Pardons

 

 

Persons who have received conditional or absolute discharges under s. 730(1) of the Criminal Code need not apply for pardons. Under s. 6.1 of the Criminal Records Act, conditional discharges and absolute discharges are automatically removed from the record after specified time periods.  

 

Section 4 of the Criminal Records Act states that before applying for a pardon, the following period must have elapsed since the applicant completed their sentence (including probation periods and payment of fines):

·        five years for indictable offences; and

·        three years for summary conviction offences.

 

 

Section 4.1(2) of the Criminal Records Act states that the National Parole Board will grant a pardon for a summary conviction offence if it is satisfied that, for the specified period, the applicant has not been convicted of an offence under an Act of Parliament or a regulation made under an Act of Parliament.

 

For indictable offences, there is an extra requirement: s. 4.1(1) requires the applicant to have “been of good conduct” for the specified period. Good conduct means having no charges or allegations of criminal behaviour in the specified period.

 

An applicant whose application is refused must wait another year from the date of the initial refusal before they can re-apply for a pardon: Criminal Records Act s. 4.2(4).

 

In principle, after a pardon has been granted, that conviction should no longer reflect adversely on the applicant’s character. Therefore, when the pardon is granted s. 5 of the Criminal Records Act requires the “judicial record” of the conviction to be kept “separate and apart from other criminal records”. “Judicial record” has a broad meaning and, according to s. 6(4) of the Criminal Records Act, it includes information contained in the national DNA data bank. In other words, after a pardon is granted the conviction, and the details of it including fingerprint, DNA, and other information, are kept separate and apart from other criminal records.

 

It is clear from s. 6(2) of the Criminal Records Act that the “judicial record” is still retained, but neither the details of it, nor its existence, are disclosed “to any person… without the prior approval of the Minister”.

 

 

Obtaining a pardon does not alter the fact that the person has been convicted of an offence and therefore has a criminal record:

 

[A] pardon does not make the past go away, it expunges consequences for the future.  The integrity of the pardoned person is restored, and he or she need not suffer the effects associated with the conviction in an arbitrary or discriminatory manner.

 

A pardoned person cannot completely deny the existence of the conviction and answer “no” if asked whether they have ever been convicted. A pardon merely allows the pardoned person to say that they have since received a pardon which proves that they have since been a law abiding person. Therefore, if a person granted a pardon is asked on an employment or immigration application form whether they have ever been convicted of an offence, they would have to say that they had, but then could explain that they had been pardoned for that offence.

 

As noted above, under s. 6(2) of the Criminal Records Act, the federal government is obliged to keep the “judicial record” of a pardoned conviction separate. However, there are some exceptions to this rule and when the exceptions apply, details of the conviction can be disclosed.

 

Under s. 6  of the Criminal Records Act, the Minister of Public Safety and Emergency Preparedness has a general power to disclose the record despite the pardon when:

 

[T]he disclosure is desirable in the interests of the administration of justice or for any purpose related to the safety or security of Canada or any state allied or associated with Canada.

 

Furthermore, under s. 6.2 of the Criminal Records Act, the pardoned person’s details may be released to the police if their fingerprints are found at the scene of a crime. The personal information may also be released to identify the pardoned person if they are later deceased or suffering from amnesia.      

 

Furthermore, under s. 6.3(2) of the Criminal Records Act, in the case of convictions for specified sexual offences, a notation indicating the existence, but not the details, of the conviction may be maintained on the criminal records system of the RCMP. This criminal record system is called the Canadian Police Information Centre (CPIC). Organisations offering work or volunteer positions with children or other vulnerable persons, may request applicants to consent to background checks being done which include consent to the RCMP disclosing the existence of notations regarding pardoned sexual offences. If the pardoned person consents, the RCMP may, under s. 6.3(3) of the Criminal Records Act, disclose the record relating to the pardoned conviction. Therefore, a pardon will be of little use to a person convicted of a specified sexual offence if they are asked to consent to such a record check.

 

·        the pardoned person is subsequently convicted of a summary conviction offence under federal legislation;

·        the Board has evidence that that the person is no longer of good conduct; or

·        the Board has evidence that the pardon was based on a false or deceptive statement.

 

A pardon automatically ceases to have effect if the person is subsequently convicted of an indictable offence, certain hybrid offences, or if the Board discovers that the person was actually not eligible for a pardon at the time it was granted: s. 7.2 of the Criminal Records Act.

 

Three types of pardon are available under the Criminal Code.

  

 

Pardons under s. 748(1) and s. 748.1(1) essentially just reduce the applicant’s sentence and, like pardons under the Criminal Records Act, do not allow the pardoned person to later deny the existence of the conviction. Conversely, as explained by s. 748(3) of the Criminal Code, a free pardon under s. 748(2) does allow the pardoned person to subsequently deny the conviction and answer “no” when asked if they have been convicted of an offence; but the same may not be so for conditional pardons granted under s. 748(2).

 

To some extent pardons mitigate the consequences of having been convicted. But, generally pardons do not allow the pardoned person to deny that they were previously convicted and so will not entirely eliminate the negative consequences of previous convictions. Furthermore, the pardons discussed above are only available for federal offences. In the absence of pardon legislation in a particular province, pardons are not available for provincial offences.