at 12:59 am
This happens to people comming in to the US too, even to long-term permanent residents who never expected a problem. I worked with a man some years ago who was a LPR but a citizen of Jamica. He’d been arrested on minor marijuana charges many years ago and have traveled back and forth to Jamaica several times since then. Officially he was always inadmissable after the conviction but it wasn’t until after data-sharring got going after sept. 11th that this was ever a problem. We benefited from what I assume was prosecutorial discretion allowing him to stay in the US w/ his ill wife, but it’s now a big problem for people with prior convictions that would make them inadmissable to the US, too.
Deven Desai - March 15, 2007 at 6:31 pm
Does anyone know what motivated the Canadian approach? In other words was this a policy they thought of as necessary on their own? Was it a reaction to other countries’ treatment of Canadians (e.g., the U.S., U.K., or anyone else)? Or was there a general move by the U.S. and/or other countries to establish this sort of screening?
To be clear, I am not jumping into conspiracy water (though I hear some find it warm and nourishing in an odd way). Rather I am wondering what policy and other interests fueled Canada’s approach.
SAN - March 16, 2007 at 4:42 pm
This approach has always existed (it exists in the US as well as far as I’m aware of). Just the information is much more available. I’m surprised at the denial since the CIC website talks about “deemed rehabilitation” if the offense took place more than 10 years ago. Although it looks like this is a “one offence” only clause and only for offences than carry a sentence of less than 10 years in Canada. So if the prosecutor piled on the charges in the 1975 case (which I understand to be pretty common tactic), you might be SOL unless you go through a formal rehabilitation process – expensive if you are looking to do just one trip.
I also understand that the formal pardon system in many states in the US is almost non-existent at the present, unlike in Canada where you can get your records sealed (taken out of the CPIC system) after a period of time (5 years after completion of the whole sentence – including probation – is a general rule of thumb). But a Canadian pardon isn’t like the US system – you are still a convicted criminal, and could be subject to firearm restrictions, etc….
SAN - March 16, 2007 at 4:57 pm
Just to clarify. An equivalent of a US style pardon does exist in Canada (at least the prospective type), but you rarely hear about them being used. They seem to be intended as “escape valves” when the system goes off the rails or for extreme hardship reasons. Although given the fact that the Governor General in Council (read the Prime Minister and top Cabinet) can hand out the “Royal Perogative of Mercy”, you could have them politicized. The other important fact is that most of your main criminal offenses are federal in Canada, rather than state. So the criminal system is national in character (although with large degrees of involvement from provincial and municipal police and court systems) and so are paroles and pardons.
funnythat - December 23, 2007 at 5:39 pm
the US renders ineligible vistors with arrest records how ludacris, these immigration measures are extreme.
Donna - September 4, 2009 at 12:26 am
why don’t you guys stop whining, I don’t want you here if you have a criminal past. Canada is too soft on it’s own and it is about time we keep the rest of the world’s criminals outa here!~!~!
What is really going on is restricting the freedom of movement, governments really don’t give as shit about a petty crime you committed 20 years ago, this nothing more than communism creeping up on us all, and restricting our freedom of movement is just one of the nasty surprises they have in store for us.
Wake up, you are already behind digital “bars” and the guards are your own politicians.
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