Pardons and Record Suspensions

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.

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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".

Ineligible Persons and Offences

Restrictions on application for record suspension

4 (1) A person is ineligible to apply for a record suspension until the following period has elapsed after the expiration according to law of any sentence, including a sentence of imprisonment, a period of probation and the payment of any fine, imposed for an offence:

(a) 10 years, in the case of an offence that is prosecuted by indictment or is a service offence for which the offender was punished by a fine of more than five thousand dollars, detention for more than six months, dismissal from Her Majesty’s service, imprisonment for more than six months or a punishment that is greater than imprisonment for less than two years in the scale of punishments set out in subsection 139(1) of the National Defence Act; or

(b) five years, in the case of an offence that is punishable on summary conviction or is a service offence other than a service offence referred to in paragraph (a).

Ineligible persons

(2) Subject to subsection (3), a person is ineligible to apply for a record suspension if he or she has been convicted of

(a) an offence referred to in Schedule 1; or

(b) more than three offences each of which either was prosecuted by indictment or is a service offence that is subject to a maximum punishment of imprisonment for life, and for each of which the person was sentenced to imprisonment for two years or more.

Exception

(3) A person who has been convicted of an offence referred to in Schedule 1 may apply for a record suspension if the Board is satisfied that

(a) the person 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 him or her;

(b) the person did not use, threaten to use or attempt to use violence, intimidation or coercion in relation to the victim; and

(c) the person was less than five years older than the victim.

Onus — exception

(4) The person has the onus of satisfying the Board that the conditions referred to in subsection (3) are met.

Amendment of Schedule 1

(5) The Governor in Council may, by order, amend Schedule 1 by adding or deleting a reference to an offence.

R.S., 1985, c. C-47, s. 4; R.S., 1985, c. 1 (4th Supp.), s. 45(F); 1992, c. 22, s. 4; 2000, c. 1, s. 1(F); 2010, c. 5, s. 2; 2012, c. 1, s. 115.

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Offences

SCHEDULE 1

(Subsections 4(2), (3) and (5))

1 Offences

(a) under the following provisions of the Criminal Code:

(i) section 151 (sexual interference with a person under 16),

(ii) section 152 (invitation to a person under 16 to sexual touching),

(iii) section 153 (sexual exploitation of a person 16 or more but under 18),

(iv) subsection 160(3) (bestiality in the presence of a person under 16 or inciting a person under 16 to commit bestiality),

(v) section 163.1 (child pornography),

(vi) section 170 (parent or guardian procuring sexual activity),

(vii) section 171 (householder permitting sexual activity),

(vii.1) paragraph 171.1(1)(a) (making sexually explicit material available to child under 18 for purposes of listed offences),

(vii.2) paragraph 171.1(1)(b) (making sexually explicit material available to child under 16 for purposes of listed offences),

(vii.3) paragraph 171.1(1)(c) (making sexually explicit material available to child under 14 for purposes of listed offences),

(viii) section 172 (corrupting children),

(ix) section 172.1 (luring a child),

(ix.1) paragraph 172.2(1)(a) (agreement or arrangement — listed sexual offence against child under 18),

(ix.2) paragraph 172.2(1)(b) (agreement or arrangement — listed sexual offence against child under 16),

(ix.3) paragraph 172.2(1)(c) (agreement or arrangement — listed sexual offence against child under 14),

(x) subsection 173(2) (exposure),

(xi) to (xiii) [Repealed, 2014, c. 25, s. 35]

(xiv) paragraph 273.3(1)(a) (removal of child under 16 from Canada for purposes of listed offences),

(xv) paragraph 273.3(1)(b) (removal of child 16 or more but under 18 from Canada for purpose of listed offence),

(xvi) paragraph 273.3(1)(c) (removal of child under 18 from Canada for purposes of listed offences),

(xvi.1) section 279.011 (trafficking — person under 18 years),

(xvi.2) subsection 279.02(2) (material benefit — trafficking of person under 18 years),

(xvi.3) subsection 279.03(2) (withholding or destroying documents — trafficking of person under 18 years),

(xvi.4) subsection 286.1(2) (obtaining sexual services for consideration from person under 18 years),

(xvi.5) subsection 286.2(2) (material benefit from sexual services provided by person under 18 years),

(xvi.6) subsection 286.3(2) (procuring — person under 18 years),

(xvii) paragraph 348(1)(a) with respect to breaking and entering a place with intent to commit in that place an indictable offence listed in any of subparagraphs (i) to (xvi), and

(xviii) paragraph 348(1)(b) with respect to breaking and entering a place and committing in that place an indictable offence listed in any of subparagraphs (i) to (xvi);

(b) under the following provisions of the Criminal Code, R.S.C. 1970, c. C-34, as that Act read before January 1, 1988:

(i) subsection 146(1) (sexual intercourse with a female under 14),

(ii) subsection 146(2) (sexual intercourse with a female 14 or more but under 16),

(iii) section 151 (seduction of a female 16 or more but under 18),

(iv) section 166 (parent or guardian procuring defilement), and

(v) section 167 (householder permitting defilement);

(b.1) under the following provisions of the Criminal Code, as they read from time to time before the day on which this paragraph comes into force:

(i) subsection 212(2) (living on the avails of prostitution of person under 18 years),

(ii) subsection 212(2.1) (aggravated offence in relation to living on the avails of prostitution of person under 18 years), and

(iii) subsection 212(4) (prostitution of person under 18 years);

(c) that are referred to in paragraph (a) and that are punishable under section 130 of the National Defence Act;

(d) that are referred to in paragraph (b) and that are punishable under section 120 of the National Defence Act, R.S.C. 1970, c. N-4; and

(e) of attempt or conspiracy to commit an offence referred to in any of paragraphs (a) to (d).

2 Offences

(a) involving a child under the following provisions of the Criminal Code:

(i) section 153.1 (sexual exploitation of a person with a disability),

(ii) section 155 (incest),

(iii) section 162 (voyeurism),

(iv) paragraph 163(1)(a) (obscene materials),

(v) paragraph 163(2)(a) (obscene materials),

(vi) section 168 (mailing obscene matter),

(vii) subsection 173(1) (indecent acts),

(viii) section 271 (sexual assault),

(ix) subsection 272(1) and paragraph 272(2)(a) (sexual assault with firearm),

(x) subsection 272(1) and paragraph 272(2)(b) (sexual assault other than with firearm),

(xi) section 273 (aggravated sexual assault),

(xii) paragraph 348(1)(a) with respect to breaking and entering a place with intent to commit in that place an indictable offence listed in any of subparagraphs (i) to (xi), and

(xiii) paragraph 348(1)(b) with respect to breaking and entering a place and committing in that place an indictable offence listed in any of subparagraphs (i) to (xi);

(b) involving a child under the following provisions of the Criminal Code, R.S.C. 1970, c. C-34, as that Act read before January 1, 1988:

(i) section 153 (sexual intercourse with stepdaughter, etc., or female employee), and

(ii) section 157 (gross indecency);

(c) involving a child under the following provisions of the Criminal Code, R.S.C. 1970, c. C-34, as that Act read before January 4, 1983:

(i) section 144 (rape),

(ii) section 145 (attempt to commit rape),

(iii) section 149 (indecent assault on female),

(iv) section 156 (indecent assault on male),

(v) section 245 (common assault), and

(vi) subsection 246(1) (assault with intent to commit an indictable offence);

(d) that are referred to in paragraph (a) and that are punishable under section 130 of the National Defence Act;

(e) that are referred to in paragraph (b) or (c) and that are punishable under section 120 of the National Defence Act, R.S.C. 1970, c. N-4; and

(f) of attempt or conspiracy to commit an offence referred to in any of paragraphs (a) to (e).

3 [Repealed, 2012, c. 1, s. 133]

2010, c. 5, s. 9; 2012, c. 1, ss. 49, 131 to 133; 2014, c. 25, s. 35.

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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.

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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"

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

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

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

Pardons

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

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

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.

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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.

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

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. Applications for administrative pardons are made to the National Parole Board and can be accepted after a certain amount of time has lapsed.

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 [mandatory weapons prohibition order], 110 [discretionary weapons prohibition order], 161 [s. 161 prohibition order], 259 [driving prohibition orders], 490.012 [SOIRA orders] or 490.019 [Obligation to Comply with the Sex Offender Information Registration Act — Convictions Before December 15, 2004] 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.
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The purpose of the pardon is to:

• 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.

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

In March 2012, this section was repealed.

Purging Criminal Records

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

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