I was recently denied entry into Canada, based on the belief of the officer that I am "Inadmissible" because of "Serious Criminality".
My story: I was convicted of "Attempted Residential Burglary" in Washington State in 1991.
(1) A person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle.
(2) Residential burglary is a class B felony. In establishing sentencing guidelines and disposition standards, the sentencing guidelines commission and the juvenile disposition standards commission shall consider residential burglary as a more serious offense than second degree burglary.
My conviction was for Attempted Residential Burglary, which carries a maximum sentence of 5 years in prison, instead of the 10 year maximum sentence for Residential Burglary (a Class B Felony)
(1) A person is guilty of an attempt to commit a crime if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime.
(3) An attempt to commit a crime is a:
(c) Class C felony when the crime attempted is a class B felony;
This conviction is my only felony conviction, and so:
I have since (in 1999) had the conviction "Vacated":
Vacation of offender's record of conviction.
(1) Every offender who has been discharged under RCW 9.94A.637 may apply to the sentencing court for a vacation of the offender's record of conviction. If the court finds the offender meets the tests prescribed in subsection (2) of this section, the court may clear the record of conviction by: (a) Permitting the offender to withdraw the offender's plea of guilty and to enter a plea of not guilty; or (b) if the offender has been convicted after a plea of not guilty, by the court setting aside the verdict of guilty; and (c) by the court dismissing the information or indictment against the offender.
(3) Once the court vacates a record of conviction under subsection (1) of this section, the fact that the offender has been convicted of the offense shall not be included in the offender's criminal history for purposes of determining a sentence in any subsequent conviction, and the offender shall be released from all penalties and disabilities resulting from the offense. For all purposes, including responding to questions on employment applications, an offender whose conviction has been vacated may state that the offender has never been convicted of that crime. Nothing in this section affects or prevents the use of an offender's prior conviction in a later criminal prosecution.
So, I had the conviction "Vacated" and I also had the court record "sealed". (I have since determined that not even I, the original offender, cannot view the court record). I even had a separate order, restoring my right to possess and firearms. This seems to say that Washington/USA has allowed me to be forgiven to a great extent.
So, my questions:
1. Is it true that it does not matter (to the Canadian government) that I have had the conviction "Vacated" in the state of the conviction (Washington)? The process apparently allowed me to withdraw my "Guilty Plea" and enter a "not guilty plea". I am now allowed to say that I have not been convicted of that crime. However, the officer at the border seemed to indicate otherwise-I am not sure if he knew if the "Vacation" process in Washington changed the way that the Canadian government looked at the crime.
2. Does "Attempted Residential Burglary" actually equate to "S. 348(1) of the CCC", as the letter from the border officer indicates? I have been told to compare the two sets of laws (Washington and Canada). The definitions of Washington's "Residential Burglary" and Canada's "Break and Enter" seem to me to be similar. (I believe that both the official at the border and the official at the Canadian Consulate indicated that it is a good idea to verify that the charge equates or determine what it does equate to).
3. Is there a process of defining an "Attempted" crime in Canada? In other words, is there such a thing as an "Attempted Break and Enter (Residential)", and if so, is it a different class of crime and/or carry a different liability?
4. If this Attempted Break and Enter (Residential) exists, is this crime "punishable by a maximum term of ten years or more" ? (I do see that the "Break and Enter" is "liable to imprisonment for life" if it is "commited in relation to a dwelling-house").
5. If not, does this allow me to be "deemed rehabilitated"? (over 15 years have passed since my sentence was completed-I completed probation in 1993 and my right to vote, etc, were restored at this point).
Thank you Very Much.
1. A vacated charge is not recognized in Canada to start with.
2. Yes here is the quote from 348(2) the following section
" (2) For the purposes of proceedings under this section, evidence that an accused
(a) broke and entered a place or attempted
to break and enter a place is, in the absence of evidence to the contrary, proof that he broke and entered the place or attempted to do so, as the case may be, with intent to commit an indictable offence therein; or "
3. As the sentence could be life, you can not be deemed rehabilitated, as the maximum sentence has to be less than ten years.
4. So for you to enter Canada, you would have to apply for rehabilitation and as the crime is considered serious criminality so it would cost $1000 just to apply, take over a year, and no guarantee of success.