One very frequent concern for people who have been investigated, arrested or charged with a criminal offence is whether they are allowed to travel outside of the province or country. This blog provides essential information regarding travel during a criminal investigation and charge.
Understanding the Legal Documents
To answer this question, it is important to understand the various forms of release the person may be subject to. Individuals subject to a criminal investigation will receive one of the following legal documents.
Undertaking (Form 10)
An Undertaking is a release document issued by the police to the subject of a criminal complaint. It outlines the alleged offence, the court appearance date, and the conditions the person must follow.
An Undertaking is legally binding even if the recipient refuses to sign it.
Release Order (Form 11)
A Release Order is a court order issued to an accused person by a judge following a bail hearing. It also contains a description of the charge and the conditions the accused must follow.
Appearance Notice (Form 9)
An Appearance Notice is issued to an individual alleged to have committed a criminal offence. It contains a description of the offence and the date and time they must attend court. Unlike an Undertaking and a Release Order, an Appearance Notice does not impose any conditions on the person other than the requirement to attend court at the time specified on the Notice.
Summons (Form 6)
A Summons is a court order issued in the mail to an individual charged with an offence. It provides a description of the charge and a court date. Like an Appearance Notice, a Summons does not impose any conditions on the person other than the requirement to attend court at the time specified on the Summons. A Summons and an Appearance Notice have the same legal effect of compelling the person to attend court when required to do so.
Travel Restricted by Conditions
Travel may be restricted by conditions outlined in an Undertaking or a Release Order. A person subject to these orders may be required to stay in British Columbia or deposit their passports and other travel documents with the police.
Examples of conditions that restrict travel include:
- You must not leave British Columbia.
- You must surrender all travel documents, including any passport, Nexus card, travel visa or enhanced driver’s licence to a peace officer at [police station] by [time and date], and thereafter you must not obtain any further travel documents.
A person who is being investigated for or charged with an offence but has not received an Undertaking or a Release Order is not subject to any travel restrictions. It is not an offence to leave the province or the country when being investigated for a criminal offence unless the person is subject to an Undertaking or a Release Order and the Undertaking or Release Order includes an express condition restricting travel. If restrictive travel conditions are not included on the Undertaking or Release Order, then the person is free to leave the province and the country and travel as they wish. Even if allowed to travel, the person must still attend court when required.
The conditions of an Undertaking or Release Order can be in place for months and often for years. It is very important to read and understand the conditions of release. Failure to understand the conditions often results in a person believing they were not allowed to travel when in fact they were, or worse, believing they were allowed to travel when they were not. It is a criminal offence to fail to comply with the conditions of an Undertaking and Release Order.
Individuals may apply to vary the conditions on an Undertaking or Release Order, for example, to permit travel; however, it is up to a judge to decide whether to grant the requested variation. Consultation with experienced criminal counsel is strongly advised to navigate this legal process effectively.
Travel Not Restricted by Conditions
If someone who is the subject of a criminal investigation in Canada is not restricted from travelling, this does not mean they will be admitted into a foreign state. People who are being investigated for an offence may experience challenges when attempting to enter a foreign jurisdiction (including the U.S.), even if they are not subject to conditions restricting their travel in Canada. For example, the United States Customs and Border Protection has access to the Canadian Police Information Centre (CPIC) database, which contains information about ongoing police investigations and charges in Canada. This includes information about people who are being investigated but have not been charged and people who have been charged but not convicted (i.e. not found guilty).
U.S. Customs agents have the discretion to refuse entry to people who are being investigated but have not been charged and to people who have been charged but not found guilty. An outstanding investigation or charge is one factor that may lead to denial at the United States border, even though the individual is not prohibited from travelling under Canadian law.
Conclusion
Travelling during an outstanding criminal investigation can be stressful and confusing. A criminal investigation may also impact an individual’s ability to obtain or renew immigration documents, including passports, permanent residency cards, work permits, and visitor record extensions. The team of experienced criminal defence lawyers at Filkow Law are retained to provide quality advice regarding all aspects of a criminal investigation, including travel.
