Border barriers

A Winnipeg lawyer is warning travellers to have their court documents handy if they plan to enter the U.S., after border agents turned away two former clients due to historical charges that were later dropped.

Both men were accused of crimes, but not convicted — leaving them with no criminal record. Regardless, border agents asked them to produce paperwork confirming the outcome of the court cases, Michael Dyck said.

“It was really surprising to me that a situation where charges were dropped — where there actually is no criminal record one way or the other — that they are still having an issue with that, or they are putting the onus on them to prove that,” the defence lawyer said.

Dyck, who has been practising since 2012, said he has never encountered such a situation in the past. He thought it might be a one-off when his first client contacted him for help while being held at the border a few months ago, but then it happened to a second client last weekend.

“It all seemed strange, and then my next thought was, ‘I bet people don’t know about this,’” Dyck said.

“It seemed like something that the public might want to be aware of because, if people know about it, they may choose not to travel to the States, or they may get this court document in advance.”

“If people know about it, they may choose not to travel to the States, or they may get this court document in advance.”

One of Dyck’s clients, who agreed to speak with the Free Press anonymously, said he attempted to cross into the U.S. via the Pembina land border over the summer, but was held for four hours before agents told him he could not enter.

Around eight years ago, the man was charged with theft under $5,000 stemming from a dispute with a former employer. Manitoba courts reviewed the case and issued a stay of proceedings.

He described being frustrated and embarrassed after being stopped at the border. After calling his lawyer, he turned around and drove to Steinbach, where he was able to access copies of his court records.

When he returned to the border with the documents the following week, he was held again for about three hours before agents let him through, he said.

“It was really hard to try to keep my calm,” he said. “If you have any documentation proving that you’re free and innocent, bring everything with you.”

The man said he previously travelled to the U.S. about five years ago without issue.

“If you have any documentation proving that you’re free and innocent, bring everything with you.”

Another of Dyck’s clients was stopped at the Toronto Pearson International Airport while attempting to fly to Florida last weekend.

The Free Press did not speak with the man, but Dyck said he received a conditional discharge connected to a simple assault charge.

In Canada, a judge may grant a conditional discharge as an alternative to a criminal conviction when a person is found guilty. In such cases, the discharge becomes absolute three years after the person satisfies probation conditions, Dyck said.

“In his case, I think it’s been five or six years at least, and so … he can honestly say he doesn’t have a criminal record.”

That man also travelled to the U.S. about five years ago without issue, Dyck said.

The lawyer speculated the recent strengthening of U.S. border security, spearheaded by President Donald Trump, might have contributed to his clients being turned away.

“If I’ve had two clients who have had this issue in the last six months, I imagine that’s just the tip of the iceberg … so, the other concerning thing to me is that this might be happening more than we think, or know,” Dyck said.

“I’m not saying this is some human rights issue or violation. It’s their country, they can do what they want. But the counter side of that is, if they are going to be scrutinizing people this much, maybe I don’t want to go to that country and spend my tourism dollars there.”

“It’s their country, they can do what they want. But… if they are going to be scrutinizing people this much, maybe I don’t want to go to that country.”

Chris Gamby, spokesman for the Criminal Defence Lawyers Association of Manitoba, said it is difficult to determine whether the incidents involving Dyck’s clients are isolated, or part of a larger trend.

“We can’t control what happens at the border. They look at admissibility a little bit differently than we do. Things that might make someone inadmissible to Canada may not even be considered in the U.S. Likewise, things that wouldn’t be a problem here might be a big problem there,” Gamby said.

The U.S. reserves the right to deny travellers who have committed “crimes of moral turpitude,” Gamby said.

According to U.S. Citizenship and Immigration Services, the term is not defined under U.S. federal law, but courts there describe it as “an act that is inherently base, vile or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.”

Gamby said it is sometimes unclear what types of crimes might be qualified in this way.

For example, simple assault may not be considered a crime of moral turpitude, but charges involving fraud or possession of certain illegal substances could be, he said.

“They take the position, I think, that they can deny people at the border for whatever purpose. I think if individuals are looking to travel to the U.S. and they have questions, they may want to contact an immigration lawyer.”

“I think if individuals are looking to travel to the U.S. and they have questions, they may want to contact an immigration lawyer.”

A spokesperson for U.S. Customs and Border Protection said anybody attempting to enter the country is subject to examination and bears the burden of proof to establish they are eligible for admission.

Border agents ultimately decide whether a person can enter the country based on the totality of information available to them. Even if charges were dismissed, arrest records may still show up in databases. So, travellers with prior convictions or charges should be prepared to provide official documentation around their cases.

U.S. law includes more than 60 grounds of inadmissibility divided into several major categories, including health-related grounds, criminality, security reasons and others.

The Canada Border Services Agency and Global Affairs Canada — which is responsible for providing information and advice for Canadians travelling internationally — declined to comment.

tyler.searle@freepress.mb.ca