Record Suspensions (Pardons)

Previously known as a pardon, a record suspension allows individuals that were convicted of a criminal offence to have their criminal record separated from the main police database (the Canadian Police Information Centre; CPIC) once they have completed their sentence and demonstrated that they have been a law-abiding citizen for a prescribed number of years. If a record suspension is granted, searches of CPIC such as criminal record checks will not show the individual’s criminal record or record suspension and other records of their conviction (e.g., fingerprints) will be purged. A record suspension can be an important step in helping individuals move forward with their lives and putting the past behind them. Some benefits of a record suspension are:

• The ability to secure employment or volunteer opportunities. Many employers and volunteer organizations require a criminal record check, particularly when a position involves driving a vehicle or working with vulnerable populations such as children.
• The ability to pursue schooling, co-op, and practicum opportunities, particularly where they involve working with vulnerable populations.
• Professional licensing. A criminal record check is necessary to be licensed or certified to practice in many regulated professions and trades.
• Increased access or visitation to children and prospects for adoption.
• Travel. Many countries require a criminal record check to obtain entry. Although the US does not recognize Canadian record suspensions or pardons, a successful record suspension can assist in obtaining a US Entry Waiver to ensure successful entry.
• Personal benefits. Obtaining a record suspension can provide a clean slate without the stigma and shame that may be associated with having a criminal record, providing closure and increasing self-confidence.

History of Record Suspensions – Why Did the Name Change?

The first iteration of what is now known as a record suspension was a product of the Ticket of Leave Act (1899), under which the Lieutenant Governor of Canada could end a criminal sentence and allow an individual to continue to live their life as normal provided they remained a law-abiding citizen.^[1] Pardons replaced this system in 1970 under the Criminal Records Act, which gave the Parole Board of Canada the authority to assess cases and make recommendations for pardons. The Parole Board was given the ability to grant pardons itself in 1992.^[2] The introduction of pardons clarified the application process to have one’s criminal record sealed with concrete guidelines while also creating some restrictions on who could receive a pardon. In March 2012, pardons were renamed “record suspensions.” Pardons and record suspensions are functionally the same. Although there is no official explanation for the change in name, “record suspension” may better communicate the fact that the record has been sealed and separated, but not deleted. Reflecting this, record suspensions have three notable limitations:

1. A record suspension may still be revoked or cease to have effect under certain circumstances (described below).
2. A record suspension does not affect court-ordered prohibitions, such as those on driving or firearms.
3. Record suspensions for sexual offences are flagged in the CPIC database. Although the suspended record of a sexual offence will still be hidden from view, vulnerable sector checks conducted on individuals applying to work with children or another vulnerable group will still identify that they were convicted of a sexual offence that was then suspended and they may be asked to show the record to the potential employer.

Applying for a Record Suspension

Applying for a record suspension can be a long process, often taking 1-2 years depending on the nature of the charges and the number of courthouses at which the individual was charged. The Parole Board typically takes up to 6 months to review completed applications for summary convictions, up to 12 months for indictable offences, and up to 24 months for applications that the Parole Board is proposing to refuse. If the board seeks to deny an application, the individual is entitled to submit additional information explaining why it should be accepted for the Board to consider before issuing its final decision.^[3] Where an application is denied, the applicant must wait at least one year to re-apply. There are also a number of steps to compiling the application itself that often take 4 or more months to complete. Specifically, applicants must acquire their criminal record from the RCMP, a local police check, and official information for each of their convictions from the court that heard their case. Each of these steps can take weeks to months. Applicants are also required to submit personal statements detailing the circumstances of each conviction, how they have put any association with criminality in the past and developed systems to sustain this (“sustained rehabilitation”), and the measurable benefit that the record suspension would have on their life.

Who is Eligible for a Record Suspension?

Eligibility criteria for a record suspension or pardon have become increasingly stringent over time. For each category below, an individual may apply for a record suspension once the listed amount of time has elapsed after their sentence has expired: Offences Committed on or After March 13, 2012:

• 10 years for offences prosecuted by indictment.
• 5 years for offences punishable on summary conviction.
• Individuals are ineligible for a record suspension for offences committed within this period if they were convicted of more than three indictable offences each with sentences of two or more years, or if they committed a sexual offence against a minor as listed in Schedule 1 of the Criminal Records Act (barring certain exceptions explained below).^[4]

Offences Committed Between June 29, 2010, and March 12, 2012:

• 10 years for serious personal injury offences for which they were sentenced to a prison term of two or more years or Schedule 1 offences prosecuted by indictment.
• 5 years after the expiration of their sentence for other offences prosecuted by indictment and Schedule 1 offences punishable on summary conviction.
• 3 years for all other offences punishable on summary conviction.

Offences Committed Before June 29, 2010:

• 5 years for offences prosecuted by indictment.
• 3 years for offences punishable on summary conviction.

Expedited Suspensions for Cannabis Possession In light of recent changes to Canadian cannabis laws, adults convicted of simple possession of cannabis prior to decriminalization may apply for a record suspension as soon as their sentence has expired. Applicants are still eligible even if they have outstanding fines or victim surcharges, although the federal government may still choose to enforce unpaid fines even if the record suspension is granted. Applicants under this process may also be able to skip collecting their court information to submit as part of their application if their criminal record or local police check(s) clearly show that they were convicted only of simple possession of cannabis and their only sentence was a fine, victim surcharge, or both.^[5]

Schedule 1 Exceptions

An individual convicted of a Schedule 1 offence may still apply for a record suspension where: a) the applicant was not in a position of trust or authority towards the victim of the offence and the victim was not in a relationship of dependency with them; b) the applicant did not use, threaten to use, or attempt to use violence, intimidation, or coercion in relation to the victim; and c) the applicant was less than 5 years older than the victim.^[6] Where the Parole Board is satisfied that all three conditions are met, the individual may still apply after the 10-year eligibility period.

Revocations and Cessation of Effect

A record suspension may automatically cease to have effect or be revoked at the discretion of the Parole Board under certain conditions, returning the record to the CPIC database where it is visible on police record checks. A record suspension automatically ceases to have effect if the Board is convinced by new information that the individual was not eligible for the suspension when it was ordered or the person is subsequently convicted of an indictable or hybrid offence (with certain exceptions including impaired driving and certain drug- or firearm-related offences).^[7] Discretionary revocation may occur if the Board finds that the individual is no longer of good conduct, or that they knowingly concealed something or made a false or deceptive statement in relation to their application for the record suspension.^[8] A discretionary revocation may also occur where the individual is subsequently convicted of a summary offence. As with denied applications, if the Board seeks to revoke a record suspension, the individual is entitled to make submissions to the Board as to why it should not be revoked.^[9]

Purging Records and Discharges

Absolute and conditional discharges involve a finding of guilt which stays on the individual’s record for a prespecified amount of time without registering a conviction. They are automatically removed after one year from the date of sentence for absolute discharges and after three years for conditional discharges. If the date of completion of the sentence predates July 24, 1992, discharges will only be removed on written request from the individual.^[10] It is important to note that although the record of a discharge is automatically sealed, fingerprints and other non-conviction records may not be destroyed. For absolute peace of mind, it is important to apply for a record destruction after a discharge is sealed to ensure that no records remain accessible in police systems. ———————————————— ^[1] Government of Canada, History of Parole in Canada, (2018), online: https://www.canada.ca/en/parole-board/corporate/history-of-parole-in-canada.html. ^[2] Criminal Records Act, RSC, 1985, c C-47 [CRA]. ^[3] Government of Canada, Got a Question About Your Application? (2022), online: https://www.canada.ca/en/parole-board/services/record-suspensions/got-a-question-about-your-application.html. ^[4] CRA, supra note 2, Schedule 1. ^[5] Government of Canada, Cannabis Record Suspension Application Guide (2022), online: https://www.canada.ca/en/parole-board/services/cannabis-record-suspensions/cannabis-record-suspension-application-guide.html. ^[6] CRA, supra note 2, s4(3). ^[7] Ibid, s.7.2. ^[8] Ibid, s.7. ^[9] Ibid, s.7.1. ^[10] Royal Canadian Mounted Police, Managing Your Criminal Record (2022), online: https://www.rcmp-grc.gc.ca/en/managing-criminal-record.