Effect of Criminal Records in Sentencing

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Effects of Having a Criminal Record

Holders of Public Offices

Public office vacated for conviction
750. (1) Where a person is convicted of an indictable offence for which the person is sentenced to imprisonment for two years or more and holds, at the time that person is convicted, an office under the Crown or other public employment, the office or employment forthwith becomes vacant.
When disability ceases
(2) A person to whom subsection (1) applies is, until undergoing the punishment imposed on the person or the punishment substituted therefor by competent authority or receives a free pardon from Her Majesty, incapable of holding any office under the Crown or other public employment, or of being elected or sitting or voting as a member of Parliament or of a legislature or of exercising any right of suffrage.
Disability to contract
(3) No person who is convicted of

(a) an offence under section 121, 124 or 418,
(b) an offence under section 380 committed against Her Majesty, or
(c) an offence under paragraph 80(1)(d), subsection 80(2) or section 154.01 of the Financial Administration Act,

has, after that conviction, capacity to contract with Her Majesty or to receive any benefit under a contract between Her Majesty and any other person or to hold office under Her Majesty.
Application for restoration of privileges
(4) A person to whom subsection (3) applies may, at any time before a record suspension for which he or she has applied is ordered under the Criminal Records Act, apply to the Governor in Council for the restoration of one or more of the capacities lost by the person by virtue of that subsection.
Order of restoration
(5) Where an application is made under subsection (4), the Governor in Council may order that the capacities lost by the applicant by virtue of subsection (3) be restored to that applicant in whole or in part and subject to such conditions as the Governor in Council considers desirable in the public interest.
Removal of disability
(6) Where a conviction is set aside by competent authority, any disability imposed by this section is removed.
R.S., 1985, c. C-46, s. 750; 1995, c. 22, s. 6; 2000, c. 1, s. 9; 2006, c. 9, s. 246; 2012, c. 1, s. 146.


CCC

Youth Criminal Records

See also: Access to Records Relating to Youth Prosecutions

Travelling to the United States with a Record

Section 212(a)(2) of the Immigration and Nationality Act renders persons ineligible for a visa to enter the United States on the basis of criminality.[1]

Persons convicted of offences of "moral turpitude", conspiracy to commit such offence, or any offence "relating to a controlled substance", are inadmissible.(s. 212(a)(2)(i))

This does not apply to any conviction for any offence with a maximum penalty of one year or less in jail and the sentence was no more than 6 months. (s. 212(a)(2)(ii)(II))

Likewise, a person convicted of an offence that occurred when the offender was under 18 years of age and more than 5 years have passed since the completion of any jail sentence, may still apply. (s. 212(a)(2)(ii)(I))

Acts of "moral turpitude" refers to any "act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man."[2]

This includes certain offences:[3]

  • Fraud
  • Assault (other than simple assaults)
  • Arson
  • Break and Enter
  • Robbery
  • Extortion
  • Bribery
  • Perjury
  • Sexual Assault
  • Kidnapping
  • Manslaughter
  • Murder

A pardon or suspension of convictions is not recognized by the United States for the purposes of entry.

A conditional discharge is not recognized and is still considered a conviction. However, an absolute discharge is not considered a conviction.

A withdraw of a charge, such as after the successful completion of diversion, will not render the person inadmissible.

Waiver

Under s. 212(h), the Attorney General may exercise discretion and waive the application of the inadmissibility for criminality in certain circumstances.

Finger Prints and Photographs

See also: Seizure of Photographs and Fingerprints

Record Suspensions

The Criminal Records Act, RSC 1985, c C-47 allows for a party to apply for a record suspension.

Application for record suspension
3. (1) Subject to section 4, a person who has been convicted of an offence under an Act of Parliament may apply to the Board for a record suspension in respect of that offence, and a Canadian offender, within the meaning of the International Transfer of Offenders Act, who has been transferred to Canada under that Act may apply to the Board for a record suspension in respect of the offence of which he or she has been found guilty.
Transfer of offenders
(2) For the purposes of this Act, the offence of which a Canadian offender within the meaning of the International Transfer of Offenders Act” who has been transferred to Canada under that Act has been found guilty is deemed to be an offence that was prosecuted by indictment.
R.S., 1985, c. C-47, s. 3; 1992, c. 22, s. 3; 2004, c. 21, s. 40; 2012, c. 1, s. 114.


CRA

Prior to March, 2012, record suspensions under the Criminal Records Act was known as "Pardons".

Under s. 2, a record suspension "means a measure ordered by the Board under section 4.1".

Revocation

Under s. 7 of the Criminal Records Act,

Revocation of record suspension
7. A record suspension may be revoked by the Board

(a) if the person to whom it relates is subsequently convicted of an offence referred to in paragraph 4(1)(b), other than an offence referred to in subparagraph 7.2(a)(ii);
(b) on evidence establishing to the satisfaction of the Board that the person to whom it relates is no longer of good conduct; or
(c) on evidence establishing to the satisfaction of the Board that the person to whom it relates knowingly made a false or deceptive statement in relation to the application for the record suspension, or knowingly concealed some material particular in relation to that application.

R.S., 1985, c. C-47, s. 7; 1992, c. 22, s. 7; 2010, c. 5, s. 7.1(E); 2012, c. 1, s. 124.


CRA

Under section 7.2 of the Criminal Records Act an Administrative Pardon "ceases to have effect if the person is subsequently convicted of an indictable offence under an act of Parliament"[1]

At the point where a conviction is entered on the charge, the prior conviction has been "reinvigorated by the present convictions".[2]

A conviction that had been pardoned can be used for the purpose of sentencing of a new conviction that reinvigorate the pardoned offence.[3]

Prior to March 2012, this provision referred to revocation of pardons.

  1. R c H.B., 2010 NBBR 214 (CanLII)
  2. H.B.
  3. H.B.

Pardons

The pardon is a prerogative held by the Crown. It exists in both common law and in legislation, including the Criminal Code.[1] The pardon dates back to the Royal Prerogative of Mercy before the 11th century.[2]

There are three types of pardons: (1) free pardons, (2) conditional pardons, and (3) administrative pardons.[3]

Free and Conditional Pardons

Sections 748-749 of the Code addresses Pardons and Remissions. It states:

To whom pardon may be granted
748. (1) Her Majesty may extend the royal mercy to a person who is sentenced to imprisonment under the authority of an Act of Parliament, even if the person is imprisoned for failure to pay money to another person.
Free or conditional pardon
(2) The Governor in Council may grant a free pardon or a conditional pardon to any person who has been convicted of an offence.
Effect of free pardon
(3) Where the Governor in Council grants a free pardon to a person, that person shall be deemed thereafter never to have committed the offence in respect of which the pardon is granted.
Punishment for subsequent offence not affected
(4) No free pardon or conditional pardon prevents or mitigates the punishment to which the person might otherwise be lawfully sentenced on a subsequent conviction for an offence other than that for which the pardon was granted.
R.S., 1985, c. C-46, s. 748; 1992, c. 22, s. 12; 1995, c. 22, s. 6.


...
Royal prerogative
749. Nothing in this Act in any manner limits or affects Her Majesty’s royal prerogative of mercy.
R.S., 1985, c. C-46, s. 749; 1995, c. 22, s. 6.


CCC


A free pardon deems the person to have never been convicted for the offence. In effect, it acknowledge that the conviction was in error.[4]

  1. R v Gyles, [2003] O.J. No. 1924 at para 6
  2. R v Gyles at para 6
  3. R v Gyles, at para 7, 8
  4. Gyles at para 7

Administrative Pardon

An administrative pardons are those granted under s. 5 of the Criminal Records Act by way of the federal jurisdiction over criminal law.[1] Applications for administrative pardons are made to the National Parole Board and can be accepted after a certain amount of time has lapsed.[2]

Section 5 of the Criminal Records Act states the effect of a pardon:

Effect of pardon
5. The pardon

(a) is evidence of the fact that
(i) the Board, after making inquiries, was satisfied that the applicant for the pardon was of good conduct, and
(ii) the conviction in respect of which the pardon is granted should no longer reflect adversely on the applicant’s character; and
(b) unless the pardon is subsequently revoked or ceases to have effect, requires the judicial record of the conviction to be kept separate and apart from other criminal records and removes any disqualification or obligation to which the person so convicted is, by reason of the conviction, subject by virtue of the provisions of any Act of Parliament, other than section 109, 110, 161, 259, 490.012 or 490.019 of the Criminal Code or subsection 147.1(1) or section 227.01 or 227.06 of the National Defence Act, or of a regulation made under an Act of Parliament.

R.S., 1985, c. C-47, s. 5; 1992, c. 22, s. 5; 1995, c. 39, ss. 167, 191, c. 42, s. 78; 2000, c. 1, s. 4; 2004, c. 10, s. 23; 2007, c. 5, s. 50; 2010, c. 5, s. 5.


CRA

The purpose of the pardon is to:[3]

  • Expunged consequences for the future;
  • Restore the integrity of the accused while not making the past go away.


A pardon under does not affect guilt and does not wipe out but is intended to remove any disqualifications arising from the conviction.[4]

Administrative pardons can be used for the purposes of cross-examination in trial.[5]

In March 2012, this section was repealed.

  1. Gyles [2003] O.J. No. 1924 at para 8
  2. Gyles at para 8
  3. R c H.B., 2010 NBBR 214 (CanLII)
  4. Re Therrien, 2001 SCC 35 (CanLII), [2001] 2 SCR 3
    Gyles at para 12-14
  5. Gyles at para 16-21

Purging Criminal Records

According to RCMP policy, absolute discharges are removed after one year from the date of sentence.[1] If the date of completion of sentence predates July 24, 1992, it will only be removed upon written request of the individual.[2]

Conditional discharges are removed after three years from the date of sentence.[3] Similarly, sentences before July 24, 1992 are removed upon written request.