Chelsea Manning is a former U.S. Army intelligence analyst. She leaked thousands of military and diplomatic documents to WikiLeaks about civilian deaths and the abuse of detainees by the Iraqi forces under American supervision during the Iraq War.
She was arrested back in 2010 when she was known as Bradley Manning. In 2013 she was convicted of six breaches of the Espionage Act, though she was acquitted of the charge of Aiding the Enemy.
For her crimes, Manning was sentenced to thirty-five years in prison. She served seven years before (now former) President Obama used his powers of presidential clemency to commute her sentence in 2016. Despite the commutation, when Chelsea Manning attempted to visit Canada this past Monday, she was denied entry.
At first glance, denying Manning entry into Canada feels absurd. Yes, she was convicted of a crime, but her sentenced was commuted.
That’s like a pardon, right? She should be allowed into Canada, right?
Unfortunately, it’s a lot more complicated than that.
The issue of whether or not convicted criminals are admissible to Canada is where the subjects of criminal and immigration law cross. For the purposes of this article, we’ll focus primarily on convicted criminals from the United States who attempt to enter Canada.
Fortunately, Chelsea Manning herself generously posted on Twitter a copy of the letter she was given upon being denied entry by Canadian border agents:
— Chelsea E. Manning (@xychelsea) September 25, 2017
The letter says that she was denied because of paragraph 36(1)(b) of the Immigration and Refugee Protection Act, a federal law that defines admissibility and inadmissibility to Canada.
Article 36 of the law refers specifically to inadmissibility based on serious criminality. Some of the criteria under which someone would be considered inadmissible to Canada on grounds of serious criminality include:
- Being convicted in Canada of a crime with a maximum jail term of ten years or
- Being convicted of a crime outside of Canada that, if committed in Canada, would have resulted in a custodial sentence of at least ten years or
- Being convicted of an indictable offense in Canada or
- Being convicted of at least two indictable offenses not arising out of a single occurrence or
- Being convicted of an offense that would have been considered an indictable one in Canada
Chelsea Manning was denied entry into Canada because as per the letter she received, her conviction made her inadmissible.
The crime she was convicted of – leaking classified government information under the American Espionage Act – has a Canadian equivalent: treason. Under the Canadian Criminal Code, the maximum penalty for treason is life imprisonment. As the rules state, if the crime you were convicted of abroad would carry a sentence of ten or more years in jail if you’d committed it in Canada, you’re inadmissible for entry into the country.
Canada and the United States generally do not recognize each other’s pardons.
An American pardon does not mean a conviction will be invisible to border agents. Though the information they find will likely indicate the pardon and might tell border agents that the person has rehabilitated themselves, it’s no guarantee they’ll get into Canada.
Chelsea Manning did not receive a pardon from Barack Obama, her sentence was commuted.
A pardon would mean her crime was forgiven and it would be as if she’d never committed it.
According to the US Department of Justice which handles requests for presidential clemency, a commutation of a sentence does not change the fact that a person was convicted of a crime, nor does it imply innocence, or remove any barriers a person would have as a result of their conviction.
All a commutation does is reduce the person’s sentence, either partially or completely. In the case of Chelsea Manning, she served seven years in prison instead of the thirty-five prescribed by her sentence.
Manning may be out of jail, but the other consequences of her criminal conviction remain.
That said, Chelsea Manning has promised to appeal the decision of Citizenship and Immigration Canada, but she will have a tough road ahead. Her crime is considered “serious criminality” under Canadian law, and according to the Immigration and Refugee Protection Act, there is no way to appeal a decision of inadmissibility on grounds of serious criminality.
According to Buzzfeed, a source close to Manning said she would appeal on the grounds that there is really no equivalence to the US Espionage Act in Canadian Law or the law of other countries besides the US.
There is, however, a way to pre-empt a potential refusal at the Canadian border for criminality reasons.
Citizenship and Immigration Canada has a process called “Criminal Rehabilitation” that allows foreign nationals with criminal convictions to apply for individual criminal rehabilitation allowing them to enter Canada. It should be noted, however, that even if Manning had filled out such an application, she would not currently be approved due to its selection criteria, which requires that at least five years have passed since the completion of her sentence.
Travel of any kind can be a nuisance, but it is doubly so if you come a long way only to realize you’re being barred from your destination due to a past criminal conviction. Annoying as they are, some argue that rules regarding criminality and admissibility to Canada are essential to national security. Others, like Canadian free speech attorney Jameel Jaffer, who spoke with The Intercept on the subject, feel there is no way Manning could possibly pose a threat to Canadian security.
Chelsea Manning is a hero to some and a traitor to others. The issue with her coming to Canada seemed not to do with her crimes, but with the fact that she was convicted. She may be able to come Canada some day, but for now it looks like she’ll have to wait five years.