Pardons and Record Suspensions

From Criminal Law Notebook

General Principles

See also: Effect of Criminal Records in Sentencing

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".

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.


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]

  1. ↑ R v Gyles, [2003] O.J. No. 1924(*no CanLII links) at para 6
  2. ↑ Gyles, ibid. at para 6
  3. ↑ Gyles, ibid. at para 7, 8

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.


– CCC

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.[1]

  1. ↑ 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(*no CanLII links) at para 8
  2. ↑ Gyles, ibid. at para 8
  3. ↑ R c H.B., 2010 NBBR 214 (CanLII)
  4. ↑ Re Therrien, 2001 SCC 35 (CanLII), [2001] 2 SCR 3
    Gyles, supra at para 12-14
  5. ↑ Gyles, ibid. 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.

  1. ↑ http://www.rcmp-grc.gc.ca/cr-cj/pp-er-eng.htm#a4
  2. ↑ ibid.
  3. ↑ ibid.
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