- The legal term for a pardon is a “record suspension”
The term Record Suspension is now used instead of “pardon”. In 2012, the Federal government passed the Safe Streets and Communities Act, which removed the definition of “pardon” and added “record suspension”. The effect of a pardon and a record suspension are essentially the same. The federal Criminal Records Act outlines the law of record suspensions.
- A record suspension/pardon does not erase your criminal record
A record suspension does not erase your criminal record. Once a record suspension is granted, police will not be provided with any information of the criminal record or the fact that it existed. When someone is granted a record suspension their criminal record is kept separate from other criminal records. Further, the record and the fact that it exists, cannot be disclosed.
A record suspension is evidence of the fact that the Parole Board of Canada is satisfied that the applicant is of good conduct and the conviction should no longer reflect adversely on the applicant’s character.
You do not require a record suspension to apply for a Canadian Passport. A passport is a travel document that verifies an individual’s identity and nationality. A passport does not guarantee you entry into a foreign country because different countries have different requirements for entry. Also, depending on the purpose, length and location of your travel, you may be required to apply for a travel visa from the destination country, which could be denied on the basis of your criminal record.
A record suspension does not automatically guarantee that you will be allowed entry to foreign countries. The rules for entering a country depend on that country’s laws. Each country has different criteria for entry and visa permits. The PBC suggests that you contact the authorities for any country you wish to travel to.
Travel to the United States
The United States and Canada have a close relationship and share criminal conviction information. If you have traveled to the US before getting a record suspension, then the US authorities may have entered your criminal information into their database. You may be detained by the US authorities if you try to re-enter the US, even if you’ve been granted a record suspension. You must apply for a US Entry Waiver to travel to the US after being granted a record suspension.
- There are time period requirements when applying for a record suspension
First, you must have completed all of your sentences including fines, imprisonment, conditional sentences (including parole), probation orders, costs, restitution and compensation charges.
You must wait:
- five years for a summary conviction; and
- ten years for an indictable conviction.
As explained below, your criminal record may be automatically purged from the national criminal record database if you received a conditional sentence (see # 5 below).
- Some offences are ineligible for a record suspension
First, Schedule 1 of the Criminal Records Act lists convictions that are ineligible for a record suspension. These offences relate to offences involving a child. Examples include: sexual assault, gross indecency ad sexual exploitation.
Second, the law excludes individuals that have a certain number of criminal convictions. Individuals with more than three offences prosecuted by indictment, each with a prison sentence of two years or more, are not eligible for a record suspension.
- You may not have a criminal record if you received a conditional or absolute discharge
Discharges occur where an individual is found guilty of an offence but not convicted. An absolute discharge occurs where the Judge does not order any punishment. A conditional discharge occurs where the Judge orders a punishment (often probation, community service or fine).
The criminal record is automatically purged from the criminal record database. A criminal record is created when an individual receives a discharge. However, no record of an absolute discharge may be disclosed after one year from the discharge date. As for conditional discharges, the record cannot be disclosed after three years from the discharge date. The records are automatically purged from CPIC when the time period is met.
- You apply to the Parole Board of Canada for a record suspension
The Parole Board of Canada (PBC) is the only federal agency responsible for administering record suspensions. The PBC has the authority to order, refuse and revoke record suspensions.
PBC has an application with a step-by-step guide for applying for a record suspension. As of July 2017, the cost of applying for a record suspension is $631 (CDN). This cost does not guarantee that you will be granted a record suspension. The PBC has discretion to refuse your application based on the information you provide.
- Record suspensions are approved on a case-by-case basis
First, the PBC considers whether the applicant has been of good conduct and has not been convicted of an offence during the periods mentioned in #3. Once the applicant meets this criteria, the applicant has the onus of satisfying the PBC that “the record suspension provide a measurable benefit to the applicant, would sustain his or her rehabilitation in society as a law-abiding citizen and would not bring the administration of justice into disrepute.” The Record Suspension Application contains a “Measurable Benefit/Sustained Rehabilitation Form” to address this requirement.
The PBC must consider whether granting a record suspension would bring the administration of justice into disrepute. Factors the PBC considers when determining this include:
- The nature, gravity and duration of the offence;
- The circumstances surround the commission of the offence;
- Information relating to the applicant’s criminal history; and
- Other factors in the Criminal Records Act
- Where your criminal record is stored depends on the type of conviction
Approximately 10% of Canadian adults have a criminal record. Generally, criminal records are disposed of when an individual turns 80 and there has been no criminal activity for 10 years. A criminal record contains an individual’s criminal charges, convictions and discharges. Fingerprint information is included if the individual was charged or convicted.
Criminal records are either stored in the Canadian Police Information Centre (CPIC) computerized database or local police records depending on the type of conviction.
All offences under the Criminal Code are classified as either indictable, hybrid or offences punishable on summary conviction. The type of conviction is stated on an individual’s criminal record.
Indictable and hybrid offences
Indictable offences are more serious than summary offences and include treasons and felonies. Generally, the accused elects whether the trial is heard by judge and jury or judge alone. Indictable offences have maximum terms of imprisonment. A hybrid offence is one where the Crown chooses to proceed either by indictment or summary conviction.
Criminal records relating to hybrid or indictable convictions are stored in the CPIC, a system operated by the Canadian Police Information (CPI) Centre on behalf of Canadian law enforcement. The RCMP manages CPIC. Police across Canada have access to CPIC. A criminal record is entered into CPIC once an individual is convicted of an offence.
CPIC is connected to the United States National Crime Information Centre through the Automated Canadian United Sates Police Information Exchange System. Refer to #2 to see how this may affect travel to the US.
Summary offences are generally less serious than indictable offences. Summary offences are heard before a Provincial Court Judge or a Justice of the Peace. Section 787(1) of the Criminal Code specifies the maximum punishment for summary convictions:
Unless otherwise provided by law, everyone who is convicted of an offence punishable on summary conviction is liable to a fine of not more than five thousand dollars or to a term of imprisonment not exceeding six months or to both.
Criminal records of summary offences are generally kept by local police services. Each jurisdiction has different recordkeeping practices. There is no legal requirement that local services include their local records in CPIC. However, some may include the records in CPIC.
- You have the right to access your own criminal record at anytime and must consent to others’ access.
Canada’s Privacy Act states that an individual has the right to request and access their record at anytime. No one, including employers, educational institutions and volunteer agencies, can access an individual’s criminal record without that individual’s consent. Consent is given in writing, usually by signing a form.
Many volunteer and employment positions require a criminal record check. The employer/organization may submit a signed consent form with the individual’s full name and birth date or ask the individual to submit a criminal record themselves. The request can be made at the local police station.
There are two possible responses to the record check: (1) “cleared” or “no records found” and (2) “not cleared” or “record may or may not exist”. In the case of the second response, an employer/organization can request that the individual submit fingerprints to the police station. The individual will receive a copy of their Full Record.
A third party (someone other than the individual whose record is being requested) must state the kind of record they are seeking. A Criminal Name Index only shows that a record may exist. A Criminal Record Synopsis contains personal information and conviction history. On the other hand, a full criminal record shows personal information, a full conviction history, dates, discharges and acquittals.
- The PBC has discretion to revoke record suspensions.
An individual who was granted a record suspension can have that record suspension revoked. This means that the individual’s criminal record will no longer be kept separate and apart from other criminal records. Therefore, their criminal record will appear in CPIC.
The PBC may revoke a record suspension if:
- The individual is convicted of another offence;
- There is evidence satisfying the PBC that the individual is no longer of good conduct; or
- There is evidence satisfying PBC that the individual made misrepresentations in their application.
The PBC will notify you if it proposes to revoke your record suspension. You have the right to make representations or have representations made on your behalf. These representations can be in writing or orally at a hearing before the PBC. The PBC is required to consider your representations within a reasonable time.