Another way in which a record can affect life is in regard to travel. You may be denied a passport, at least for some years, because of a criminal record. It is almost impossible to enter the U.S. with any Canadian criminal record, or even criminal charges, because Canada shares all this information with U.S. authorities. Canadians have been prevented from entering the U.S. for as little as having used emergency mental health services.
What is more relevant to me is how Canadians returning to this country may be treated by our own border authorities. I know many people with records who have travelled internationally many times and never been stopped at our border. However, I have been stopped every time I have returned to Canada, even though my sentence expired quite a few years ago and there have been no further charges against me. I am, like most people with a record, “one and done,” never again being caught up in the criminal justice system. (We hear all the time about repeat criminals, but most people with a conviction never have another charge.)
Being stopped at the border when coming home may not seem like a big deal. So it takes you a little longer to get home. But it amounts to a ceremony of humiliation because I know I am only being stopped due to my record. The experience is worse if you are travelling with a family member, as I usually do, because that person — or people — also have to deal with your humiliation, and their own. (So often in our thinking about prisoners and people with criminal records, we entirely forget their families and friends, who also suffer from their experiences. They are victims, too — though they are never thought of in that category.)
Each experience crossing the border has been different, except that I am always stopped and sent to secondary inspection. The first time I came back to Canada from abroad I was held up for nearly three hours. The agent asked me a few questions and then asked if I had any encounters with the police. Of course, I knew they had my record there — was he thinking I would try to lie about it? He then took my laptop computer and my phone away into another office and left me sitting there for more than two hours. It felt a lot like being in prison — treated as guilty of something without ever being told what is wrong, what is happening or how long it might take. All those feelings of powerlessness and vulnerability return.
All kinds of possibilities ran through my head; once you have been arrested, you are always afraid it could happen again. There does not have to be a good reason to arrest someone either, as evidenced by the number of people arrested and released, sometimes hours later, with no charges. Or by the 40 per cent of criminal charges that do not lead to a conviction, the vast majority of which are withdrawn or stayed by the Crown because they know, and probably have known all along, that they had no reasonable prospect of a conviction. Hundreds of thousands of people are arrested each year in Canada without ever being convicted. And once you are on the radar of the police, the chances go up because they are suspicious of you.
In the case of my first border stop, after my long and hugely anxious time waiting, the CBSA agent returned to his station, called my name and told me I could go. No explanation was given, but I was so relieved that I was happy to go. That was, I have to say, the worst experience, in part because it was my first and I had no idea what to expect.
On my next return to Canada, a few months later, I was again stopped. This time I was told to unlock my phone and the agent took that away. And again, after more than an hour he came back to me, gave me my phone back, searched my suitcase and let me go.
Each time has been different. I have been delayed by anything from 30 minutes to three hours. Sometimes the agents are polite and almost apologetic about stopping me. Other times they seem to take pleasure in making me tell them about my criminal convictions. Sometimes my suitcase is searched, sometimes not. The searches can be very thorough or quite perfunctory. Once the agent asked me details of where I had been, went away for 20 minutes, came back and told me that was fine, I could go.
The last couple of times there has been no interest in my devices and my wait to be released has been shorter. Perhaps the agent can see the long list of stops leading to nothing. However, I now take precautions about what I carry. Since that first trip I have never taken my laptop computer out of the country because mine, like many people’s, has so many files on it (for example, thousands of family pictures and years of text files from my work that I store there) so any kind of search is going to take a lot of time. I know some people who buy a burner phone for international travel. I do not do that, but I generally do go through my phone before I leave and remove lots of pictures and other things — not because they are illegal or even suspicious but just to make it easier and quicker to search my phone if that should happen again.
Sometimes I want to ask the agent why I am being stopped over a criminal offence that happened years ago, and after so many times when I have been stopped but nothing wrong ever found. Border agents have a lot of authority as to how they respond to individuals — as shown by the great variation in what happens to me each time. I know that asking questions cannot help in any way, and an antagonized agent could cause serious problems. So I keep my mouth shut. When you have a record, you get used to staying silent in the face of treatment that seems obviously unfair.
David Dorson is the pen name of someone who went through arrest, case disposition, imprisonment and parole in Ontario a few years ago. Law360 Canada has granted him anonymity because he offers a unique perspective on a subject that matters deeply to many readers, and revealing the author’s identity would make re-establishment in the community after serving his sentence much more difficult than it already is.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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