Anyone who has a prohibition order under section 109 of the Criminal Code of Canada (CCC) is most likely be inadmissible to the United States of America.
The United States has access to all ongoing or lifetime prohibition orders even after the crime that resulted in those orders has been pardoned. A pardon / record suspenion will not remove or eliminate the effects of section 109 prohibition order made under the Criminal Code, National Defence Act, or the International Transfer of Offenders Act.
In the event a pardon / record suspension is awarded, a prohibition order will remain in effect. To have a prohibition order removed, an application can be submitted to the Parole Board of Canada’s Clemency Program, but this is rarely successful.
The United States will not have access to pardoned convictions only if they were not aware of these convictions before pardoned. If the United States were not aware of the convictions before a pardoned was awarded, they will only be able to see the mandatory prohibition orders. However, the only way to have a prohibition order would be to have had a criminal record, so the United States will associate that to a past criminal record and deny the individual entry.
Once denied entry to the United States, you must apply for a United States Entry Waiver. You will require this permission for the rest of your life if you wish to keep travelling across the border. By completing this application, you will need to disclose all criminal history regardless of whether a pardon / record suspension has already been granted.
Any individual that has a Possession for the Purpose of Trafficking conviction, will automatically have a mandatory prohibition order under section 109.
A Section 109 mandatory prohibition order will remain in effect for life, therefore it is important to be aware of any limitations this will cause regarding travel, work, etc.
Please refer to section 109 of the Criminal Code of Canada below:
Duration of prohibition order — first offence
(2) An order made under subsection (1) shall, in the case of a first conviction for or discharge from the offence to which the order relates, prohibit the person from possessing
- (a)any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, and explosive substance during the period that
- (i)begins on the day on which the order is made, and
- (ii)ends not earlier than ten years after the person’s release from imprisonment after conviction for the offence or, if the person is not then imprisoned or subject to imprisonment, after the person’s conviction for or discharge from the offence; and
- (b)any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life.
Duration of prohibition order — subsequent offences
- (3) An order made under subsection (1) shall, in any case other than a case described in subsection (2), prohibit the person from possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance for life.
If you require assistance crossing the United States Border because of a prohibition order, or any other reason for being inadmissible, please contact the National Pardon Centre and speak with a counsellor.
Preparing a US entry waiver application is complex and time consuming, often taking up to 12 months to complete. So it is essential to begin the process well in advance of any travel dates.