In the aftermath of Ottawa’s Bill-C10 being passed,  it makes sense why Ottawa is fully in support of MP Parm Gill’s proposed Bill C-394. The bill, if passed, would make recruitment efforts for any type of criminal organization a criminal offence. Anyone convicted under the law could face up to five years in prison, and at minimum, anyone convicted of recruiting someone under the age of 18 must serve at least six months.

While a private member’s bill, rare to receive the approval needed to enter as new law, in this case,  Bill C-394 fits right in with the government’s  Safe Streets and Communities Act legislation (Bill C-10), it might actually receive royal assent within a year.

In addition to the already implemented Bill C-10 which is expected to raise the number of individuals behind bars, this new proposal will also see a further increase in individuals being charged and convicted.

While this does not change the new record suspension process, more individuals need to be aware of their possibilities in getting a criminal record sealed.

It’s cases such as these, which receive immense public attention, that set the Conservative government into proposing the changes in crime-related laws, especially those governing criminal records and Canadian pardons. They wanted to come down hard on crime.

And so, Bill-C10 was passed on March 13, 2012. While the new legislation does indeed come down hard on serious offenders, there is enough leeway in the new guidelines which account for the possibility of Canadians being able to put their criminal history in the past.

Statistics show that almost 12% of the Canadian population has a criminal record. While the media emphasizes on crime being horrific, shocking, and against the entire good of the public, it’s hard to distinguish the line between the general public and criminals. Many citizens get booked on account of trivial offences such as impaired driving, and many who have been charged and acquitted, or had their charged withdrawn still have a record.

For citizens who wish to pursue a lifestyle without the burden of a criminal background dragging them down and limiting their opportunities, the new legislation allows them the ability to suspend their criminal record. Being “pardoned” is no longer a possibility as the new legal terminology replaces “pardon” with “record suspension”.

In the case of Graham James, however, as he is serving his sentence for fresh convictions for sexual crimes against minors,  he will no longer be able to get a pardon again. The new laws do come down hard – on those who offend sexually against children.  Otherwise, those with a criminal record can apply for a record suspension and move on with their life.

Don’t let the news that you can’t get a ‘pardon’ stop you from believing that you can put your criminal record behind you, it is still possible.

In rushing the bill to be passed, the government overlooked a number of issues that critics have highlighted. As a consequence to the bill being passed, the government now intends to take their time in being able to introduce these new laws into the system.

One main change to the law system is that regarding the pardons. Those who have criminal records could previously apply for a pardon and clear their criminal record upon showing they are law-abiding citizens. With Bill C-10, pardons no longer exist; they are now replaced with what are called “record suspensions”.

A record suspension differs from a pardon in a few ways. The purpose behind this change is reflected in the whole purpose of the new legislation: to be tough on crime. Thereby, the government was of the opinion that a pardon bestows too much forgiveness to “criminals”, and a record suspension provides a conditional corridor in which those with criminal records can have their records suspended yet face the possibility of the suspension being removed if they are believed to be unworthy of it.

The biggest difference in the two systems is the eligibility periods applicable to those with criminal records. Those with summary convictions had to wait 3 years after their sentence was complete before they were able to apply for a pardon. Now, they must wait 5 years to be eligible for a record suspension. Similarly, those with indictable offences had to wait 5 years under pardon law, and must wait 10 years under record suspension law.

Many other changes have been implemented in order to make the process much more difficult, for example added formalities, extra documentation, and higher costs.

Unfortunately for most, while the government has spoken about working on each new aspect of the bill slowly and thoroughly, the system of record suspensions take place from the passing of the bill. The Parole Board of Canada has already upgraded their system with the new protocol and paperwork required for the record suspension process. All applications that had been submitted to the National Parole Board before the bill was passed will remain under the pardon system if they are done completely and accurately. All applications submitted after March 14 2012 will be processed under record suspension law.

Let us therefore briefly review what the Government wishes to do. Officially, pardons are to be replaced with what the conservatives are referring to as “record suspensions”. A record suspension will work within the framework of existing pardon legislation and will serve the same purpose – to seal a criminal record. But getting it will be more difficult. Specifically:

• The ineligibility period will be lengthened to 5 years after completing your sentence for summary offences, up from the current 3, and from 5 to 10 years for all indictable offences.

• Anyone who commits 3 or more indictable offences will not be able to get a record suspension, a particularly severe measure when you consider that one criminal act often involves committing that many specific offences.

• Whereas at present, pardons are always granted when eligibility criteria are met, record suspension applicants will be required to demonstrate that they have been rehabilitated and the Parole Board will have the discretion to deny a record suspension based on more arbitrary criteria relating to how the offence was committed. On top of that, record suspensions will not be available to particularly serious offenders or to anyone who commits a sexual offence against a child.

This literally means that a critical point could come in a matter of months or even weeks. With the Conservatives in majority, it is no longer a question of “if”, but “when” pardons will be transformed into record suspensions. Once this legislation is passed, pardons will take longer to get, will become a much more arbitrary matter, and will be inaccessible to many. Applying for a pardon as soon as you possibly can is now your last chance to do so under the current rules.

Conservative Prime Minister Stephen Harper is hoping for re-election so that he can continue passing legislation in the same vein as that which his government has succeeded in adopting so far. According to an article published in the Toronto Star yesterday, the party plans to formally launch its platform today, but in the past two weeks, Harper has already spoken publicly about the changes his party plans to make if re-elected, which will be laid out in more detail today. Among his promises is that if he is re-elected, all outstanding crime-related bills that have not yet been passed, including Bill C-23B, will be combined into one blanket bill and will be passed within 100 days of re-election.

The election campaign is still young and we cannot be certain of its outcome. The main forerunners are Harper and his Liberal opponent, Michael Ignatieff, who does not agree with all of the conservatives’ measures regarding criminal justice. It could be a tight race, and Canadians need to be prepared for any outcome. A poll released two weeks ago suggests that 43% of Canadians support the Conservative party; if this still holds true come the day of the election, Harper could win a majority government. Should this happen, the Conservatives will take over most of the seats of the House of Commons, and the passage of criminal pardons reform will be a foregone conclusion. All the more reason to apply for a pardon now, before it becomes much harder to get.

Once a crime is pardoned, it is removed from the accessible database of the Canadian Police Information Centre (CPIC), the sole authority in Canada for keeping criminal records. While a record of the conviction still exists, it is kept separate and apart from the database used for criminal record checks; therefore, a person requesting a background check will not have a pardoned conviction show up on it (unless a vulnerable sector check is performed, which will reveal a pardoned violent or sexual offence), regardless of whether the check is performed for employment in a police department or a civilian company.

That being said, however, there are theoretically other ways for information on a conviction to reach a police department. If a person applies in the same force that arrested them, they may have access to arrest records or even know the person personally. Additionally, a force could theoretically have an agreement with the Minister of Public Safety to release pardoned criminal records to them, which would override the general rule that a pardoned conviction cannot be disclosed by the CPIC. But if, for example, a person from Vancouver moved to Fredericton and applied for a police job there, there is a better chance that the conviction would not be discovered. Another thing on an applicant’s side is that many provincial human rights codes prohibit discrimination on the basis of a pardoned conviction. In one Quebec case in the 1990s, a woman who had once been found guilty of a petty crime and had received a discharge for it was rejected by the Montreal police department. Although the woman ended up withdrawing her application, the court ruled in her favour on the basis of human rights legislation.

Therefore, a person who regrets their previous mistake and sincerely wishes to give something back to the community through a police career may still be able to do so. Achieving this already difficult goal may be more difficult for such a person, but it is not an impossible one. In any case, though, an essential first step without which nothing can be done is removing criminal record information through a pardon. No police department will hire someone with a live criminal record.

Obviously, no one is ever obliged to volunteer information on a past conviction; clearly, when a person has a pardon, if an employer requests a criminal record check, it will come back clean, and the conviction will not come to light through this channel. So let me state a little more precisely what is under scrutiny here. What if a person is directly asked by a prospective employer if they have ever been convicted of a crime? In the interest of honesty, some “experts” would advise admitting that one was convicted of such-and-such an offence, but stating that they have been pardoned. Let us see if this is good advice.

One thing behind the notion that one should disclose a past conviction to an employer when asked about it is the fact that in a number of Canadian provinces, human rights legislation prohibits discrimination based on a pardoned conviction. But while a human rights code may theoretically guarantee protection from discrimination, actually enforcing it can be difficult. An employer may not always respect the letter of the law or even know about it (if the legislation worked perfectly, people approaching retirement age would have 0% fear as regards to their chances of getting a new job, yet it is a known fact that despite age discrimination laws, they are routinely passed over for younger candidates). If a person feels they have been discriminated against, the burden of proof is on them to prove this to a human rights tribunal, a daunting and time-consuming task that most people do not have the luxury of undertaking. As regards ex-convicts, the sad truth is that practically nobody wants to hire them when they can hire someone with a crime-free background. So volunteering this information is like shooting yourself in the foot.

However, the beauty of having a pardon is that formally, one’s clean record is reinstated, and therefore, If one has a pardoned offence, there is no reason to ever have to admit it. First of all, in Ontario at least, most employers who bother to ask about prospective candidates’ criminal past formulate the question as “Have you ever been convicted of a criminal offence for which a pardon has not been granted?” The simple and honest answer to this question for a pardoned individual is “No”. If in the end, someone were to go as far as to ask a person directly if they have ever committed a crime (and they should not), anyone who has obtained a pardon for criminal record offences can truthfully answer: “I have a clean criminal record.” Whatever was the case in the past, at present, the record is officially clean, and nothing beyond that is anybody else’s business.

Here are a few situations that can lead to a person getting a conviction and thereby, a criminal record:

• One person insults another in a bar. A verbal altercation ensues, followed by the second person punching the instigator, which ultimately results in assault charges being laid on both of them.

• A 20-year-old man and a 14-year-old teenage girl are mutually attracted to each other. They end up having sex; her parents find out about this, are not happy about it, and press charges against the man for having sex with a person under the age of 16.

• A normally sober person has some alcohol at a party. Driving home, they crash their car into another. The police arrive, administer a breathalyser test, and lay charges for driving under the influence.

• A few joints of marijuana are found in somebody’s possession.

The point is, not all people who possess a criminal record in Canada are of the same ilk as Karla Homolka or Graham James. Many ordinary people have a minor conviction along with a criminal record in Canada to their name. This should serve to demonstrate the gross injustice that would be perpetrated if the government were to succeed in making pardons more difficult to get. Most convictions are for trifling offences that in many cases are relatively easy for an ordinary person to commit. Maintaining a criminal record in Canada for such convictions is not only harsh and counterproductive; it perpetuates the notion that we are a nation of heinous criminals, whereas, in fact, we are not.

When considering an application for a US entry waiver, officials will take into account the following factors above all others:

• The reasons why a person wishes to travel. These can generally be summarized under the simple alternatives of business, pleasure, or visiting family. It is important, however, to give specific details about this on one’s application: the degree to which these activities are of significance to the applicant (e.g. cross-border travel being vital to a person’s chosen profession) can influence the final decision.

• The nature and gravity of the offence committed. Obviously, the authorities will be likely to issue a waiver to a person who has only one shoplifting charge to their name, while denying it to a murderer out on parole.

• The risk an applicant presents to homeland security. A person with a history of involvement in a terrorist organization or a person who has not made an effort to lead a settled, honest life after serving their sentence is at a decided disadvantage.

• How long ago the offence was committed. A crime committed when very young will probably be shown more tolerance.

• Finally, the offender’s personal situation. Such factors as having a gravely ill family member on the other side of the border can count in favour of a US entry waiver applicant receiving permission to travel.

• An absolute discharge is like a “get out of jail free” card. You are let off with no further consequences and will no longer be involved with the justice system.

• A conditional discharge, on the other hand, puts you on probation for a period of up to three years. During that time, you must fulfill certain conditions imposed by the judge; if you fail to do so, or if you reoffend, you can be returned to court, convicted and sentenced for the original crime.

Since a person who has been given a discharge has not been convicted or sentenced, there is a widespread belief that they do not have a criminal record. But this is not quite true. According to the Criminal Records Act, an absolute discharge stays in the Canadian Police Information Centre database for a year, whereas a conditional discharge may be on the record for up to 3 years. That is a relatively short time, and it is therefore not necessary – or even possible – to get a pardon for a discharged conviction. But that’s not the whole story.

In the past, permanent criminal records were kept for discharges, and could be pardoned. Then, on 24 July 1992, the time limits for storing records described above kicked in. If you were granted your discharge after that date, it should not be in the criminal record database after the 1- to 3-year limit ends. If, on the other hand, you were given a discharge before 24 July 1992, the record may still be live; in that case, you may write to the RCMP and request that it be removed from the database.

Besides this, during the 1 to 3 years that the discharge was in the CPIC database, the information may have been shared with the US Department of Homeland Security, in which case it will remain there. It is ironic that a Canadian crime taken off the record in Canada may still be on the record in the USA. This is why, even in the case of a discharge, the only safe way for a convicted Canadian to cross the border is with a US entry waiver.