Demystifying Eligibility Criteria for Record Suspension
In life, everyone makes mistakes, experiences the consequences of those mistakes, and, hopefully, learns from them. But some errors are relatively minor, with trivial outcomes, like getting on the wrong train in an unfamiliar subway system. Other mistakes, however, can have lasting consequences that can haunt a person for years.
Committing a crime is one such mistake that can have an impact lasting a lifetime. However, even though committing a crime is a serious error, does it have to be a mistake with repercussions that continue throughout the entire life of the offender?
In Canada, the answer is “maybe,” which means that Canadians have the power, under certain circumstances, to change devastating outcomes. If you’re convicted of a crime, your chance to resume a normal life depends on a record suspension, formerly known as a pardon. But is this an option for you? What can a record suspension do for you? If you think you may need one, how do you even go about applying for a record suspension? Let’s get a closer look at all of the details now.
It Starts with a Mistake
The best place to start with the record suspension process is at the beginning. The first thing that occurs is the crime itself and then the arrest. The most important aspect here is that the offence is being recognized in the Canadian legal system as a criminal act. So minor infractions and misdemeanours, such as a speeding ticket, jaywalking, or trespassing aren’t counted here, even if the police do respond. Once an act is deemed a criminal offence, however, that’s a whole other level.
If you are arrested and charged with a criminal offence, you will be taken down to a police station. Here, you will have your fingerprints and photo taken, and they will be put on record. These pieces of personal data will be in the database of the CPIC, the Canadian Police Information Centre.
Depending on the type of offence committed, there will be a hearing, where your date for a trial will be set, and there may also be a bail amount determined. If bail is required, this means that you or someone willing to financially represent you must pay a certain amount to the court to allow you to leave prison, and return to your normal life until the trial begins. If bail is not posted, you must wait in jail until the trial date. In the most severe cases, like murder, no bail is posted due to safety and security concerns, and the accused must wait in prison.
Facing the Jury
The trial is where the “final roadmap” for consequences will be determined. It is here, with lawyers presenting arguments to a jury, that the accused will then have a verdict of guilty or not guilty decided by that jury. If the decision is guilty, then the accused is now convicted of criminal acts and will pay fines or serve a set amount of time in prison. Once the verdict is rendered, and the penalties are paid and time is served, this information is also entered into the CPIC database.
It is crucial to understand that even after all of the other legal consequences of a guilty verdict have run their course, a record of the conviction remains. Provided that the offender doesn’t commit another crime, this information will remain unaltered as criminal record, and a permanent part of that person’s history.
The Criminal Record
After all of the time sentenced has been served, this is where the true impact of one’s actions truly begins to take shape. A criminal record is also considered part of public record. That does not mean that anyone can simply go on the internet, type a person’s name into a search engine and see that he or she has committed a crime. What it does mean, however, is that any private citizen who is willing to pay the administrative charge required by law enforcement can conduct a background check. And if the person they are running the check on has a convicted offence, they will see the arrest, verdict, and any fines or time served in prison as a result of that offence. For any law enforcement organization, this information is free to access regardless of location. So the provincial police in Ontario can access the data just as easily as the FBI in the United States, or INTERPOL at the global level.
Accessibility matters because a criminal record has both legal and unofficial consequences for a person re-entering society and attempting to start a new life. From a legal perspective, certain occupations prohibit a person from having criminal convictions. Criminals who have committed sexual offences against children, for example, cannot work in child care or teaching occupations and a background check is mandatory to verify that no such conviction exists in employment candidates.
Unofficially, the presence of a criminal conviction can still legally be considered permissible for certain employment decisions to be made, but it is unlikely an employer will overlook a record. As another example, someone who is convicted of theft, or even large-scale financial fraud, can be legitimately passed over for a job involving the handling of sizable amounts of cash. The position itself may not have a legal mandate to restrict the criminally convicted from holding such a job, but an employer is well within their rights to make a decision based on the presence of a criminal record. Employers cannot discriminate against candidates based on race, religion, gender, or sexual orientation. People with criminal convictions have no such protections or employer mandates in place.
Travel Restrictions
Another area where the presence of a criminal record can have a significant impact is international travel, especially if the destination is the United States. Canada and the USA have a long-standing agreement that if a Canadian is found to have been in violation of America’s moral turpitude laws, then that Canadian is barred from entry into the USA.
For the most part, moral turpitude in the USA runs along similar lines as a typical criminal conviction in Canada. So a large number of convictions, like theft, drug trafficking, murder, and even fraud would all be considered breaches of moral turpitude, and grant the Customs & Border Patrol, either at the border itself or at international airports, to forbid that Canadian criminal record holder from proceeding further into the country. This ban from entry is permanent and a US Entry Waiver is required to return to the US.
Limited Lifestyle Opportunities
Even without travel or employment restrictions, the presence of a criminal record can still have a profound impact on a person’s life. Background checks can be conducted for a number of other different reasons. People who are thinking of renting a home or an apartment may be subject to a background check. People who would like to volunteer to work with certain vulnerable demographics, such as the elderly or children, may also have a background check run on them.
Even if you a person who wants to adopt a child and raise a family, an adoption can be denied if the presence of a criminal record is found during the background check stage. So in a lot of ways, a criminal act can continue to have a lingering, negative impact on a person’s life even after the law has decided that justice has been served.
Getting It Fixed
If the person convicted does absolutely nothing, the criminal record will remain as a permanent part of the background check for the remainder of the person’s life. It will continue to be a publicly accessible record that can affect the decision-making process of anyone who encounters it. However, a criminal record doesn’t have to be permanent. It’s actually possible to get it removed.
In the past, this was known as a “pardon.” Today in Canada, it is referred to as a record suspension. In effect, a record suspension acts like a “sealing” of a criminal record. Should a record suspension be granted, then, under most circumstances, a background check conducted will merely show nothing, the same as it would for any other citizen who had not committed a crime. No conviction, fingerprinting, history of arrest or charges will appear in CPIC for any person or law enforcement personnel that conducts a background check.
However, there are some exceptions to record suspension eligibility. Any person who has committed an offence against a child, especially if it is a sexual offence, will never qualify for a record suspension. And in some cases, even with a record suspension, specific crimes such as sex crimes against women may still come up in background checks. If a person is trying to apply for a job or volunteer in an area with a “vulnerable sector” such as a women’s shelter, then the sexual offence will appear. Whereas applying for a job in an accounting firm where a background check is required, no red flags would be raised. A final condition is the number of offences a person has committed. If a person has been convicted of three or more indictable offences, with prison terms of two more years, then that is regarded as “too many crimes” to seek a record suspension for.
How to Qualify
If you want to apply for a record suspension, you need to meet a few criteria before you can start thinking about getting the forms and beginning the process. First, you must have served any prison sentences required, and if there are any fines, charges, or other forms of compensation demanded, these must have been paid out.
You must also have completed your probation, and, most importantly, you must not have any additional offences for a specified period of time. If your conviction was for the less serious summary offence, you must wait for five years, without additional arrests and convictions, before applying for a record suspension. If your conviction was for an indictable offence, the waiting period is ten years.
Getting Your Papers
Getting a record suspension is neither quick nor easy. Even after the appropriate amount of time has passed, there are many documents that you must produce to qualify for consideration. There are many different documents you may need depending on your situation, including:
- Criminal Record
- Court Information
- Military Conduct Sheet (if a member of the armed forces)
- Local Police Records
- Proof of Citizenship or Immigration
- Photocopy of Document to Support Identity
- Schedule 1 Exception Form
- Record Suspension Application
- Measurable Benefit/Sustained Rehabilitation Form
The list is a quite lengthy, and even just getting some of these specific documents will have their own requirements and criteria you need to meet just to secure them. And once the materials are obtained, the forms required to submit them with must be filled out precisely and accurately. Any mistakes or errors of inclusion or omission could delay or even invalidate the record suspension application, requiring you to start again.
The length of time for a record suspension application to be approved varies with the severity of the offence. The process can take six months, one year, or even two years depending on your crime. The record suspension process is not immediate.
You Don’t Have to Do It Alone
Though it is true that the process of applying for a record suspension and getting it approved is complicated, even a little intimidating, it’s not something that you have to do alone. There are plenty of organizations in Canada that put a focus on helping people who are wishing for a second chance at approval. All you need, in many cases, especially when considering help from non-profit organizations, is a willingness to approach the group and explain the exact circumstances of your criminal offence.
Done correctly, with experienced people who have undertaken the record suspension process many times, a record suspension application stands a good chance of success. It is critical to be thorough during the application process, and leave no opportunities for the application to be questioned, deemed invalid, or require further clarification before moving forward to the next step in the process. Experienced people like the experts at Pardons Canada can help you tremendously with your record suspension.
Pardons Canada undertakes all necessary steps and procedures for removing your criminal record, including: Pardons/Record Suspensions, Purges, Photograph & Fingerprint Destruction, and U.S. Entry Waivers.
