Pardons Under the Criminal Records Act

Then said Pilate unto Him, Speak you not unto me? Know you not that I have power to crucify you, and have power to release you? (New Testament, John 19:10).

Once a man repents, stop reminding him of what he did (Anonymous Hebrew proverb).

You likely are a person – or know someone – who has a criminal record. About 12% of adults have records for criminal convictions, and many of those have successfully applied for a pardon. The consequences of having a criminal record are onerous, especially for cross-border travel to the United States. Canadians with criminal records entering the USA need a special waiver from the Department of Homeland Security (DHS), otherwise they risk arrest, detainment and deportation, irrespective of the time since the last offence. The DHS has discretion on applications for special waiver, and is under no obligation to recognize Canadian pardons.

The pardon system in Canada is informed by notions of clemency, forgiveness and crime prevention. The legal authority comes from the Criminal Records Act. Briefly, it means that convicted offenders may apply for a pardon for a summary conviction offence (a less serious category) after three years. If a person is convicted of an indictable offence (a more serious crime), five years must have passed from their sentence expiration. In either case, the authority for granting a pardon rests with the National Parole Board.

For what kinds of crime are Canadians pardoned? We don’t have public data for that question, but the Canadian Centre for Justice Statistics reported in 2004 that the three most common crimes are impaired driving, common assault, and theft under $5000. And given Canada’s shameful history of locking up people for the mere possession of marijuana, many of those formerly convicted teenagers and young adults have sought relief under the law for indiscretions committed in the 1960s and 1970s.

In making a decision for pardoning a summary offence, the Board is under a statutory obligation to grant the pardon, providing that there is no record of a subsequent conviction from the police records made available to them.

Pardons granted for an indictable crime are made at the discretion of the NPB when it is satisfied that the applicant has been “of good conduct” during the five year conviction-free period. Good conduct is “behaviour that is consistent with and demonstrates a law-abiding lifestyle”. In determining that decision, the Board will make inquiries “to ascertain the conduct of the applicant since the date of the conviction” (S. 4.2.[1]). The NPB has access to three police information systems to aid their decision-making (e.g., no suspicion or allegations of criminal activity). In some instances, inquiries will involve contacting local police services, the Department of National Defence if the applicant is or was in the military, and various justice agencies.

Sex Offenders

Data from a report published in 2000 tell us that 234,000 pardons were granted between 1970 and 1998. Pardons were granted to sexual offenders in 4,883 applications (2.1%). Overall, only 525 (0.22%) pardons were subsequently revoked and of those, only 32 (0.014%) involved sex offenders. For that group, the report tells us that “most of the sex offenders did not re-offend sexually,”.

In 1999, Solicitor General Lawrence MacAulay announced that the criminal records of pardoned sex-offenders would be “flagged” on the Canadian Police Information Centre (CPIC) database to “ensure the safety of our children and other vulnerable groups”.

Police can now be alerted that a sealed, pardoned record exists so they can then request the Solicitor General’s authorization to unseal it. The amendments to the Criminal Records Act protect the privacy of sex offenders held in the CPIC database because information about previous convictions offences can only be released if the pardoned person

a) has been granted a pardon for a sexual offence which is covered in the Act’s schedule of offences (e.g., sexual interference with a child, incest, living on the avails of prostitution, etc.),

b) has applied for work involving a position of trust with children, the elderly or other vulnerable group for which a background check is required by the employer; and

c) consents, in writing, to have their record released to the employer.

The government’s own research shows that for the period between 1970 and 1998, only 10 offenders previously convicted of a sexual offence had their pardons revoked for a similar type of crime. Very few sex offenders are pardoned and the vast majority do not commit further sex crimes. Denying pardons to this group would restrict the liberties of those who remain crime-free.

If you have a criminal record, my advice is to go through the National Parole Board’s application process, rather than paying a for-profit agency to do the work which anyone can do themselves.

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