You will have a criminal record if you have ever been convicted of a criminal offence. This record is stored in a database that is maintained by the Royal Canadian Mounted Police. A criminal record will contain the following information:
- All criminal convictions and sentences (excluding discharges that have been removed from your record);
- Your fingerprints; and
- Your DNA if an order was made by a sentencing to judge for a sample to be added to your record.
A criminal record may have very serious consequences on your life long after you have completed your sentence. For example, a criminal record may limit your employability or your ability to travel internationally. Fortunately, if you have been convicted of a criminal offence, you may apply to the Parole Board of Canada for a record suspension in respect of that offence. Criminal record suspensions were formerly called “pardons” and are sometimes still called that. A record suspension is not automatic. When you apply for a criminal record suspension, you apply to have the record of a particular conviction (or convictions) suspended. Consequently, a record suspension is not an “all or nothing” affair. It is possible to receive a record suspension for some of the convictions on your criminal record. For example, it may be possible to have older convictions on your record suspended even if you have recent convictions. It may also be possible to have eligible conviction on your record suspended even if certain convictions on your record are ineligible for suspension.
When can I apply for a record suspension?
You are only eligible to apply for a record suspension of a conviction if the sentence for that conviction has concluded. This means that you cannot apply until you have concluded a term of imprisonment, completed a period of probation and/or payed any outstanding fines. Once the sentence has concluded, there is a waiting period of ten years for indictable offences and five years for summary conviction offences before you are eligible to apply for a suspension. The following examples illustrate how long you will have to wait before you are eligible to apply for a record suspension:
- You were convicted of theft under $5000 on April 1, 2015 and paid your fine in full on June 15, 2015. You will be eligible to apply for a suspension on June 15, 2020 (five years after you paid the fine).
- You were charged with assault causing bodily harm and the Crown Prosecutor proceeded by indictment. You were convicted on February 1, 2014 and sentenced to 90 days imprisonment and 18 months of probation once released. You were released from jail on April 15, 2014 and began probation that day. You completed your period of probation 18 months later on October 15, 2015. You will be eligible to apply for a record suspension on October 15, 2025 (ten years after you completed probation).
How much does a record suspension cost? As of December 2018, the cost of applying for a record suspension is $631. Up to date information about the costs of a record suspension are available on the Government of Canada’s website.
What does a criminal record suspension do?
A record suspension does not “erase” your criminal record. Instead, your suspended criminal record is removed from the RCMP database and placed in a separate database with other suspended records. Any “disqualification or obligations” that were imposed on you as a result of having that criminal record will be removed. A suspended record, including any information about the existence of the record, cannot be disclosed to anyone (including the police) unless the Minister of Public Safety approves the disclosure. It is important to remember that even if you have received a record suspension, your criminal record will continue to exist. In certain circumstances, the Minister of Public Safety may approve the disclosure of a suspended record if:
- The Minister determines that it is in the interests of the “administration of justice” to disclose the record. This is a very high standard that will only be met in the most serious circumstances;
- The Minister determines that disclosure is required for a purpose related to the “safety or security of Canada.” Once again, this is an extremely high standard;
- The name, date and last known address of a person who has received a suspension may be disclosed if that person’s fingerprints are found at the scene of a crime; and
- The name, date and last known address of a person who has received a suspension may be disclosed if it is necessary to identify a deceased body.
What if I was discharged instead of convicted?
If, instead of a conviction, you received a conditional or absolute discharge, you do not need to apply for a record suspension. Any record of the discharge will be removed automatically from the RCMP database:
- After one year from the date of an absolute discharge; or
- After three years from the date that the conditions of a conditional discharge were satisfied.
What about my fingerprints and/or DNA?
If you are charged with a criminal offence, your fingerprints will be taken by the arresting police service. If you are convicted, those fingerprints will be attached to your criminal record and stored in the RCMP database. Even if your criminal record is suspended, your fingerprints may still be used to identify a deceased body or to identify fingerprints at a crime scene. Some municipal services will keep a local database of fingerprints. There may be a procedure for requesting the removal of your fingerprints from a local database if you have a received a record suspension. If you are granted a record suspension for a conviction in which a DNA order was made, your sample will be removed from the national DNA data bank and stored in a separate data bank. The existence of the DNA sample will not be disclosed and the sample cannot be used for forensic DNA analysis.
Are there any offence that are ineligible for a record suspension?
You are ineligible to receive a record suspension for any convictions of an offence referred to in Schedule 1 of the Criminal Records Act. Virtually all of these offences are sexual offences in which the victim is a young person. However, you may be eligible to receive a record suspension for a Schedule 1 offence if:
- You were not in a position of trust or authority towards the victim and victim was not in a relationship of dependency with you;
- You did not use, threaten to use or attempt to use violence, intimidation or coercion in relation to the victim; and
- You were not more than five years older than the victim.
In addition, you are ineligible to receive a record suspension if you have been convicted or more than three offences that were prosecuted by indictment and for which you were sentenced to two or more years of imprisonment for each of the offences.
Will my application for a record suspension be granted?
The Board will only grant an application for a record suspension if the Board is satisfied that:
- You have been of “good conduct.” This means that you must not have been convicted of a criminal offence during the five or ten year waiting period;
- In the case of an indictable offence, a record suspension would benefit you and would sustain your “rehabilitation in society as a law-abiding citizen”;
- In the case of an indictable offence, granting the record suspension would not “bring the administration of justice into disrepute.” The Board will consider a number of factors at this stage, including the seriousness and circumstance of the offence and your criminal history.
What if my application is refused?
Before your application is refused, the Board will notify you in writing that they “propose to refuse to order a record suspension.” The purpose of this notice is to allow you to make additional representations in writing or orally (if approved by the Board) that you believe are relevant. The Board will consider your representations before making its final decision. If your application is refused, you are entitled to disclosure of the Board’s reasons. If your application is refused, you are not eligible to re-apply for a record suspension for a minimum of one year after the date of the refusal.
Can a record suspension be revoked?
If a record suspension is revoked, your criminal record will be removed from the separate database and returned to the main criminal record database. It will be as if you had never received the record suspension in the first place. There are a number of circumstances where the Board has the discretion about whether or not to revoke a record suspension. If the Board is considering revoking your record suspension, you will be provided with notice and give the opportunity to make representations. The Board will consider you representation before making its final decision. The circumstance in which the board may consider revoking a record suspension are:
- If you are convicted of an offence that is punishable on summary conviction;
- If the Board receives evidence that you are “no longer of good conduct.”; and
- If you made “false or deceptive” statements in your application for a record suspension.
In certain circumstance, a criminal record suspension will be automatically revoked. The Board has no discretion in these situations and you will not be permitted to make representations. These situations are:
- If you are convicted of an offence that is prosecuted by way of indictment; and
- If the Board determines that you were ineligible to apply for the record suspension. For example, if it is discovered that you were mistakenly granted a record suspension for a Schedule 1 offence (these offences are ineligible for a record suspension), the suspension will be revoked.
Do I need to hire a lawyer?
Requesting a record suspension is a straightforward process that most people do themselves. The Government of Canada has a very helpful step-by-step guide and other information on their website. If you have any specific questions that are not addressed by the Government of Canada website, a lawyer at Pringle Chivers Sparks Teskey can give you more information about criminal record suspensions. Contact us for advice.