Over 3 million Canadians have had a criminal conviction that has resulted in a criminal record, but most are unaware of basic information about criminal records, and how they can be removed from federal databases. Below is some general information on criminal records, pardons, and the recently passed pardon legislation that will affect thousands of Canadians.
Criminal Records
Anybody who receives a conviction under the Criminal Code of Canada receives a criminal record. This record will be held by the RCMP until the individual reaches 80, or sometimes 100 years old, with a few exceptions:
- Absolute Discharges: if you have received an absolute discharge on or after July 24, 1992 it will be removed automatically from the criminal record after a period of one year from the date of the sentence. Any absolute discharges received before July 24, 1992 are removed upon written request of the individual.
- Conditional Discharges: All conditional discharges received on or after July 24, 1992 are removed from the criminal record three years following the date of the sentence. Conditional discharges registered before July 24, 1992 remain in the database unless a written request is made to remove them.
- Non Convictions: If your charges were dismissed, stayed or withdrawn, or did not result in a conviction then you will not have a criminal record. However, even if the charges did not result in a conviction your personal information is still on the RCMP system. You can request that this information be destroyed (known as a File Destruction Request) through your arresting police station. Law enforcement may choose to deny this request.
Young Persons Criminal Records
The same rules above apply for absolute and conditional discharges for youths, but there are some differences for summary and indictable offences, findings of guilt not entered, non convictions, and expired criminal records:
- Summary Offence for Young Persons: If the young person is found guilty of a summary offence, the record is removed three years after the satisfaction of the sentence.
- Indictable Offence for Young Persons: If the young person is found guilty of an indictable offence, the record is active for a period of five years after the satisfaction of the sentence and is then transferred to a special repository that cannot be accessed by law enforcement.
- Finding of Guilt Not Entered for Young Persons: If a young person is acquitted, receives a reprimand, extra judicial sanctions or is ordered to enter into a recognizance to keep the peace and maintain good behaviour, the information is transferred to a special repository not accessible to law enforcement.
- Non Conviction for Young Persons: If a young person has a charge that is dismissed, withdrawn or stayed, they will not have a criminal record. However personal information will still be held unless a formal request is made to have the data removed.
- Expired Criminal Records for Young Persons: Having an expired criminal record as a Young Person should not affect you as an adult. Once entries have expired, the charges are removed and cannot be accessed by any law enforcement agency.
The general rule for criminal records held by adults is that a special application must be made to remove them from federal databases, whereas many young persons with criminal records will have them automatically removed. To permanently remove and seal a criminal record, adults must request a pardon from the National Parole Board (NPB).
Pardons
A pardon is granted by the National Parole Board, and ensures the permanent removal and sealing of a criminal record from federal databases. This means that the criminal record will cease to exist for all intents and purposes, and any criminal background checks conducted will come back with the result ‘no criminal record found’. It is only with written permission from the Minister of Justice that a pardoned criminal record can be viewed once more (this is only granted in rare circumstances). It is important to note that individuals convicted of sexual offences will still be ‘red flagged’ when vulnerable sector searches are conducted. For the majority of the population however, a pardon will mean a fresh slate, and will assist their rehabilitation into society as law abiding citizens. Pardons also assist with:
- Employment: Individuals with criminal records will often encounter difficulty obtaining stable employment. This is because many employers require a criminal record check, and will not hire those with a conviction. It is also impossible for individuals with criminal records to work in any level of government without first obtaining a pardon.
- Child Custody: Judges are allowed to take into account the existence of a criminal record as a record of character. A criminal record is a negative statement of character, but having a pardon will illustrate to judges that the individual has made a real attempt to rehabilitate as a law abiding citizen. This may influence their decision when granting child custody and visitation rights.
- Education: Education in fields such as medicine, nursing, security, and child care require a clean criminal records check. A criminal conviction can create a real barrier to pursuing education in these (and other) fields.
- Canadian Citizenship: Many people are unaware that if they are applying for Canadian citizenship and they have a Canadian criminal record, their application will be rejected. If this occurs, they may risk deportation. For this reason it is extremely important that these individuals get a pardon for their convictions before making their application.
- Volunteering: Most volunteer organizations (especially those that provide programs for children) will require a clean criminal records check. Individuals with convictions will find volunteering for these organizations difficult, if not impossible.
- Adoption: Anybody looking to adopt a child must first pass a vulnerable sector search. Although the existence of a criminal record will not automatically result in denial of an adoption request, once again a pardon will provide a positive character reference.
Pardons do not help with Travelling to the United States
Pardons are not recognized by the United States, instead U.S. Customs and Border Protection has created a list of moral turpitude that they consult when deciding whether to permit entry to Canadians with criminal records. An individual convicted of a crime of moral turpitude will be denied entry at the border, and if they attempt to cross again they may risk a limited or lifetime ban, arrest, or incarceration. It is strongly advised that these individuals obtain a U.S. Entry Waiver. This waiver will permit those with convictions of moral turpitude to enter the U.S. for a limited time period (ranging from one to five years).
Revocation of a Pardon
A pardon will remain in effect permanently unless one of the three following conditions occur, which will result in the pardon being revoked. Once a pardon is revoked or ceases to have effect, the criminal record will be transferred back into federal databases:
- If the person granted the pardon is convicted of another offence
- On evidence that the person who was granted the pardon is no longer of good conduct
- On evidence that the person applying for the pardon knowingly made false or deceptive statements on their pardon application
Pardon Eligibility
Individuals must complete the terms of their sentencing (including incarceration, parole, and the full repayment of any fines) and must then complete a required ‘conviction free period’ before they become eligible to apply for a pardon.
For individuals with a summary conviction, the conviction free period is three years. For most individuals with an indictable conviction, the conviction free period is five years. However, new rules have been created with the goal of making it more difficult for individuals with certain convictions to apply for a pardon (for more information, please readThe New Criminal Records Act, found below).
Pardon Applications
Pardon applications can be downloaded from the National Parole Board. The application contains six pages that requires personal information as well as court and local police record check information.
The New Criminal Records Act
On June 29 2010, bill C-23A was brought into force and became law. This means that all pardon applications submitted to the National Parole Board on and after that date are processed under the new rules. These rules were created with the intention of making it more difficult for people with serious personal injury convictions to be granted a pardon, as well as to give the NPB power to reject a pardon application if they feel it would damage the reputation of justice in Canada. Additionally, individuals with convictions for manslaughter, a Schedule 1 offence, an indictable offence that received five or more year’s imprisonment, and certain offences under the National Defence Act will now be required to wait 10 years after completing their sentence before they can apply for a pardon.
Future Changes to the Criminal Records Act
What was passed on June 29 2010 was only a portion of the original bill that was introduced on May 11 2010. The remainder of the bill will discusses increasing the current conviction free periods from 3 years to 5 years for summary offences, from 5 years to 10 years for indictable offences, and will also discuss permanent ineligibility to apply for a pardon for certain convictions. This bill remains in Committee and will be brought forward in parliament once again when the fall session reconvenes in September.
Further information on criminal records, please contact a lawyer on our Criminal Law Team, or visit pardons Pardons.ca to view the changing criminal records act.