Record Suspension Program 2017-2018 Report to Parliament

Introduction

Pursuant to section 11 of the Criminal Records Act (CRA), within three months after the end of each fiscal year, the Parole Board of Canada (PBC) must submit a report on the record suspension program to the Minister of Public Safety and Emergency Preparedness Canada. The report must contain the following information:

1. Number of applications for record suspensions made in respect of offences referred to in each of paragraphs 4(1)(a) and (b);
2. The number of record suspensions that the Board ordered or refused to order in respect of offences referred to in paragraphs 4(1)(a) and (b);
3. Number of record suspensions ordered, categorized by the offence to which they relate; and
4. The number of record suspensions ordered by the province or territory of residence of the applicant.

Background

As part of the criminal justice system, the PBC, or the Board, makes independent, quality conditional release and record suspension decisions, and clemency recommendations. The PBC is headed by a Chairperson who reports to Parliament through the Minister of Public Safety and Emergency Preparedness Canada. The Board contributes to the protection of society by facilitating, as appropriate, the timely re-integration of offenders into society as law-abiding citizens.

The record suspension program supports the successful reintegration of an individual into society, as it can assist an individual to access employment and educational opportunities, among other things. It is a formal attempt to remove the stigma of a criminal record for people found guilty of an offence under an Act of Parliament and who have completed their sentence and demonstrated law-abiding behaviour for a prescribed number of years. A record suspension restricts access to records under federal jurisdiction, removes disqualifications caused by a criminal conviction that would result from a conviction under federal statute or regulation, such as the ability to contract with the federal government, or eligibility for Canadian citizenship. It does not, however, guarantee either entry or visa privileges to another country nor does it have effect on a prohibition order^{Footnote 1} under section 109 of the Criminal Code of Canada (CCC).

Although the CRA applies only to records kept by federal organizations, many provincial, territorial and municipal criminal justice agencies also restrict access to their records once they are informed that a record suspension has been ordered. A record suspension does not, however, erase the fact that an individual was convicted of a crime. The criminal record is not deleted/purged, but it is kept separate and apart from other (non-suspended) criminal records. Through the program, the PBC reviews record suspension applications for completeness and eligibility, and collects information for investigation and decision-making. The Board has exclusive jurisdiction and absolute discretion to order, refuse to order, or revoke a record suspension under the CRA.

The process for revocation is started when the Board is notified (usually by the RCMP) that the person is subsequently convicted of an offence referred to in paragraph 4(1)(b) of the CRA, other than an offence referred to in subparagraph 7.2(a)(ii) of the CRA^{Footnote 2} ; there is evidence established to the satisfaction of the Board that the person is no longer of good conduct or on evidence established to the satisfaction of the Board that the person to whom it relates knowingly made a false or deceptive statement in relation to the application for the record suspension/pardon, or knowingly concealed some material particular in relation to that application.

The CRA authorizes the Board to declare that a record suspension/pardon ceases to have effect if a person is subsequently convicted of an indictable offence under a federal act or regulation of Canada or certain other types of offences^{Footnote 3}  that are punishable either on indictable or summary conviction. A record suspension/pardon can also be ceased if the Board is convinced by new information that the person was not eligible for a record suspension/pardon at the time it was ordered/granted/issued.

Since February 2012, applicants for a record suspension must pay a service fee of $631. The fee includes service standards established under the Service Fees Act. Specifically, record suspension applications involving summary convictions are processed within six months of the date of receipt of the application, while applications involving indictable offences are processed within 12 months of the date of receipt. If the Board proposes to refuse a record suspension, the applicant is allowed to respond, in writing, within 90 days. Applications for which the Board is proposing to refuse to order a record suspension may require up to 24 months after the date of application acceptance. The reason for this is that under the CRA, the Board must notify the applicant in writing of its proposal to refuse, and advise them that they are entitled to make, or have made on their behalf, any representations to the Board that they believe relevant. In some cases the Board may authorize a hearing.

On April 18, 2017, the Supreme Court of British Columbia (SCBC) released its decision in the matter of the Attorney General of Canada v. Chu in favour of the applicant. On June 14, 2017, the Ontario Superior Court (OSC) mirrored the B.C. Supreme Court ruling in the Charron / Rajab v. the Queen case. These cases challenged the constitutionality of applying changes made to the CRA retroactively for persons already convicted and sentenced prior to the coming into force of the changes.

The Department of Justice advised that the SCBC and OSC decisions are binding in the provinces of British Columbia and Ontario only and as such, an individual who resides in B.C. or Ontario must have their application for a record suspension processed in accordance with the legislative criteria that was in place at the time the applicant committed his or her offence(s). As a result, these applicants retain protection under the legislative scheme that was in place at the time of the commission of their first offence. Both court decisions held that the transitional provisions of legislation that amended the CRA in 2010 and 2012 to increase waiting periods for obtaining record suspensions and change eligibility criteria as contrary to sections 11(h) and (i) of the Canadian Charter of Rights and Freedoms (the Charter). Accordingly, applications submitted by individuals currently residing in B.C. or Ontario, and whose most recent offence occurred no later than March 12, 2012, were processed as pardon applications under the applicable version of the CRA, all while maintaining service standards.

Findings for 2017-18

Number of applications

In 2017-2018, the Board received 14,661 record suspension/pardon applications and accepted 10,958 applications (75%) for processing. There were 3,065 record suspension/pardon applications (21%) that were rejected at screening due to ineligibility, no payment, wrong processing fee and/or missing appropriate documentation. In the previous year, the Board received 11,563 record suspension applications and accepted 8,191 applications (or 71%).

The table below indicates the number of record suspension applications received in each fiscal year over the last four years 2013-2014 to 2017-2018. The table also includes record suspension and pardon applications for 2017-2018.

The number of record suspension applications received between 2013-2014 and 2016-2017 decreased each year. This decrease in applications may be attributed to an increased processing fee as well as key amendments made to the CRA in 2012, which included:

• making individuals convicted of a sexual offence against a minor and individuals convicted of more than three indictable offences (each with a sentence of two years or more) ineligible for a record suspension; and
• increasing the waiting period to apply for a record suspension from three to five years for all summary conviction offences, and from five to ten years for all indictable offences.

In 2017-2018, applications rose by over 250 a month compared to the years following the legislative changes. Factors behind this surge of new applications may be due to the wait periods of 5 years being met after the 2012 changes; applicants convicted of indictable offences are also approaching eligibility and the reduced wait times for Ontario/British Columbia applicants following the recent court decisions.

Processing timeframes

In 2017-2018, the average processing time for an accepted record suspension application was 162 days for summary files and 351 days for indictable files where the final decision was to order a record suspension, and 490 days for those where the final decision was to refuse to order a record suspension. The average processing time for an accepted pardon application was 20 days for pardon issued and 121.5 days for pardon granted. There were no pardons denied during this specific timeframe. Service standards were fully met for 99.95% of these files.

Record Suspension Decisions

1. Number of applications for record suspensions made in 2017-2018 in respect of offences referred to in each of paragraphs 4(1)(a) and (b)

As per paragraph 4.1(1)(a) of the CRA the Board may order that an applicant’s record in respect of an offence be suspended if the Board is satisfied that during the applicable period, the applicant has been of good conduct and has not been convicted of an offence under an Act of Parliament. Pursuant to paragraph 4.1(1)(b), the Board may order that an applicant’s record in respect of an offence be suspended if the Board is satisfied that during the applicable period, the applicant has been of good conduct and it would provide them with a measurable benefit, sustain their rehabilitation into society as a law abiding citizen and would not bring the administration of justice into disrepute. The applicant must clearly describe how receiving a record suspension would provide them with a measurable benefit and sustain their rehabilitation into society as a law abiding citizen.

Number of applications for a record suspension accepted in 2017-2018 in respect of offences referred to in paragraphs 4(1)(a) and (b)

*Summary conviction offences are considered less serious than indictable offences because they are punishable by shorter prison sentences and smaller fines. The maximum penalty for a summary conviction offence is a sentence of six months of imprisonment, a fine of $5,000 or both.

**An indictable conviction offence is an offence which can only be tried on an indictment after a preliminary hearing to determine whether there is a prima facie case to answer.

2. Number of record suspensions that the Board ordered or refused to order in 2017-2018 in respect of offences referred to in paragraphs 4(1)(a) and (b) 

* This includes applications received in previous fiscal years as well as some applications from 2017-18.

3. Number of applications for pardons made in 2017-2018 in respect of offences referred to in each of paragraphs 4(1)(a) and (b)

As per subsection 4.1(1) of the CRA^{Footnote 4} , the Board may grant a pardon for an offence prosecuted by indictment or a service offence referred to in subparagraph 4(a)(ii) if the Board is satisfied that the applicant, during the period of five years referred to in paragraph 4(a), has been of good conduct; and has not been convicted of an offence under an Act of Parliament or a regulation made under an Act of Parliament.

As per subsection 4.1(2) of the CRA^{Footnote 5}, a pardon for an offence punishable on summary conviction or a service offence referred to in subparagraph 4(b)(ii) shall be issued if the offender has not been convicted of an offence under an Act of Parliament or a regulation made under an Act of Parliament during the period of three years referred to in paragraph 4(b).

Number of applications for a pardon accepted in 2017-2018 in respect of offences referred to in paragraphs 4(1)(a) and (b)

4. Number of pardons that the Board issued, granted and/or denied in 2017-2018 in respect of offences referred to in paragraphs 4(1)(a) and (b)

5. Number of record suspensions ordered, pardon issued and granted in 2017-2018 categorized by the offence to which they relate

The numbers represent the offences for which a record suspension was ordered, pardon issued or granted and not the total number of record suspensions ordered, pardons issued and granted. One record suspended/pardon may have multiple offences. These statistics only indicate how many files for each specific offence were issued/granted/ordered.

6. Number of record suspensions ordered by the province/territory of residence of the applicant

7. Number of pardons issued by the province/territory of residence of the applicant

8. Number of pardons granted by the province/territory of residence of the applicant

Other information required by the Minister

Pursuant to paragraph 11(1)(d) of the CRA the Board shall, within three months after the end of each fiscal year, submit to the Minister a report on the number of applications for record suspensions made; ordered or refused to order; and the number of record suspensions ordered, categorized by the offence to which they relate and the province or territory of residence. The Minister may request additional information during that same covering period. There were no additional requests for information required by the Minister during this review period.