Non-Conviction Records at the US Border: An FAQ

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1 Non-Conviction Records at the US Border: An FAQ People with non-conviction police records, including police records that arose out of a mental health-related contact, may have difficulty travelling to the United States. For example, some individuals who were assisted by police for an actual or reported suicide attempt have been denied entry to the United States by US Customs and Border officials. This updated guide provides answers to key questions about how this occurs, what remedy individuals may have, and how recent policy developments are changing how some police treat these records. What type of information do Canadian police record and where is it stored? Canadian police services collect and retain a wide range of information about the people they come in contact with, including records of contact, allegations, withdrawn charges, acquittals and mental health apprehensions, just to name a few. For example, if a police officer assists a person needing mental health services, questions a suspect, arrests an individual or investigates a noise complaint, it would be normal for a record to be created. Police databases will also record when people are charged with an offence and the outcome of their criminal case. Much of this information will be entered into the local police databases, and sometimes the police will decide to enter it into national police databases as well. Canada s national police information databases are managed by the Canadian Police Information Centre (CPIC), which is a branch of the Royal Canadian Mounted Police. Not everything is uploaded to CPIC databases, and if something is placed in CPIC there is usually an expiry period after which the local police service can decide if they want to let the information be deleted, or renew the entry. 1

2 How do United States Customs and Border officials get my personal Information? The United States Department of Homeland Security and therefore US Customs and Border Protection (CBP) officials have access to the national Canadian Police Information Centre (CPIC) databases. CPIC allows for access of criminal records as well as non-conviction records, including cases under investigation, intelligence information, motor vehicle and driver information and Alzheimer Wandering Registry. CBP is authorized to access CPIC for law enforcement purposes, including securing and facilitating immigration, drug, trade, and travel laws and regulations. A Memorandum of Cooperation between the US and Canada does not permit CPIC information to be shared with unauthorized agencies or individuals without prior written consent from Canada. Why would I be denied entry to the US? In the United States section 212(a)(1)(A)(iii) of the Immigration and Nationality Act states that individuals with a history of mental illness may be ineligible for admission into the United States. For more information on exactly who might fall into this category see Certain types of criminal records may also be grounds to deny you entry, including a criminal record for crimes of moral turpitude (age 18 or older) and for possession of or trafficking in a controlled substance. For more information on entry to the United States and criminal records see the US Customs and Border Protection s website: 2

3 FAQ Can I prevent the US border officials from accessing my information? If the information that Canadian police recorded has not been uploaded to CPIC databases it will not be readily available to US border officials. Police services also now have the option to withhold at least some mental healthrelated entries in CPIC from United States users. If you are not sure whether or not you have a CPIC entry that can be accessed by US border officials you can try to contact your local police station s records manager for confirmation. They may suggest that you can file an access to information request with your local police service to see if you have any information in CPIC databases. If you do have a non-conviction entry in the CPIC databases there may be an expiry date or a request process for you to ask your local police service to remove the information. For more information on specific expiry dates, record expungement, or requesting the destruction of photographs and fingerprints you should contact your local police service s records management division. If you have already been denied entry to the United States it is likely that US authorities have their own record of that in their own database. Removing an entry from CPIC will not remove it from American databases. 3

4 What do I do if I have been denied entry or continue to have difficulty? If you have been denied entry to the United States you may be able to apply for a waiver of inadmissibility. There are different forms to fill depending on why you were denied entry and what type of entry you are requesting (immigrant or non immigrant). You may need to provide additional documentation, especially if you were denied entry on medical grounds. You can find out more information about this process on the Customs and Border Patrol website, or by contacting your nearest Port of Entry (contact information is online at Has the Toronto Police Service changed how they deal with suicide-related police records? In 2014 the Information and Privacy Commissioner of Ontario launched a legal case against the Toronto Police to try to get them to stop sharing a range of suicide-related police records. Since that time the Toronto Police has made changes to their policies. Based on these improvements the Commissioner decided to withdraw the case. Nam nec dui vel sapien semper sollicitudin. Curabitur dui justo, venenatis a, pharetra vitae, ultrices in, velit. Will I be impacted by the new Toronto Police Service s new policy? If you were assisted by the Toronto police for a suicide-related incident the new policy may prevent records of that interaction from being uploaded to CPIC and/or being shared with the United States. 4

5 What suicide-related records will the Toronto Police upload to CPIC? Only suicide-related records that fall into one of the following five scenarios will be uploaded to CPIC: 1. the suicide attempt involved the threat of serious violence or harm, or the actual use of serious violence or harm, directed at other individuals; 2. the suicide attempt could reasonably be considered to be an intentional provocation of lethal response by the police; 3. the individual involved had a history of serious violence or harm to others; 4. the suicide attempt occurred while the individual was in police custody; or 5. the individual is apprehended under Section 17 of the Ontario Mental Health Act and a Form 1 has been issued. What suicide-related records will the Toronto Police share with the United States? Only entries that fall into one of the first four categories will be released to the United States: 1. the suicide attempt involved the threat of serious violence or harm, or the actual use of serious violence or harm, directed at other individuals; 2. the suicide attempt could reasonably be considered to be an intentional provocation of lethal response by the police; 3. the individual involved had a history of serious violence or harm to others; or 4. the suicide attempt occurred while the individual was in police custody. What about suicide-related entries that were recorded before this policy came into effect? The policy has been applied retroactively. If you had a previous suicide-related call to the Toronto Police, and you do not fall into one of the above categories, your information should not be in CPIC or shared with the United States. 5

6 Is there any way to confirm whether the Toronto Police have uploaded a suicide related entry to CPIC? Yes. As a member of the public you have the right to ask for and receive written confirmation as to whether they currently have a suicide related entry in CPIC, and whether that information will be shared with the United States. For more information on the request process please see the Toronto Police Service s website, Will the suicide-related entries ever be removed from CPIC? All suicide-related entries will be removed after two years, unless there is a subsequent suicide-related attempt or threat that satisfies one of the five criteria. At that point the entry will be renewed for another two years. Individuals who would like the suicide-related entry to be removed before the two year expiry date have a right to apply to the Toronto Police Service for reconsideration. Reconsideration requests may be submitted along with any relevant information and will be considered by a three-member panel. The individual will be notified of the panel s decision in writing. If the panel refuses the removal request it will give written reasons. Does this mean that US border officials will no longer have access to Canadian mental health police records? Unfortunately, no. The Toronto Police Service s policy only covers suicide-related mental health entries. It is not clear how other mental health contacts that do not involve suicide attempts are being dealt with. In addition, if you were assisted or detained by a police service other than the Toronto Police different policies will apply to that record. 6

7 What are other police services doing to address this issue? We unfortunately do not have a full picture of how other police services choose to upload mental health related information to CPIC, or how frequently they are choosing to share this information with the United States. We know that some police services are planning on putting in place solutions that provide more protection than the Toronto Police Service s policy. If you have specific concerns you should contact the police service you interacted with to find out more about what their policies are. What work is being done to change this situation? The CCLA, along with many others, has been advocating for fundamental change in the way police record checks are conducted and used for several years. Our work has included a broad range of research, reports, litigation and education campaigns. We provided submissions to the Information and Privacy Commissioner of Ontario regarding sharing mental health-related police records with US officials and will continue to push for better privacy protections in this area. For more information on our work in this area please visit our website, About CCLA and this guide The is a national, non-profit, non-partisan, non-governmental organization dedicated to protecting and promoting the fundamental human rights and civil liberties of all persons in Canada. Since 1964, the CCLA has been at the forefront of protecting fundamental freedoms and democratic life in Canada. Throughout its history, the CCLA has advocated for evidence-based, rights-respecting policies and practices in the criminal justice sphere. For more information about CCLA please visit our website, Please note that this guide was prepared in July 2016 and contains general legal information. It is not intended to be used as legal advice for a specific legal problem. 7