Criminal Record Suspension (Pardon): Why you Need One
Most Canadians would be likely be surprised to learn just how many of their fellow citizens have a criminal record. According to Public Safety Canada, 3.8 million Canadians had criminal records in 2016. [FN1] To give you a sense of just how many among us have criminal records, the current population of Canada is approximately 38 million.
The percentage of Canada’s adult
population with a criminal record (approximately 10%) does not appear to have
changed significantly in the last two decades.
[FN2]
Most of those who have a criminal record go on to live law-abiding
lives (or on a less optimistic view: are not convicted again if they do
not). But as they go forward, they can find
their options limited.
There is stigma to having a criminal record. That will surprise few. Consider how many people you know have disclosed to you that they have a criminal
record. If you are like me (at least
outside my professional work as a defence lawyer), very few. Yet it is likely that with 10% of the adult
population having a record you are constantly interacting with people who do have
a criminal past. If you have a criminal record, consider how many people to
whom you have voluntarily disclosed the fact you have a criminal record. Again,
probably few.
Keeping your record on the down-low is not always an option. And the disclosure of the fact that you have
a criminal record can (depending where you live in Canada) pose a significant
barrier to employment, child custody, adoption, housing, and community
involvement, for example. [FN3]
Those that are eligible, therefore, should apply for what is now
known as a record suspension.
The Nomenclature
In 2012, the federal Criminal Records Act was amended, replacing the term “pardon” with the term “record suspension”. By and large, the change escaped public attention: one of the reasons why the term “pardon” is still commonly used.
It is important,
however, not to confuse a pardon (which is granted as an exercise of the
royal mercy by the Governor General or by the Governor in Council under the statutory
authority of the Criminal Code) with a record suspension (which
is granted by the Parole Board of Canada under the Criminal Records Act). Pardons are reserved for exceptional cases requiring
the involvement of Canada’s executive in order to remedy a substantial
injustice or undue hardship. A record
suspension depends on a different source of law than a pardon, is guided by
different considerations, and results in a different outcome.
Adding to the confusion,
the term “pardon” is used in some provincial legislation to refer to a Criminal
Records Act record suspension. For
instance, Ontario’s Human Rights Code refers to a Criminal Records
Act “pardon” even though the Criminal Records Act does not use the
term “pardon”. [FN4]
What is a Record
Suspension?
A record suspension, then, is not a pardon, nor is it an expungement (which results in the person convicted of an offence being deemed never to have been convicted of it). [FN5] Rather, it is an order that requires that the federal government keep the record of your conviction separate and apart from any other criminal record you might have, and, subject to some exceptions, [FN6] not disclose that record. [FN7]
Should I Hire a
Professional to Help?
Retaining a
lawyer, paralegal or business to assist with the record suspension application process
may be useful, but it is not required. In
my experience, most individuals acting alone generally have some difficulty
navigating the application process, particularly in obtaining the necessary
court documents from a court administration office. Staffing at the courts during COVID-19 has
added to the challenge.
If you do use a professional
service to assist with your record suspension application, avoid those operators
who may charge you for assisting with your application while aware that you do
not meet basic eligibility requirements for a record suspension (namely, that
you have been found guilty under an Act of Parliament, have completed any
sentence, and have demonstrated law-abiding behaviour for a prescribed number
of years). A reputable service will not take on client
that is knows has no chance of success. Meeting
these statutory eligibility requirements, however, does not guarantee
success. Think of the eligibility
requirements as a threshold step.
An individual who
has been convicted of an indicatable offence (as opposed to a less serious
summary conviction offence) or has been convicted of a sexual offence against a
minor will likely benefit from professional assistance. If you
fall within either of those two categories you are required to meet additional
requirements under the Criminal Records Act. As a result, your need for professional
advocacy is greater.
On the downside,
you must pay the service fee (which was $644.88 but as of January 2022 has been reduced to $50.00); obtain various court and identity documents to
support your application; wait for the local court administration office to complete
the Court Information Form you have submitted (which unfortunately can
take months); complete and submit the record suspension application to the
Parole Board of Canada; and wait for the Parole Board to review the application,
which, depending on the application, can take up to a year. The good news is that the overwhelming
majority of those who meet the eligibility requirements are successful in their
application. [FN8]
There are approximately 225,000 people convicted in criminal court each year. However, only around 10,000 people are granted a record suspension or pardon each year. [FN9] It would therefore appear that the record suspension process is underutilized.
While a significant
number of Canadians have criminal records, I doubt that many of those Canadians
ever predicted that they would one day have their very own “rap sheet”. In my experience, those who are most grateful
that they went through the effort and expense of a record suspension
application are those who years after being convicted of a criminal offence find
themselves yet again in conflict with the criminal justice system.
An offender's
prior criminal record, or the absence thereof, is always a factor entitled to
some weight at a sentencing hearing: R. v. Dobis (2002) CanLII 32815
(ONCA), at para. 28. However, where the
offender’s record has been suspended, the fact of the prior conviction is not
available to the sentencing judge. This
can be important in any sentencing hearing but is especially so where the Criminal
Code requires that the penalty increase if the offence is a “second” or
“subsequent offence”. See,
for example, section 320.19 (1) of Criminal
Code regarding operation of conveyance while impaired.
Additionally, a criminal record can pose a barrier to employment, education, travel, adoption, and custody of children. Unquestionably, those who are eligible to apply for a record suspension and can afford it, should apply.
A last thought. There has been a recent attempt to reform the criminal records system and implement a process whereby a criminal conviction would automatically expire after a certain number of crime-free years in the community (5 years for indictable offences, 2 years for summary conviction offences). Proposed legislation in the form of Bill S-212 is currently before the Senate. If this bill becomes law, it will become the responsibility of government to ensure the expiry of criminal records once the requisite wait periods have elapsed. The current record suspension application process will be gone.
Written by Stuart O’Connell (Barrister/Solicitor), Toronto.
About the author: Stuart O’Connell is a Toronto-based trial lawyer and PhD Candidate at Queen’s University, Kingston.
Linkedin https://ca.linkedin.com/in/stuart-o-connell-6a4836b4
Email oconnell-litigation@outlook.com
[FN1] See John Howard Society, “Reforming the Criminal Records
Act”, online: https://johnhoward.ca/wp-content/uploads/2017/04/Criminal-Records-Act-Reform-Final.pdf
[FN2] See Correctional Service of Canada, “Basic Facts About
Federal Corrections, 2001 Edition” at p. 13, online: http://dsp-psd.pwgsc.gc.ca/Collection/JS82-17-2001E.pdf.
[FN3] Human rights law varies significantly between provinces and territories. Under Ontario’s Human Rights Code “record of offences” is not currently a prohibited ground of discrimination in employment (but see s. 24(1)(b) of that Act), but it is not a prohibited ground with respect to housing.
[FN4] See the definition of “record of offences” under section 10 of Human Rights Code, RSO 1990, c H.19: “record of offences means a conviction for...an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada)…”.
[FN5] Section 5(1) of Expungement of Historically Unjust Convictions Act, S.C. 2018, c. 11
[FN6] Section 6(2.1) of the Act: with prior
approval of the Minister of Public Safety and Emergency Preparedness for “the
administration of justice or for any purpose related to the safety or security
of Canada or any state allied or associated with Canada”; 6.3 (1) on a
vulnerable sector check where the records suspension relates to an offence listed
in Schedule 2; 6.2: for the purposes of identifying
a deceased person or where a fingerprint has been found at a crime scene.
[FN7] Section 6(2) of Act.
[FN8] See Government of Canada,
Parole Board of Canada, online: https://www.canada.ca/en/parole-board/corporate/publications-and-forms/statistics-parole-pardons-and-clemency.html
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