Can you travel outside of Canada with pending criminal charges (or cross the U.S. border)?

Those with pending criminal charges are permitted to leave Canada provided that they do not breach any of their release conditions. The release conditions are normally listed on the Form 9, 10 or 11 charging paperwork the accused received from the police or the bail court. While the accused is legally required to attend for fingerprints and court (or have their lawyer do so on their behalf), most people do not have restrictions preventing them from leaving the country.

This does not mean other countries, such as the USA, will allow entry with charges pending. Canada shares its federal police database with the United States and some other countries like the U.K. Travellers with pending Canadian criminal charges may be denied entry to the U.S. because their case is still ongoing. This is especially true for those accused of moral turpitude offences that carry maximum potential sentences of more than one year in jail (theft under $5000, sex offences, etc.).

Other countries letting you in or not aside, the first step in determining whether or not you can leave Canada with pending charges is to examine your release paperwork to confirm what your conditions are. The most common forms of new charge release paperwork are:

Appearance Notice (Form 9)

This document will either be on a full size white sheet of paper, or a small carbon copy style blue/green form. It will contain only a fingerprinting/mugshot date and court date (no other conditions). The Form 9 itself therefore does not legally prevent you from leaving Canada.

Undertaking (Form 10)

Those who were released from the police station or back of the police car may have received a Form 10 Undertaking. This paperwork may contain a clause that states they must “remain in Canada”, “remain in the province of Ontario”, or have other conditions limiting where they can and cannot go. If you have an Undertaking, you must ensure that there is nothing stating you cannot leave else you would require a variation.

Release Order (Form 11)

If the accused is held for bail and is released (possibly with the consent of the Crown), they will have a Form 11 Release Order with conditions similar to an Undertaking. This may include conditions that prevent the accused from leaving the province or other clauses preventing travel. Some may also be required to live with their surety or comply with clauses ensuring the surety can supervise their release. Leaving the country would likely interfere with the surety’s ability to supervise the accused's release and thus may not be possible in some cases.

Going back home to India or China with charges pending is not unusual

Many of our clients will return to their home country (India, China, etc.) while the charges are pending if they are legally permitted to do so. Their personal attendance in court is often unnecessary. In Ontario, it is normal for counsel to appear in court without their client being physically present for many court appearance types. Counsel only appearances are routine and do not have a negative impact on their case.

Will U.S. Customs (CBP) let someone cross the border with pending Canadian criminal charges?

Unless the person is a U.S. citizen they may be denied entry because of pending criminal charges in Canada. This is true for virtually all offences including theft under $5000, domestic assault, impaired driving, sex crimes, etc. The reason for this is because the vast majority of crimes in Canada are hybrid Crown elect indictable offences which carry a maximum possible sentence of over 1 year in jail at the time they were first laid.

U.S. immigration law (INA 212, 8 USC 1182) states that if the maximum possible sentence is over 1 year in jail and the person is convicted of or admits to the offence they are inadmissible.

If pending charges are discovered at the border, U.S. Customs will next determine whether the applicant traveller:

1. was convicted of or admits to a moral turpitude offence,


2. whether the maximum possible sentence is more than 1 year in jail (yes if hybrid or indictable), and/or


3. whether they were sentenced to 6 months or more in jail if the maximum sentence is less than 1 year.

If the determination of factor #1 and either #2 or #3 are positive, U.S. Customs will normally deem the traveller inadmissible and offer them the opportunity to withdraw their application to enter the United States (turn them around). They are then fingerprinted, photographed, red flagged in the CBP computer system, and sent back to Canada with instructions to come back after their case is over and try again.

While the refused traveller is normally told to wait until their case is completed and return with the court paperwork to prove what happened, not everyone gets this option. CBP may also ban the traveller from future entry and require them to obtain a U.S. travel waiver before returning to try again. Requiring a waiver is the worst case scenario that an accused should try to avoid if possible.

Will U.S. Customs see that I have a new charge pending if it has just recently been laid by the police?

When new charges are laid the police officer in charge of the case enters the data of the arrestee into their local database which is then uploaded to the federal RCMP CPIC database. CPIC is fully accessible to U.S. Customs. All the CBP officer has to do is query the name and date of birth of the traveller in the system to pull up their information. The traveller is then questioned and their answers will be recorded and compared to the information found in the system.

For most charges, it won’t just “pop up” when your passport is swiped at the border unless there is a specific BOLO or warrant alert attached to your name/charges in the system. This is normally reserved for those accused of violent crimes and those the police are actively searching for. Most intended border crossers have already been identified by the police and are simply awaiting their court date and case disposition.

U.S. Customs may not see the charges unless they specifically query (search for) the person in the system. CPIC searches and other queries are normally only conducted in circumstances where the traveller is sent to secondary for further inspection, or is applying for a TN, I-94, or other travel document. Those without Canadian passports may be at a higher chance of having customs discover the charges when they go through the process of obtaining the I-94.

If U.S. Customs sees I have charges pending will they still let me cross the border?

If you are not a U.S. citizen they usually will not let you cross with a pending moral turpitude charge offence if it is discovered. Most CBP officers will want to ensure that the allegation does not result in you being inadmissible before granting you entry, which requires you to go back to Canada and complete your case first.

Decisions to allow entry despite pending charges are made on a case-by-case basis however and each officer may view the allegations against you differently. This can sometimes work in your favour (or not). Some non U.S. citizens are still allowed to cross with charges pending because CBP officers have a lot of discretion to decide. Those accused are also presumed innocent in the U.S. and some border guards may be less willing to hold unproven allegations against you than others. The behaviour and information provided by the applicant traveller will influence how CBP uses their discretion in determining admissibility.

For some forms of common charges such as shoplifting, domestic assault, and impaired driving the experience at the border can vary greatly depending on which officer you randomly happen to deal with. These are all hybrid offences that can be prosecuted as the equivalent of either a misdemeanor or a felony in the U.S. Each CBP officer views hybrid offences differently. Some officers may let you cross despite them while others will not.

For those facing pending charges, avoiding being denied entry and red flagged by U.S. Customs to begin with is paramount.

A lot of people get denied at the U.S. border for pending charges are confused because they were wrongly told in Canada that their offence is considered a minor “summary conviction offence” (misdemeanor equivalent) and won’t be a problem for U.S. Customs when in reality they were charged with a hybrid (Crown elect) indictable offence, not true summary one.

If these were true “summary conviction” offences the police would not have a right to demand the accused’s fingerprints/mugshot. The maximum possible sentence for hybrid offences in Canada is always more than the 1 year jail INA exception. If you have been charged, check to see if the offence is summary or hybrid. Most common offences like theft under $5000, mischief under $5000, simple assault, dui, etc. are hybrid (not summary).

We ensure that all of our clients are properly informed as to what steps should be taken up front to reduce the likelihood of encountering problems (and being red flagged by customs) at the border. If you currently have criminal charges pending and do not already have a lawyer please give us a call today for assistance.

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You don't have to jeopardize your future or waste thousands of dollars on excessive legal fees. We provide effective and affordable lawyer representation for those charged with criminal offences throughout Ontario, Canada.

Have a skilled criminal lawyer who focuses on criminal law protect you and your future from the stigma and consequences of a criminal record and conviction.

Are you a lawyer? If you are defending a criminal case and are looking for expert advice regarding possible defences, case strategies, and information release management call us at: 647-228-5969.

Please note: We do not accept legal aid certificate cases. All clients are handled on a private retainer only.

*2024 Results: the percentage of 99% of clients avoiding a criminal record (conviction) stated on this page is based solely on Lawyer Mark Zinck's personal representation of approximately 2000 criminal defence case clients as of the year 2024. Past results are not necessarily an indication of future results.

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