Prior to 2012, if you had a criminal record, you were eligible, at some point in time, to apply for a pardon. However, in 2012, significant amendments were made to the Criminal Records Act which resulted in important changes with respect to the possibilities of rehabilitating a criminal record.
A Change in Terminology and in the Waiting Period
First of all, the terminology was changed. As of 2012, the Parole Board of Canada no longer granted ‘‘pardons’’. In fact, the definition of ‘‘pardon’’ was repealed. In its place, « record suspension» became the new term that applied. In the law, the fact that a record suspension is granted by the Parole Board is evidence of the fact that the applicant is of good conduct and that the conviction should no longer reflect poorly on his or her character.
A second major change in the system of pardons, now known as record suspensions, was the waiting period necessary before a convicted criminal could apply for a record suspension. Previously, if a person had been convicted of a summary conviction offence, he would have to wait 3 years from the end of his sentence. So, for example, if a person was sentenced to 90 days in jail and left jail on January 1st, 2015, he would have had to wait until January 1st, 2018 to apply for his pardon. Now, he would have to wait until January 1st, 2020 to apply for a record suspension. If, on the other hand, a person was convicted of an indictable offence, he would have to wait 10 years instead of 5 years to apply for a record suspension. So, for example, that same person, convicted of an indictable offence whose jail sentence terminated January 1st, 2015, would have to wait until January 1st, 2025 to apply for a record suspension.
Protecting an Individual's Access to Employment Opportunities
One of the primary purposes of record suspensions is that someone with a criminal conviction, but whose record has been suspended, should not be penalized or disadvantaged in his search for employment. In article 8 of the Criminal Records Act, there is a prohibition against asking questions on a job application form that would require the job applicant to disclose a conviction for which a record suspension was granted. Furthermore, under the Quebec Charter of Human Rights and Freedoms, under article 18.2, no one may dismiss, refuse to hire or otherwise penalize a person in his employment owing to the mere fact that he was convicted of a criminal offence if a person had obtained a pardon for the offence. Therefore, both the federal and provincial governments agree on the positive effect that a record suspension should have for any person’s ability to find employment.
One major problem, however, with the law as modified in 2012 is that it has a retroactive effect. In other words, someone who was convicted in 2011 for an indictable offence thinking he only had to wait 5 years from the end of his sentence to request a pardon now must wait 10 years from the end of his sentence to obtain a record suspension. The retroactive application of this change to the Criminal Records Act is of questionable constitutionality. Currently, there is at least one legal challenge to the constitutionality of this retroactivity being pursued in the province of Ontario. Eventually, we believe the Courts will render a decision and in all likelihood the case will wind its way to the Supreme Court, which will have to decide upon whether it is constitutional to apply this significant change retroactively to people convicted prior to the 2012 changes to the Criminal Records Act.
Franco Tamburro, Attorney-at-Law
Alepin Gauthier Avocats inc.