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.  

Stuart O’Connell (criminal defence lawyer, Toronto)

You are welcome to contact Stuart via LinkedIn (14) Stuart O'Connell | LinkedIn


[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

 [FN9]  Office of the Parliamentary Budget Officer, Legislative Costing Note (2020-10-08), online:<https:// LEG-2021-039-M_en.pdf (pbo-dpb.ca)>.


Location: Toronto, ON, Canada

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