Canada stiffens policy on sealing of criminal records – but it still looks pretty liberal from here

A couple of news items about an increase in clemency applications in Canada made me curious to learn more about how restoration of rights works in our Northern neighbor.

Canada has long had a policy of virtually automatic sealing of criminal records through what is known as a “record suspension” (before 2012, called a “pardon”).  The Criminal Records Act (CRA) makes record suspension available from the Parole Board of Canada for any offense except sex crimes involving children, and to any individual except those convicted of multiple serious crimes, after waiting periods of five years from completion of sentence for “summary” offenses and 10 years for “indictable” offenses.  (Prior to 2012 the waiting periods were three and five years.)  Non-conviction records may be purged sooner.

Once a record has been suspended, all information pertaining to convictions is taken out of the Canadian Police Information Centre and may not be disclosed without permission from the Minister of Public Safety.  The CRA states that no employment application form within the federal public service may ask any question that would require an applicant to disclose a conviction.  It is unlawful under Section 3 of the Canadian Human Rights Act to discriminate in employment or housing or union membership against anyone based upon “an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.”

In 2012-13 the PBC ordered more than 6600 pardons and records suspensions, 97% of all applications received.  (According to the PBC website, since 1970 more than 460,000 Canadians have received pardons and record suspensions. “96 percent of these are still in force, indicating that the vast majority of pardon/record suspension recipients remain crime-free in the community.”)

The 2012 amendment of the CRA to extend the eligibility waiting periods has resulted in an increase in applications for the extraordinary remedy of “clemency,” which has higher standards but no eligibility waiting period.  Clemency, formally known as the “Royal Prerogative of Mercy” (RPM), may be granted in federal cases by the Governor General or the Governor in Council (i.e. Federal Cabinet), and applications are staffed by the PBC.   Clemency is intended “only for rare cases in which considerations of justice, humanity and compassion override the normal administration of justice.” All other avenues of relief must have been exhausted, and there must be must be “clear and strong evidence of injustice or undue hardship.”  In contrast to the thousands of ordinary records suspensions granted each year in Canada, there are only a handful of these extraordinary clemency grants.  In 2012 there were 52 RPM applications and only 12 grants.

The PBC charges $631 to process a records suspension application (its website warns that there may be additional administrative fees) and suspension orders are executed by the RCMP.  It generally takes from six months to one year to process an application, a bit longer if an application has previously been denied. There is no need to apply for a records suspension for non-conviction records, which are purged by the RCMP upon request absent compelling law enforcement reasons. The primary criterion for relief is that a person must not have committed any further crimes, and if denied an applicant may reapply after a year.  If a person whose record has been suspended commits another crime, the suspension order may be revoked.

The PBC website emphasizes that there is no advantage to using the services of third party providers that hold themselves out as able to expedite record suspension applications or even grant them.  And there appear to be a number of websites that use official-looking symbols and visuals, and promise an inside track for using their services.  Judging from the tenor and frequency of warnings on the PBC website, “suspension mills” are the source of considerable official annoyance.

It is nor clear whether a record suspension will be sufficient to enable a person with a Canadian conviction to enter the United States: while no record will ordinarily show up in a check of RCMP databases, U.S. authorities have access to other law enforcement databases and there is no relief from inadmissibility in UJ.S. immigration law.  While Canada has a strict policy of not allowing a person with a U.S. criminal record to enter Canada even for visiting purposes, this bar may be overcome by a showing that a person is “rehabilitated.”  For minor offenses a person may be “deemed rehabilitated” after a waiting period, but those convicted of more serious offenses must apply to Canadian immigration authorities through the closest consulate.

In summary, the Canadian policy of limiting public access to criminal records appears to reflect the European and British approach to privacy of personal data.   There is not a single U.S. jurisdiction that offers convicted persons nearly as much opportunity to started over with a clean slate.

Margaret Love

Former U.S. Pardon Attorney Margaret Love represents applicants for executive clemency in her private practice in Washington, D.C.. An author of Collateral Consequences of Criminal Convictions (NACDL/West), she created and maintains the NACDL Restoration of Rights Resource and serves on the enactment committee of the Uniform Collateral Consequences of Conviction Act.

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