Record Suspensions and Criminal Record Checks

NSCLA CONFERENCE- 2013

Pardon Me?:

Record Suspensions and Criminal Record Checks

Lee Seshagiri

Nova Scotia Legal Aid – Halifax South

Record Suspensions

As of March 13, 2012, the Pardon System significantly changed. Clients can no longer obtain pardons; rather, they may apply for a record suspension. A record suspension removes the client’s records from CPIC and places it into a separate non-public database. If the individual re-offends the record may be pulled back into the regular CPIC system.

Eligibility for Record Suspension

The client must have completed all sentences and the necessary waiting period.
Completion of sentence includes:
Payment of all fines, surcharges, costs, restitution and compensation orders; and
All sentences of imprisonment, including parole, conditional sentences, probation.
Prohibition orders (ex: weapons) are excluded from the calculation.
Waiting Period:
For Summary Conviction Offences the waiting period is now 5 years after completion of sentence.
For Indictable Offences the waiting period is now 10 years after completion of sentence.
Record suspensions are NOT available for:
Convictions of Criminal Records Act Schedule 1 Offences (sexual offences involving children) subject to limited exceptions.
More than three (3) offences prosecuted by indictment, each with a prison sentence of two years or more.

Costs

It now costs $631.00 to have a record suspension application processed by the Parole Board.
There may be a number of additional costs required to put together an application, including costs for fingerprinting, costs for obtaining court records/photocopying, costs for obtaining local police records/photocopying.

Application Procedure

There is a 9 step process outlined in the Parole Board of Canada’s Record Suspension Guide:
The process is lengthy and complex. Some potential difficulties include:

Difficulties obtaining correct criminal record: Step 1 requires the individual to obtain their criminal record. If the CPIC criminal record does not list all convictions then proof of conviction must be obtained from the local police/court. Given the frequent dissimilarity between JEIN and CPIC records this issue may arise frequently.

Difficulties obtaining court information: Step 2 requires the individual to obtain their court information. Court records must be obtained from each courthouse where the individual was sentenced.

Difficulties obtaining police record checks: Step 4 requires the individual to obtain their local police records. Local police record checks must be completed with each police service servicing the areas the individual has lived in over the past 5 years.

Measurable Benefit/Sustained Rehabilitation Form/Board Discretion- Each Applicant must answer the following questions along with their Application form:

Clearly indicate how a record suspension would provide you with a measurable benefit and how it would sustain your rehabilitation into society as a law abiding citizen.
Describe all positive changes you have already made to improve your situation since your conviction.
Describe the circumstances and how/why each of the offences was committed.
For all sexual offences, include the age of the victim. Provide official documentation if available.

The above questions add a significantmeasure of subjectivity and discretion to the process. Applications are considered by a panel of Parole Board Members. The Board may order a record suspension if satisfied that the applicant:

Has been of good conduct and has not been convicted of a criminal offence during the waiting period;
Arecord suspension would provide a measurable benefit to the applicant;
A record suspension would sustain his or her rehabilitation in society as a law-abiding citizen; and
The suspension would not bring the administration of justice into disrepute.

The onus is on the applicant to satisfy the Board that the record suspension would provide a measurable benefit and sustain rehabilitation.

In determining whether ordering the record suspension would bring the administration of justice into disrepute, the Board may consider:

(a)The nature, gravity and duration of the offence;

(b)The circumstances surrounding the commission of the offence;

(c)Information relating to the applicant’s criminal history and, in the case of a service offence, to any service offence history of the applicant that is relevant to the application; and

(d)Any factor that is prescribed by regulation.

The Criminal Records Regulations sets out additional considerations with respect to brining the administration of justice into disrepute. The Board is entitled to consider whether:

(a)The commission of the offence constituted a threat to the safety or security of Canada;

(b)The offence constituted an offence against the administration of law and justice, within the meaning of PartIV of the Criminal Code, that was prosecuted by way of indictment;

(c)The offence was a serious personal injury offence, as defined in section752 of the Criminal Code;

(d)The commission of the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor;

(e)The offence was a service offence

(i)That is set out in sections73 to 82 of the National Defence Act and for which the applicant received a sentence of imprisonment for life, or

(ii)That is set out in section130 of the National Defence Act and that is also an offence referred to in any of paragraphs(a) to (d) and (f) to (h) of this section;

(f)The commission of the offence caused serious physical or psychological injury to another person;

(g)The offence constituted a fraudulent transaction relating to contracts and trade within the meaning of PartX of the Criminal Code, and any of the following apply:

(i)The value of the fraud committed exceeded one million dollars,

(ii)The offence adversely affected, or had the potential to adversely affect, the stability of the Canadian economy or financial system or any financial market in Canada or investor confidence in such a financial market,

(iii)The offence involved a large number of victims,

(iv)In committing the offence, the applicant took advantage of the high regard in which the applicant was held in the community;

(h)The commission of the offence involved the use of cruelty or the harming of children or vulnerable persons;

(i)The applicant has a criminal record outside Canada for an offence that, if it were committed in Canada, could have been an offence prosecuted by way of indictment in Canada; or

(j)The applicant’s criminal record demonstrates a pattern of criminal activity within the meaning of subsections462.37(2.04) and (2.05) of the Criminal Code or a pattern of increasing gravity of offence.

There is no statutory right of appeal from a rejection The individual will have to wait one year before re-applying and must pay another $631 with the new application.

Nova Scotia Records: JEIN

Once a record suspension has been granted the Parole Board/CPIC sends a letter to Nova Scotia Justice/JEIN and the records are removed from JEIN. I understand this is standard practice, but I am unaware of any specific statutory compulsion that forces Nova Scotia to delete the records from JEIN.

Outside Agencies

It is not necessary to hire an outside agency to assist with preparing a record suspension application. However, given the complexity of the process, it may be helpful for certain individuals to have assistance in organizing their application.
Care should be used when selecting an agency, as many (somewhat sketchy) internet agencies purport to offer pardon services. I refer clients to the Commissionaires, as they are a reputable organization with a physical presence in Nova Scotia. Try:

Deletion of Absolute/Conditional Discharge Records

Absolute Discharges received on or after July 24, 1992, are removed from CPICone (1) year from the date the sentence is imposed.
Absolute Discharges received before July 24, 1992, are removed from CPIC upon written request.
Conditional Discharges received on or after July 24, 1992, are removed from CPIC three (3) years from the date the sentence is imposed (regardless of the length of probation imposed).
Conditional Discharges received before July 24, 1992, are removed from CPIC upon written request.

NOTE: After speaking with a representative from Nova Scotia Justice I can confirm that the removal of discharge records from CPIC is NOT automatically mirrored in the JEIN system.

It is not clear how to have discharge records removed from the JEIN system. Presumably one would contact Nova Scotia Justice in writing.
It should be noted that the Department of Justice does not consider JEIN to be a criminal record system– they treat it as an internal case management system (akin to CMS). The representative I spoke to expressed surprise when informed that Crowns (and Judges and Defence) treat it as a criminal record in court. It may be of interest to note that a JEIN record would not meet the formal requirements under s. 667 of the Criminal Code or s. 12 of the CEA for proof of conviction. (For that matter, nor would a CPIC print-out - but both are used regularly with the consent of the Defence).

Criminal Record Checks

Criminal Record Check can be obtained Federally (from the RCMP), or Locally (from Municipal Police Services).

Halifax Regional Police - Criminal Record Check

May be requested online or in person
$50 fee, with an additional $25 for fingerprinting unless the check is for volunteering
The check is completed by referencing CPIC and the local police database (In HRM this is known as a Versadex Query)
The HRP are not authorized to release personal information and do not provide the criminal record to third parties without authorization. When the individual completes the request they self-report their record. The record check confirms that the record is clear, or alternatively, that it is not clear.

Halifax Regional Police - Vulnerable Sector Check

May be requested online or in person
$50 fee, with an additional $25 for fingerprinting unless the check is for volunteering
The VSC check includes referencing of CIPIC and Versadex as above, as well as cross-checking with pardoned sex offences. If a “hit” is registered the record-holder will be called to meet with the superintendent and informed of his or her duty to disclose and the police’s statutory duty to disclose as well.

Similar checks can be obtained from the RCMP:

Further Reading on Criminal Record Checks

The CCLA recently released a report entitled: Presumption of Guilt? The Disclosure of Non-Conviction Records in Police Background Checks. The report “sheds light on the impact of police background checks – which contrary to popular belief frequently disclose a wide range of “non-conviction” information, including withdrawn charges, acquittals or even complaints where charges were never laid.” The content is Alberta-centric but the issues it raises are relevant nationally. It is available for download here:

Some Basics on Employment Law/Human Rights re Pardons/Record Suspensions

(with thanks to Meredith Wain at Pink Larkin)

The Canada Human Rights Act says employers cannot discriminate against a person who has a conviction that was pardoned or subject to a record suspension. This protection does not exist under the Nova Scotia Human Rights Act.

Employers will often require a criminal background check, or ask whether an applicant has been charged with or convicted of a criminal offence.

Employers are permitted to ask these questions and job applicants and employees must answer honestly.

Employers are within their rights to fire an employee if they find out that an employee has not been truthful in answering the above questions.

If a client is asked about his/her criminal record they should keep in mind:
Read the question carefully, and only answer the question being asked.
For example, if they are asked if you they any convictions, and they have a prior Conditional Discharge, then the answer is no.
However, if they are asked if they have ever been charged with a criminal offence, then the answer is yes.

The client should therefore be aware that the wording of the question is very important