Demystifying Eligibility Criteria for Record Suspension
There is the old saying that everyone deserves a second chance. It’s based on the belief that just because someone makes a mistake, that does not mean the mistake should be held against them forever. People who fail a driver’s test, for example, should be allowed to retake it. Even people who break the legal sanctity of marriage can make amends by apologizing, getting counselling, and becoming a better person.
But then some mistakes are severe. Some people might even say that those mistakes are grave enough that they can’t even be classified as mistakes and can never be forgiven. A drunk driving incident that takes the life of someone else might be one. Theft from a company that hurts that company and even ruins the careers of coworkers would be another. Or a prank like “swatting” that sends an armed police force to someone’s home and results in that person getting shot and killed would be another.
Even in such extreme cases, the ones that involve an arrest, with charges being filed, a trial held, and a verdict of guilty handed down, this isn’t always the end of the story. It’s possible, even in these situations, to eventually get a second chance. Most people know of this process as a pardon, and it is neither quick nor easy to undergo, but it is possible for people who want to clear their record.
Pardon Application Guide: The State of the Canadian Pardon
Most people in Canada are still familiar with the term “pardon,” but in actuality, this term fell out of official use and recognition in 2012. Today in Canada, the official name used for this legal action is known as a “record suspension” to better reflect the actual process. Pardon, however, is still commonly used in everyday language.
The pardon, or record suspension, is not actually a pardon. A person who receives a record suspension is not having a punishment commuted. An executive authority usually issues a true pardon, usually a head of state, such as a Prime Minister or a President. It is granted to someone serving time in prison or even due for capital punishment, which “cancels” the punishment and grants freedom.
But the more common, “pedestrian” pardon is only granted after a person has been convicted, served time, and proven to be a reformed member of society. In these cases, the pardon simply seals or suspends the criminal record of that person so that it is no longer viewable by the public. That is why, in Canada, when someone’s record gets suspended through the pardon process, we refer to it as a record suspension.
A Criminal Conviction
A pardon is something that is only necessary and can only be issued for people with criminal convictions. For the average, run-of-the-mill breach of the law, such as jaywalking, speeding or a restaurant’s violation of health and safety codes, there’s no need for such a procedure because there are no long-term legal ramifications for these violations. A breach of the civil law—while frowned upon—is not considered serious. However, a violation of criminal law, with harm, damage, or even death involved, is a very different matter entirely.
When a criminal law is broken, this results in an arrest, charges applied to the lawbreaker, fingerprints taken, and a trial with a jury in some cases. The person, now a defendant, will have that trial conducted as the lawyers argue for and against that person’s guilt. At the conclusion of the trial, your jury or judge deliberates and ultimately decides whether a person is guilty or not guilty.
If a person is found guilty, then fines, probation and/or a jail sentence will be served, depending on the severity of the crime. Once the jail sentence or probation has been served, and the individual is released back into society, a few things happen. One is that there is usually a probationary period, where the convicted must still regularly report to the authorities to see how parole is progressing.
The other is that the person now has a criminal record, which is something stored in the Canadian Police Information Centre (CPIC) database. That criminal record entry is permanent, viewable, and has far-reaching consequences. Only a pardon can address it.
Why Criminal Records Matter
Though there has always been a lot of talk during a person’s youth about the threat to a normal life posed by a “black mark” on a mythical “permanent record,” there is actually a lot of truth to this urban legend. A criminal record is a mark on a permanent record, and this information is not private. Quite the opposite in fact.
A permanent record, when placed in the CPIC database is public information. That doesn’t mean that anyone can easily get it by typing a name into a criminal record equivalent of Google, but it does mean that anyone who wants this information can get it. In the case of law enforcement groups, they have free access to this information. So, if you live in Edmonton, Alberta, the Edmonton police can easily call up this record. However, if you’re visiting Toronto, the Toronto police or even the RCMP can also call up those records.
Even if you’re travelling, law enforcement has access. The Federal Bureau of Investigation in the United States has easy access to the CPIC database if they need it, and so does INTERPOL, the global body of law enforcement. All of these groups—and many more—have free access to CPIC records should they need it.
However, the public does as well. The only difference between police and public access is that for a member of the public to get this information, they must pay a fee for processing and administration. The small financial commitment aside, however, the public can get access to the same information on a criminal record as a law enforcement group would.
A Long Shadow of Consequences
It may not seem like much, to have a criminal record, but the past has a way of shaping the future. We’re fortunate to live in a time and a country where it is illegal to base things like employability on race, gender, religious beliefs, or sexual orientation. However, none of those protections apply to someone with a criminal record. In fact, there are some instances where an employer is legally required to not hire someone with a criminal record, such as the “vulnerable sectors” of the work sphere, like education or care of children.
Even when there are no legal requirements to filter out applicants with a criminal record, there is no law against deciding not to hire someone on the basis of a criminal record. All employers are allowed to conduct background checks on job applicants, and they are allowed to make their hiring decisions based on the results of those background checks.
So, if someone with a criminal record for fraud and company theft is rejected for a job in a company’s financial department after a background check is conducted, there’s nothing wrong with that decision. It’s understandable why a company would not want to put someone who has already committed white collar theft and fraud in a position where they may be able to do it again, especially when there are equally qualified applicants who don’t have this conviction.
Other Limitations
It’s not just employment opportunities that are affected by a criminal record and a lack of a pardon. Other aspects of life can also be affected. Travel, for example, can be dramatically affected by the presence of a criminal record, especially for people who wish to travel to the United States.
A Canadian can get to the USA by either using an International Canadian airport or go south and cross the physical border between countries. Regardless of method, there is the possibility that the Customs & Border Patrol, or CBP, will conduct a background check. If they find a criminal record, that person is then permanently barred from entry into the United States. Even in other areas of life such as trying to rent a home or seeking to adopt a child, the presence of a criminal record can result in a denial once a background check is conducted.
The Pardon Solution
Regarding the disappointments mentioned above, pardons can solve a lot of problems. By seeking a pardon—or record suspension—a convicted criminal gets the arrest, fingerprinting, trial outcome, and time served all “sealed” in the CPIC database. It’s important to note that “sealed” does not mean erased. There is a big difference between an outright deletion and the sealing of a record. However, in most cases, the result the same: a background check conducted by law enforcement or the public will show nothing. The record is “clean.”
There are, however, certain conditions on just how far a pardon will go. For example, people who have committed a sexual offence involving a minor can never be granted a pardon. Other sexual offences may still be eligible for a pardon, but under certain conditions that seal may be waived. For example, an offender convicted of rape who is granted a pardon will have a clean record when a background check is made for a job in an advertising firm. However, if that same offender applies for a job at a women’s shelter, which is considered a vulnerable sector, the sexual offence will be active and “flagged,” due to the nature of the job and the crime.
You must also note that if a person is granted a pardon and they commit another serious criminal offence, their pardon will be revoked, and the full criminal record will be restored.
How to Qualify
Before you look into applying for a pardon, you should first see whether you qualify to do so. There’s more to the eligibility for a pardon than just not having committed a sexual offence involving a minor. You need to have paid all fines that may have been required as part of your conviction.
Also, you must have served your time in jail if there was a jail sentence. You need to have cleared your probationary period and no longer be on probation. After all that, you must remain a productive citizen, with no further arrests and convictions for a certain number of years. If your conviction was for a summary offence, the waiting period is five years. If you have an indictable offence, the waiting period is ten years.
Required Documentation
In addition to simply filling out an application form to get a pardon, you will also be required to furnish a large number of supporting documents. How many and the kinds of materials you need to present will vary somewhat based on your situation. But the general list includes:
- Criminal Record
- Military Conduct Sheet (if a member of the armed forces)
- Local Police Records
- Court Information
- Proof of Citizenship or Immigration
- Photocopy of Document to Support Identity
- Schedule 1 Exception Form
- Record Suspension Application
- Measurable Benefit/Sustained Rehabilitation Form
Keep in mind that gathering these documents is, in and of itself, going to take time. Some of these documents will even require applications themselves to get a hold of, so there will be a lot of hoops that you’ll need to jump through just to get the documents necessary to have your application be accepted.
Once you’ve gotten your documents, filled out the form, and submitted it, there’s the wait to hear back about whether you’ve been approved. Your wait time will also be dependent on the nature of the offence. Some people hear a response in six months if it’s a minor, summary conviction. Others may not hear back for one or even two years on more severe, indictable offences, so be prepared to wait.
Make Sure It’s All Done Right
While there’s a lot of bureaucracy and red tape involved in getting a pardon, that doesn’t mean that there aren’t people out there who can help. Even if it may be your first time undertaking such a complex process as a criminal record holder, there are groups with experience at successfully getting people through this process. Reach out to Pardons Canada for help.
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.
