Clemency and Record Suspension
March 5, 2013
Presented by:
Dr. Brian Bender, PhD
Manager, Clemency and Record
Suspension Division
What is a Record Suspension?
• A Record suspension is a formal attempt to remove
the stigma of a published record for people found
guilty of a federal offence and who, after satisfying
specific criteria, have shown themselves to be
responsible citizens.
• A record suspension is a means to facilitate social
reintegration.
• A criminal record can mean that you may not be able
to travel to other countries, rent property, purchase
insurance, find stable work, be recognized a
professional body (law, medicine, accounting or
teaching), or be bonded .
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Profile of an Applicant
• 96% of applicants have received a provincial
sentence
• Provincial Sentences can include: fines,
restitutions, probations, suspended sentences,
or a period of imprisonment ranging from 1
day for default of payment of fine, to 24
months less a day.
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Profile-continued
• 70% of Applicants have never received a
custodial sentence
• Only 4% have received a federal sentence of
imprisonment of a period of 2 years or more
• 1.4% are schedule 1 offences
(sexual offence against a child)
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Most Frequent Offences
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Driving (impaired/80 mgs over)
Assault
Theft
Breaches of narcotic or drug acts
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Legislation – Record suspension
• Criminal Records Act (CRA)
– “2.1 The Board has exclusive jurisdiction and
absolute discretion to order, refuse to order or
revoke a record suspension.”
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Record suspensions – Who has
authority...
History of the Criminal Records Act:
• First enacted in 1970, to provide relief from the legal and social stigmas of a
criminal records for rehabilitated persons, as a result of a private member’s bill
introduced by Don Tolmie;
• Amended in 1972, pardon provisions were extended to individuals granted
absolute or conditional discharges for being found guilty, but not convicted of an
offence;
• To address the increasing volume of pardon applications, the Act was amended in
1992 by giving the Board authority to grant and issue pardons, (excluding absolute
and conditional discharges). Previously, the Board prepared pardon cases and
made recommendations to a special Committee of Cabinet for decision;
• Further amendments were made in 2000 to improve efficiencies in the pardon
process and introduced a flagging system for the criminal records of sex offenders
for the protection of vulnerable people.
• In April 2008, PBC introduced a 2 board member voting requirement as additional
rigor to the process of granting a pardon for those seeking a pardon for sexual
offences.
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Record suspensions – Who has authority...
History of the Criminal Records Act:
•
In June 2010, Bill C-23A was adopted. (The Limiting Pardons for Serious Crimes Act). This Bill
did not amend the exclusive jurisdiction of the Board to grant, deny or revoke a pardon,
however provided greater discretion. Pardons were no longer issued. The Board votes on all
files as good conduct must be measured on all files. Waiting periods were longer. The onus is
on the applicant to demonstrate to the Boards satisfaction that there is a measurable benefit
to his/her and that this pardon would sustain his/her rehabilitation as a law- abiding citizen.
The onus is on the Board to establish that granting a pardon would not bring the
administration of justice into disrepute.
•
On March 13, 2012 Bill C-10, known as the Safe Streets and Communities Act, received Royal
Assent. The portions of C-10 that related to the Criminal Records Act came into force. In
essence, the amendments to the Criminal Records Act were;
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substitute the term “record suspension” for the term “pardon”;
extend the ineligibility periods for applications for a record suspension to 5 years for all summary
conviction offences and to 10 years for all indictable offences;
renders individuals convicted of sexual offences against minors and those who have been convicted
of more than three indictable offences with sentences of two or more years’ of imprisonment,
ineligible for a record suspension.
requires that the Board submit a report within three months after the end of each fiscal year to the
Minister regarding record suspension decisions. The Minister will then table the report before
Parliament.
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Record suspension - Consequences
•
Does not erase conviction
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Does not guarantee entry/privileges to
another country
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Courts & Police services - do not have
to keep records separate and apart
from other criminal records
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Sexual offenders with a record
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A record suspension allows people
who were convicted of a criminal
offence, but have completed their
sentence and demonstrated they are
law-abiding citizens, to have their
criminal record kept separate and
apart from other criminal records.
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A record suspension is evidence that
the conviction should no longer reflect
negatively on a person’s character.
suspension - will still have name
flagged in CPIC (August 1, 2000
amendment to CRA)
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Does not cancel prohibition orders for
driving or firearms
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CRA Amended March 13th, 2012
Schedule 1 offences are not eligible
4 indictable offences or more, each of which the person was sentenced
to imprisonment for 2 years or more (federal Sentence); or
• 4 service offences ( offences against military law) subject to a maximum
of life and sentenced to imprisonment for 2 years or more
Exception for the “Close in Age Clause”
A Board member must be satisfied of the following:
• The person was not in a position of trust or authority
• No violence or threats were used
• The person was less than five years older than the victim
All these criteria must be met in order for a Board Member to render a
decision, and authorise accepting the application as eligible.
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What are the Criteria?
Under the original CRA
• The sentence must be completed
– Includes incarceration, probation, fines, and restitution and
compensation orders. This does not change in C23A.
Under the Record suspension legislation the waiting period has changed
• Conviction for a summary offence: 5 yrs
• Conviction for an indictable offence: 10 years
Criteria - continued
• For all indictable offences, three (3) tests must
be passed.
– Onus on the applicant
– The applicant must demonstrate to the Boards satisfaction
that there is measurable benefit to him /her and that it would
sustain his/her rehabilitation as a law-abiding citizen.
– Onus on the Board
– The Board must establish that ordering a record suspension
would not bring the administration of justice into disrepute.
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Factors
• In determining whether ordering a record
suspension would bring the administration of
justice into disrepute the Board may consider
• The nature, gravity and duration of the offence;
• The circumstances surrounding the commission of the
offence;
• Criminal history of the applicant;
• Any other factors that are prescribed by regulation.
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Process
Summary Offences
• Under a previous CRA the Board issues a
pardon for a summary offence
administratively if all criteria were met.
– 3 year waiting period post sentence and no other offences.
• Now the Board will vote and order a record
suspension when all the criteria are met.
– 5 year waiting period post sentence and measurable good
conduct (CPIC, PROS, IQT, etc…)
– Regional Board members also vote on these.
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Process
Indictable Offences
• Under previous CRA the Board granted a
pardon for an indictable offence
– 5 year waiting period post sentence and measurable good
conduct (CPIC, PROS, PIRS, IQT, etc…)
• Now the Board will order a record suspension
when all the criteria are met.
– 10 year waiting period post sentence and all criteria are met
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The Board and Record Suspension
Officers (RSO)
• The consequences of the legislative change on RSOs
and their dealings with Board members has been
significant.
• More research required to build file and make a case
for or against the ordering of a record suspension.
• Recommendations are made by RSOs
• Frequent exchanges with Board members.
• Requests for additional information
• More exhaustive and time consuming.
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Notification Process
• To the applicant or the representative
• To the Royal Canadian Mounted Police, who maintain the
central repository of criminal records in a databank called the
Canadian Information Police Centre (CPIC)
• To justice partners aware of the case
– Local police services contacted during investigation
– Provincial courts
– We have pilots with the AG in Ontario and Alberta for
central notifications.
– E-notifications have been implemented with AG in
Ontario.
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What if a Person re-offends?
• RCMP Cessation
• If convicted of another offence (with the exception of drinking and driving):
– Automatic cessation of the record suspension by the RCMP
– No decision required by the Board
• Revocation
• If convicted of a summary only offence or of behaviour that does not demonstrate
a law-abiding lifestyle:
– New information is considered
– One Board Member decides if the record suspension should be revoked
– If it is revoked, the criminal record is reactivated
• Board Cessation
• If not eligible at the time the record suspension was given, the Board can cease a
record suspension:
– New information is considered
– One Board Member decides if the pardon should be ceased
– If it is ceased, the criminal record is reactivated
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Cost Recovery
• In 1994 a fee of 50$ was initiated.
• Seen as a partial recovery of cost and as a balanced approach to having
the applicant carry some of the burden.
• In December 2010 a new ministerial order was registered increasing the
fee to 150$.
• The initial intent of the fee increase was to address sustainability of the
program prior to C23A
• On February 23rd, 2012 the fee was increased to $631, in order to provide
the Board with the additional capacity to effectively manage its workloads
and to address operational requirements as a result of changes to the
Criminal Records Act (CRA)
• Service Standards
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Conclusion
• Amendments to the Criminal Records Act
– More lengthy and costly process
– More discretion for the Board
– Increase in Clemency requests
– Some individuals outright ineligible
– Longer eligibility periods
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