Canadian Pardons

All Canadian criminal offences can be pardoned except for the few that carry a life or indeterminate sentence. As a rule, a pardoned criminal record will not show up on background checks. There is one exception to this rule, but it is relatively limited in scope.

Criminal records are maintained by the Canadian Police Information Centre (CPIC), an office of the RCMP. A pardoned criminal record is removed from the database that is accessible to criminal record checks. But if you have committed a sex-based offence (sexual assault, possession of child pornography, and so on), your conviction will remain flagged in the database in case you request a “vulnerable sector” background check.

Vulnerable sector checks are performed when you request a background check for the purpose of working with vulnerable persons, which the Criminal Records Act defines as people who “because of age, a disability, or other circumstances, whether temporary or permanent are (a) in a position of dependence on others or (b) are otherwise at a greater risk than the general population of being harmed by a person in a position or authority or trust relative to them”. Thus, a vulnerable sector check is performed mainly when the purpose of a criminal record check is to work with children, ill or disabled people, or senior citizens. The laws of some provinces, such as British Columbia, actually require institutions dealing with vulnerable people (schools, hospices etc) to have background checks done for potential employees or volunteers; even where this is not required by law, you can expect that such institutions will have this requirement.

If you wish to work with vulnerable people and are requested to get a background check done, the CPIC will perform a vulnerable sector check. In plain terms, this means that it will retrieve information on any convictions flagged as sexual, and disclose it on the criminal record check, despite any pardons that were granted. It should be stressed, however, that if you request a background check for a purpose other than working with vulnerable people, the RCMP cannot disclose a pardoned criminal record, even for a sexual conviction. So, if you apply for a job as a camp counsellor, your pardoned sex offence will show up. But if you apply to work in a bank, the information about the conviction will not be revealed.

Tags: criminal record, criminal record check, pardon, Pardons, record check

On 15 February, Parliament passed Bill S-6, the “Serious Time for the Most Serious Crime Act”. The amendment to the Criminal Code is another law in a series of attempts to make Canadian criminal justice tougher and concerns a provision in the Code known as the “faint hope clause”. This clause, specifically Section 745.6 (1) of the Criminal Code, provides that a person convicted of murder or high treason and sentenced to more than 15 years’ imprisonment may apply to the Chief Justice of the province in which they were convicted for early parole. In practice, this means that if, for example, a person was convicted of first-degree murder and given the mandatory minimum sentence of life imprisonment with no chance for parole for 25 years, they may apply for release to a provincial court after only 15 years. The judge reviewing the case may decide to pass it on to a jury, which may recommend the early release to the Parole Board of Canada, which will make the final decision.

Bill S-6 ends this provision completely, if not quite retroactively:

• Those who are convicted of murder or treason after the bill comes into force will no longer be able to apply for early parole after 15 years. They will simply have to serve their full sentence.

• Those who were convicted before the amendment comes into force will still be able to use the faint-hope clause, but will face more stringent conditions for doing so.

Now, how does this concern pardons for criminal records? It does not directly, as no conviction carrying a life sentence can be pardoned; it’s the principle behind the change in the law that gets me thinking. Among the different changes to the law that the Conservatives have been pressing for since coming to power, both harsher sentences and more difficult pardon conditions have been tabled, and with both Bill C-23B and a sharp increase in the price of pardons being currently considered, there is as yet no end to this. It would seem to me that the Government is treating two separate concepts, a sentence and a pardon, as if they both related to the punishment of an offender. Namely, while the sentence itself directly punishes the crime, making it more difficult to pardon a criminal record contributes further to the punitive effect of the law. In my opinion, this is a fallacious approach. It would be far better to make just and substantial punishments for each offence, as the Government did in the case of murder with Bill S-6, and then, once the sentence has been served, to consider the punishment to be fulfilled and help a person re-integrate into society.

The whole hype over pardons started a year ago, when information was made public that hockey coach Graham James, who had been convicted in 1997 of sexually abusing a number of young players, had received a pardon in 2007. This aroused the Prime Minister’s fury and prompted him to target pardons in addition to toughening the Criminal Code. But James’ case is an extreme one and the crimes of people like him should not prevent all convicted Canadians, some of whom have committed nothing more serious than petty theft and have long re-integrated into society from being rehabilitated after they have paid their debt to society. Perhaps more shocking than the pardon James received is the fact that James served only two years in jail for his crimes. If he had received a serious sentence, let’s say seven to ten years, and had to serve it in full, it would have punished him more substantially than not receiving a pardon for his criminal record.

Tags: criminal record, pardon

As we recently reported, a proposal by the Government to raise the cost of applying for a pardon to $631 – after it has only recently been raised from $50 to $150 – was submitted for public consultation. So far, public reactions to the proposal have been divided – and passionate. It seems that this issue is splitting Canadians into two ideologically-based groups:

• People who think that taxpayers should not foot the bill for pardoning a criminal record: whoever commits a crime should have to pay for their own rehabilitation.

• People who think that a person deserves a second chance and that if it is too difficult or expensive to get a pardon for a criminal record, a person will never be rehabilitated.

The whole discussion is part of the wider issue of whether the pardons process in Canada is strict enough as it is or whether it should be made more difficult to get pardons. The fact that the price of pardons is under debate at the same time as the general requirements for pardoning a criminal record (as per Bill C-23B) shows how deeply set the Government is on this issue.

But what would raising the price of getting a pardon achieve? The Government claims it would offset the cost to the taxpayer: pardons are “not an entitlement”, and the offender should have to pay for it, not the public. But is this really fair? One of the uses of taxpayers’ money is to administer the justice system. Courts, prisons and police cost far more than pardons, and they are all paid for from the public purse. Furthermore, raising the price of pardons would deny them to some people simply because they cannot afford it (likely because they cannot get a job due to the very criminal record that a pardon would seal), without any regard to how deserving that person is of getting a pardon. Others will be stumped by the increased restrictions and bureaucracy that Bill-C23B plans to bring about. If otherwise law-abiding people are unable to get pardons on such technicalities, they will not be able to get many jobs or participate in other activities, because of a long-atoned for mistake. We can expect that they will resort to crime and other anti-social behaviour in order to deal with it, and society will pay more in the long run.

While the Government’s proposal to raise the price of pardoning criminal records has met with some support, so far there has also been a strong public backlash against the proposal, and both the Liberal Party and the NDP have criticized it. Perhaps the Conservatives will see reason and not let ideological and populist reasons implement a counterproductive policy. The public consultation ended on 27 February, so the outcome may be seen very soon.

Tags: criminal record, pardon

The necessity of getting all the necessary clearance well ahead of a trip to the United States is demonstrated by what recently happened to coach Lorene Hatelt. Hatelt, a resident of Brampton, Ontario, is an eight-time world champion para-triathlete and paralympic gold medalist. In January, she was preparing to coach junior athletes from Ontario in Florida during the March Break. One requirement for this was to get a “vulnerable” police record check. She applied with Peel Regional Police, expecting to get clearance within two months. It was not the first time Hatelt had gone through a background check, which would normally come back clean in a matter of days.

However, recent changes to the way in which the RCMP handles background checks means that she may not be able to travel in time for the March Break event. Because some people with criminal records had changed their name in order to get a clean background check, a policy was adopted whereby if an applicant`s birth date matched that of a person in the criminal record database, they would be required to provide fingerprints. Hatelt`s fingerprints were taken on 28 January; Because Peel Regional Police does not have a fingerprint scanner, her prints had to be mailed to Ottawa. In such cases, it can take up to 120 days before a check is returned. On the other hand, applicants who live or work in Halton Region fall under the jurisdiction of Halton Regional Police, the only department in Canada with a Real-Time ID Scanner, which electronically connects your fingerprints to the RCMP database. In this case, the results come back within minutes!

This is why it’s more important than ever to get a criminal record check or US entry waiver application done well ahead of the planned travel date. Under the current backlog, the RCMP may not come around to processing a background check before it`s time to take the trip.

Tags: clear criminal record, criminal record, us entry waiver

The CBC website reported today that out of all of the pardoned offences in the last 10 years, DUIs top the list by over 36,000. There are many mixed opinions about this issue, and spokespeople for MADD have spoken out about it. 

“If a pardon is going to assist people who are committed to dealing with their drinking problem, to get assessed, get into treatment and stay clear of impaired driving, we would be in favour of it.” – Robert Solomon – Director of legal policy for MADD

The first 10 pardoned crimes on the list mostly considered to be non-violent in nature and include:

• Theft
• Mischief
• Breach of the Controlled Drugs and Substances Act
• Failure to Appear (for court appointments, etc.)

Number two on the list is Assault, which is generally only considered to be a violent crime if a dangerous or deadly weapon is used. The difference in the numbers of granted pardons between these non-violent crimes and the more violent ones is huge.

It will be interesting to see how Bill C-23B changes these numbers when the Parole Board of Canada is given more discretion as to who is granted a pardon. They will be looking at each case separately once the bill is passed, and this change will affect how many people are granted pardons each year.

Tags: Bill C-23B, criminal pardons in Canada, DUI, MADD, pardoned, Parole Board of Canada

The Globe and Mail reported yesterday that the Conservative government is already planning another pardon fee increase, just two months after tripling the cost of a pardon from $50 to $150.

The proposed fee increase will more than quadruple the $150 fee, and will set the cost of a pardon at approximately $631. The government has announced that they will no longer subsidize criminals seeking to clean up the public record of their offences.

After receiving criticism from the Bloc Quebecois Party about the Harper administration’s “soft on crime” attitude, Public Safety Minister Vic Toews made this statement: “People aren’t entitled to pardons, that’s something society decides.“That’s why our government is proposing that criminals pay for the administrative costs of applying for pardons.”

The price increase has to go through a consultation process, after which the government will proceed to put their plan into action.

The new pricing will not be retroactive however, and any pardon application submitted before the cost increase is implemented by the government will not be affected.

Tags: apply for pardon, get a pardon, government, pardon, Stephen Harper

So far, we have said much about the need for Canadians with a criminal record to get a US travel waiver before travelling to the USA. The rules in this regard are firm and are strictly enforced. This begs the question of whether this situation is unique for the United States, or if Canada reciprocates in the case of American (and other foreign) ex-cons who want to come over here. The answer is that while Canada’s rules are slightly more lenient, convicted foreigners are also at a significant disadvantage when attempting to travel here.
The equivalent rule that applies in Canada is that a foreigner can be turned away at the border if they have committed (or if border guards have reasonable grounds to believe that they will commit) a crime. If the crime was committed in Canada, a Canadian pardon, granted as usual by the Parole Board of Canada, will remove travel ineligibility. If the traveller committed the crime outside Canada, they will be admissible to Canada after being rehabilitated. This can be done in two ways:
• By applying for rehabilitation (similar to a US entry waiver) at a Canadian consular office or port of entry. You typically become eligible for this after 5 years have passed since the completion of your sentence or, depending on the crime, since you committed it. Sometimes, special permission can be given to travel to Canada.

• If at least 10 years have passed since your sentence was completed (or since the actual commission of the offence, in the case of offences that would be punishable by less than 10 years in Canada), you may be automatically deemed rehabilitated. If the offences were equivalent to two or more Canadian summary offences (having committed only one may not be a barrier to travel), you could be considered rehabilitated after at least five years have passed from when the sentence ended. However, there is no guarantee that such a person would automatically be considered rehabilitated.

As is the case with American border guards, those in Canada may have access to information collected by the Department of Public Safety (our equivalent of the US Department of Homeland Security), so it is not worth trying your luck and attempting to cross when ineligible.

Apparently, “homeland security” is fast becoming a global issue and borders are not as open as they used to be, all the more reason to make every effort to have past convictions expunged.

Tags: travel to us, US criminal waiver, us entry waiver, US Homeland Security, US travel waiver, waiver application

Caroline Douglas, a spokeswoman for the Parole Board of Canada, has announced in an interview that they will be making some changes because of Bill C-23. These changes are necessary, as the new legislation calls for more due diligence in the pardons process.

The changes outlined by Douglas in the interview:

• The process will be lengthier.
• Senior pardon officers may need to access psychological tools to analyze the conduct, the nature, the gravity and duration of the offence before determining whether to recommend suspension of a record in some situations.
• The Parole Board of Canada has entered into new, information-sharing arrangements with Interpol, the Canada Border Services Agency and Citizenship and Immigration.
• People in the Board known as “pardon officers” will be given data mining courses that will teach them how to glean information from social networking sites such as Facebook and Twitter. “We will examine these involvements in such social networks to help us understand and explain [pardon applicants'] behavior and attitudes individually and within a network of members, and to make sure they are law-abiding citizens before going ahead with a recommendation to grant an applicant with a pardon.” (Quote taken from internal notes made within the Parole Board of Canada)
•  Although the Board recently increased pardons fees from $50 to $150, they are looking at making further increases in the cost. “The $150 certainly is going to help, but it’s not going to cover all of the costs involved with running the program.” (Caroline Douglas)

Tags: Bill C-23, pardon, Pardons, pardons fees, pardons process, Parole Board of Canada

The pardons process in America is very simple. For felonies, the applicant has to go to the President to get a pardon. Unfortunately, American pardons seem to be almost purely political and quite a few presidents have only granted pardons when they were coming to the end of their term. Election time is very important to presidents, and they understandably want to be re-elected!

However, getting a felony pardoned in America is a long and tedious journey which usually ends in disappointment for many people. There are 330 million people in the USA, and one can only imagine how many of those people have applied for a pardon over the years!

One of the changes that will come with Bill C-23B is that the Parole Board of Canada will also have one person in charge of granting pardons. Unlike America, this one person will not be worried about elections, popularity and support, so Canadians don’t have to worry about that.

Canada doesn’t have 330 million people, but we do have a population of 30 million. That is still a big number, and there will be a high volume of applications for pardons in the years to come. The question is, can that one person process all of those applications? Probably not; like America, we will have a recommendation process where someone will recommend certain applications to be granted.

This change will certainly slow the pardons process down quite a bit, and it will also move Canada closer to the US when it comes to granting pardons and clearing criminal records. However, as long as the granting authority does not change over to someone in political power, it will still be easier to get a pardon in Canada than in the US.

Tags: criminal record, pardon, Pardons, pardons process

It turns out that it will take longer to see the results of the parliamentary debate on Bill C-23B, which is intended to tighten the Canadian pardon process by renaming pardons “record suspensions” and preventing child sex offenders and those with three or more convictions for indictable offences (felonies) for ever receiving one. On 14 December, Opposition MPs staged a filibuster (using obstructive behaviour to block a bill) in order to block the passage of the Conservative Government’s get-tough-on-crime legislation. Moreover, on 16 December, Parliament adjourned for the winter holidays until January 31, meaning that people who are eligible to apply for a pardon will have that much more time to do so under current rules before they are changed.

According to Liberal MP Mark Holland, even the Government sees that the bill has problems; his party is not against tougher sanctions for crime and barring certain offenders from receiving pardons, but wants the law clarified so as not to prevent people who have committed a “hybrid offence” (a crime that can be charged as both an indictable offence and a summary or less serious offence from being pardoned. He expressed concern that “If you take a young mother who writes bad cheques for groceries, she would never have a chance for a pardon.”

But Conservative minister Diane Finley criticized the Liberals for blocking sensible legislation: “We want to make sure that we are not supporting the criminals on this, we are supporting the victims.” She agrees that there are parts of the proposal that deserve more discussion, and accuses the Liberals of blocking the discussion.

So we will have to wait for a while yet to see if the law will be amended to be as strict as originally planned. The rules for getting a pardon are relatively lenient, and will remain so for the foreseeable future. When Parliament re-convenes in the New Year, however, Bill C-23B is set to be on top of the agenda.

Tags: apply for pardon, Bill C-23, canadian pardon process, criminal record