providing criminal history evidence for Canadian work permit

August 8, 2013 2:08 PM

How does someone get proof that a criminal record was expunged in 1985 in order to be allowed across the Canadian border?

My spouse and I have visited Canada before. He set out to drive to Toronto yesterday to film an event, and was denied entry at the border this time based on the criminal history in the work permit application for the event: "1985 friends and I found an open door at our high school, entered, ate some left over donuts, arrested, paid $400 fine."

He was either 19 or 20 at the time and living in San Jose. He's 47 now and fuzzily remembers that the record was to be expunged or sealed or something. How would he get proof of that so that he can present it to the border guards? And is there any way to get this before Friday evening?

I dug around on the Santa Clara County Court site and it doesn't look good for trying to dig up something from before 2004. "How do I get a copy of my local criminal history?" gives the address of the Sheriff and a phone number. I passed it along to him in case they can help via fax or something.

I don't know if an FBI record would help since it would just show an absence of what he reported. He could try to get one, but they don't offer an expedited process. The do say that FBI approved channelers might.

Does anyone have any ideas of things to try that would work today or tomorrow?

posted by bleary to Law & Government (6 answers total)

I do expungement work (but not in California) and, around here, the best you could do for proof that an arrest had been expunged is a copy of the order granting the petition for expungement. Nothing around here is automatically sealed or expunged, but even if it were, there might be an order in the court file which stated something to the effect of "upon fulfillment of X conditions, record to be sealed".

I would start with requesting a copy of the original case file, but I don't know that you can get a record that old quickly. For a 30 year old petty arrest, I would not bother with the FBI.

You can ask the relevant county for a Record of Arrest and Prosecution sheet (or whatever the local county calls it). If a record has been expunged or sealed, it won't show up, but you will have a document that proves there is no active record of arrest or prosecution for your spouse. Usually, those can be obtained the same day for a $5-15 dollar fee. Bring both cash and a checkbook--many police/court agencies are still cash only (sometimes check only).
posted by crush-onastick at 2:25 PM on August 8, 2013

This appears to be how to get a copy of your California criminal record. (One of the Canadian consulates in the U.S. used to provide a list of how to get them from each state, but it looks like they've taken that page off their web site.) At least if you're looking at that, you might be able to see what information CBSA has access to. The FBI search and the name search in the Santa Clara County courts might also help.

The turnaround times on these are a few days at best and a couple of months at worst, so the likelihood that this will get resolved in the next 24 hours is essentially zero.
posted by one more dead town's last parade at 2:57 PM on August 8, 2013

Here is what appears to be the manual used by Canadian Immigration officers when deciding criminal inadmissibility. In particular, note that there is a big difference, as far as Canada is concerned, between "sealed" and "expunged":

Sealed record: A sealed record is, for the purposes of IRPA, a criminal record. The fact that a sealed record exists does not in and of itself constitute inadmissibility. An officer should determine the circumstances of the sealed record by questioning the person concerned.

In the case of a sealed record, an officer should ask whether the record was the result of a conviction as a minor. If the person was a minor, then it would most likley equate to an offence under the Young Offenders Act - unless the case would have been eligible for transfer to an adult court. [ed.: this is important because juvenile offenses are not generally grounds for inadmissibility; but your spouse was over 18 at the time.]

...

Expunged: Not a conviction. Expunged means to strike out; obliterate; mark for deletion; to efface completely; deemed to have never occurred.

posted by Johnny Assay at 4:59 PM on August 8, 2013

Johnny Assay is right, but in any event both sealed and expunged records appear when certain law enforcement agencies make requests of criminal databases, whereas expunged records do not appear when non law enforcement agencies make requests. So it normally makes a difference whether you are dealing with a sealed or expunged record, but not when you're dealing with Canadian Immigration officials.

Although the terms get used in conjunction often (like I did) or even interchangeably (which is incorrect), they have different legal meanings and different legal effects.
posted by crush-onastick at 5:43 PM on August 8, 2013

I've been using sealed and expunged interchangeably, and thanks for the clarification. I'm not actually certain which term applies here.

Spouse is going to be back home late tonight. He didn't get together enough information for immigrations to allow him across the border.

:(
posted by bleary at 7:50 PM on August 8, 2013

You will want to contact the Canadian consulate where you are. There is a process for claiming rehabilitation / or applying to get in anyway but I doubt it will happen in the time frame you need it.

http://en.wikipedia.org/wiki/American_entry_into_Canada_by_land
posted by srboisvert at 6:24 AM on August 9, 2013