Record Suspension Program 2019-2020 Report to Parliament

From: Parole Board of Canada

Introduction

Pursuant to section 11 of the Criminal Records Act (CRA), within three months after the end of each fiscal year, the Parole Board of Canada (PBC) must submit a report on the record suspension program to the Minister of Public Safety and Emergency Preparedness Canada. The report must contain the following information:

1. Number of applications for record suspensions made in respect of offences referred to in each of paragraphs 4(1)(a)^{Footnote 1}  and (b)^{Footnote 2} ;
2. The number of record suspensions that the Board ordered or refused to order in respect of offences referred to in paragraphs 4(1)(a) and (b);
3. Number of record suspensions ordered, categorized by the offence to which they relate; and
4. The number of record suspensions ordered by the province or territory of residence of the applicant.

Background

As part of the criminal justice system, the PBC, or the Board, makes independent, quality conditional release, record suspension/pardon, expungement decisions, and clemency recommendations. The PBC is headed by a Chairperson who reports to Parliament through the Minister of Public Safety and Emergency Preparedness. The Board contributes to the protection of society by facilitating, as appropriate, the timely re-integration of offenders into society as law-abiding citizens.

The record suspension program supports the successful reintegration of an individual into society, as it can assist an individual in accessing employment and educational opportunities, among other things. It is a formal attempt to remove the stigma of a criminal record for people found guilty of an offence under an Act of Parliament and who have completed their sentence and demonstrated law-abiding behaviour for a prescribed number of years. A record suspension restricts access to records under federal jurisdiction, removes disqualifications caused by a criminal conviction that would result from a conviction under federal statute or regulation, such as the ability to contract with the federal government, or eligibility for Canadian citizenship. It does not, however, guarantee either entry or visa privileges to another country nor does it have effect on a prohibition order under section 109 of the Criminal Code of Canada (CCC).

Although the CRA applies only to records kept by federal organizations, many provincial, territorial and municipal criminal justice agencies also restrict access to their records once they are informed that a record suspension has been ordered. A record suspension does not, however, erase the fact that an individual was convicted of a crime. The criminal record is not deleted/purged, but it is kept separate and apart from other (non-suspended) criminal records. Through the program, the PBC reviews record suspension applications for completeness and eligibility, and collects information for investigation and decision-making. The Board has exclusive jurisdiction and absolute discretion to order, refuse to order, or revoke a record suspension under the CRA.

The process for revocation is started when the Board is notified, usually by the Royal Canadian Mounted Police, that the person is subsequently convicted of an offence referred to in paragraph 4(1)(b) of the CRA, other than an offence referred to in subparagraph 7.2(a)(ii) of the CRA. A record suspension/pardon can also be revoked on evidence establishing to the satisfaction of the Board that: the person is no longer of good conduct, or the person to whom it relates knowingly made a false or deceptive statement in relation to the application for the record suspension/pardon, or knowingly concealed some material particular in relation to that application.

The CRA authorizes that a record suspension/pardon ceases to have effect if a person is subsequently convicted of an indictable offence under a federal act or regulation of Canada or certain other types of offences^{Note de bas de page 3} that are punishable either on indictable or summary conviction. A record suspension/pardon can also be ceased if the Board is convinced by new information that the person was not eligible for a record suspension/pardon at the time it was ordered/granted/issued.

Since February 2012, applicants for a record suspension have had to pay an application fee of $631. The Service Fees Act (SFA), which came into force in 2017, requires departments that charge an application fee to increase their fees on an annual basis according to the Consumer Price Index (CPI). On March 31, 2020 the CPI increase brought the cost of a record suspension/pardon application to $644.88.

The application fee also includes service standards established under the SFA. Specifically, record suspension applications involving summary convictions are processed within six months of the date of acceptance of the application, while applications involving indictable offences are processed within 12 months of the date of acceptance. Applications for which the Board is proposing to refuse to order a record suspension may require up to 24 months to process after the date of application acceptance. The reason for this is that under the CRA, the Board must notify the applicant in writing of its proposal to refuse, and advise them that they are entitled to make, or have made on their behalf, any representations to the Board that they believe relevant. In some cases the Board may authorize a hearing.

On August 1, 2019, Bill C-93, An Act to provide no-cost, expedited record suspensions for simple possession of cannabis came into force. The 2019 amendments to the CRA provided a no-cost option for a record suspension for those with only simple possession of cannabis convictions. Individuals previously convicted of only simple possession of cannabis who have satisfied their sentence (excluding payment of fines and victim surcharges) can now apply to the PBC for a record suspension with no application fee or waiting period. PBC staff members administratively order record suspensions for applicants with only simple possession of cannabis convictions.

The PBC received funding in the amount of $1.26 million through a Treasury Board submission to offset the costs of providing no-cost record suspensions for simple possession of cannabis. This funding provided support for the lead-up costs incurred in preparing for these legislative amendments as well as the processing of the applications received under this legislative scheme between August 1 and March 31, 2020. The remaining portion of funds sought will be used to cash manage a shortfall in the overall record suspension program.

On March 19, 2020, the Federal Court declared the transitional provisions of amendments to section 4 of the CRA, namely, section 10 of the Limiting Pardons of Serious Crimes Act and section 161 of the Safe Streets and Communities Act, unconstitutional. The Court concluded that these provisions infringed on subsections 11(h) and 11(i) of the Canadian Charter of Rights and Freedoms because they add to the punishment imposed at sentencing and deprived applicants of the benefit of the lesser punishment available at the time the offence was committed.

Because of this decision, the PBC no longer applies retrospectively legislative amendments made to the CRA in 2010 and 2012 (as it relates to eligibility periods and criteria) for all record suspension applicants who committed their most recent offence prior to the coming into force of these changes.

Findings for 2019-2020

Number of applications

In 2019-2020, the Board received 12,441 record suspension/pardon applications and accepted 9,587 applications (77%) for processing. There were 2,643 record suspension/pardon applications (21%) that were rejected at screening due to ineligibility, no payment, wrong processing fee and/or missing documentation. There were 173 files pending processing at fiscal year end and 38 files were discontinued. In the previous year, the Board received 13,827 record suspension/pardon applications and accepted 10,531 applications (or 76%).

The chart below indicates the number of record suspension/pardon applications received in each fiscal year over the last five years: 2015-2016 to 2019-2020.

In 2019-2020, while record suspension applications decreased by over 100 per month compared to the previous year, application volumes returned to normal after a brief surge during the 2017-2018 and 2018-2019 fiscal years. Factors behind the surge of new applications such as the wait period of 5 years being met after the 2012 changes to the CRA and the impacts of 2017 court decisions in British Columbia and Ontario appear to have stabilized. The addition of the new business line of no-cost record suspensions for simple possession of cannabis may have also played a role in the decline of regular record suspension applications received in 2019-2020.

Record Suspension Decisions

1.     Number of applications for record suspensions made in 2019-2020 in respect of offences referred to in each of paragraphs 4(1)(a) and (b)

As per paragraph 4.1(1)(a) of the CRA, the Board may order that an applicant’s record in respect of an offence be suspended if the Board is satisfied that during the applicable period, the applicant has been of good conduct and has not been convicted of an offence under an Act of Parliament. Pursuant to paragraph 4.1(1)(b), the Board may order that an applicant’s record in respect of an offence be suspended if the Board is satisfied that during the applicable period, the applicant has been of good conduct and it would provide them with a measurable benefit, sustain their rehabilitation into society as a law abiding citizen and would not bring the administration of justice into disrepute. The applicant must clearly describe how receiving a record suspension would provide them with a measurable benefit and sustain their rehabilitation into society as a law abiding citizen.

The number of applications for a record suspension accepted in 2019-2020 in respect of offences referred to in paragraphs 4(1)(a) and (b)

^{Data Source: PBC-PARSS, Data Extraction Date: 2020-04-01
Note: Excluded are files that were accepted and subsequently discontinued.}

*An indictable conviction offence is an offence which can only be tried on an indictment after a preliminary hearing to determine whether there is a prima facie case to answer.
**Summary conviction offences are considered less serious than indictable offences because they are punishable by lesser penalties. The maximum penalty for a summary conviction offence is a sentence of six months of imprisonment, a fine of $5,000 or both.

2.     Number of record suspensions that the Board ordered or refused to order in 2019-2020 in respect of offences referred to in paragraphs 4(1)(a) and (b)

3.     Number of applications for pardons made in 2019-2020 in respect of offences referred to in each of paragraphs 4(1)(a) and (b)

In 2019-2020, a proportion of applications were processed as pardons under the relevant scheme of the CRA.

Legislative scheme: C-47

As per subsection 4.1(1) of the CRA^{Note de bas de page 4}, the Board may grant a pardon for an offence prosecuted by indictment or a service offence referred to in subparagraph 4(a)(ii) if the Board is satisfied that the applicant, during the period of five years referred to in paragraph 4(a), has been of good conduct; and has not been convicted of an offence under an Act of Parliament or a regulation made under an Act of Parliament.

As per subsection 4.1(2) of the CRA^{Note de bas de page 5}, a pardon for an offence punishable on summary conviction or a service offence referred to in subparagraph 4(b)(ii) shall be issued if the applicant has not been convicted of an offence under an Act of Parliament or a regulation made under an Act of Parliament during the period of three years referred to in paragraph 4(b).

Legislative scheme: C-23A

As per subsection 4.1(1) of the CRA^{Note de bas de page 6}, the Board may grant a pardon for an offence if the Board is satisfied that the applicant, during the applicable period referred to in section 4, has been of good conduct and has not been convicted of an offence under an Act of Parliament; and if granting the pardon at that time would provide a measurable benefit to the applicant, would sustain their rehabilitation in society as a law-abiding citizen and would not bring the administration of justice into disrepute.

As per subsection 4.1(1) of the CRA^{Note de bas de page 7}, the Board may grant a pardon for an offence punishable on summary conviction or a service offence within the meaning of the National Defence Act if the Board is satisfied that the applicant, during the applicable period referred to in section 4, has been of good conduct and has not been convicted of an offence under an Act of Parliament.

The number of applications for a pardon accepted in 2019-2020 in respect of offences referred to in paragraphs 4(1)(a) and (b).

4.     Number of pardons^{Footnote 8} that the Board issued, granted and/or denied in 2019-2020 in respect of offences referred to in paragraphs 4(1)(a) and (b)

5.    The number of applications for record suspensions made, accepted and ordered in 2019-2020 containing only simple possession of cannabis conviction(s)

The total number of record suspension applications received for simple possession of cannabis is much higher compared to the number of accepted applications. This can be attributed to a high percentage of applications received being either ineligible or incomplete. In the majority of these applications, the proof of substance is not included. The onus is on the applicant to provide all of the required information/documentation, including confirmation that the substance was cannabis, to benefit from this expedited, no-cost, record suspension.

6.     Number of record suspensions ordered, pardon issued and granted in 2019-2020 categorized by the offence to which they relate

7.     Number of record suspensions in 2019-2020 ordered by the province/territory of residence of the applicant

^{Data Source: PBC-PARSS, Data Extraction Date: 2020-04-01
Note: Includes applications received in previous fiscal years, as well as some received in 2019-2020.}

8.     Number of pardons issued in 2019-2020 by the province/territory of residence of the applicant

^{Data Source: PBC-PARSS, Data Extraction Date: 2020-04-01
Note: Includes applications received in previous fiscal years, as well as some received in 2019-2020.}

9.     Number of pardons granted in 2019-2020 by the province/territory of residence of the applicant

^{Data Source: PBC-PARSS, Data Extraction Date: 2020-04-01
Note: Includes applications received in previous fiscal years, as well as some received in 2019-2020.}

Other information required by the Minister

Pursuant to paragraph 11(1) of the CRA the Board shall, within three months after the end of each fiscal year, submit to the Minister a report on the number of applications for record suspensions made; ordered or refused to order; and the number of record suspensions ordered, categorized by the offence to which they relate and the province or territory of residence. The Minister may request additional information during that same covering period. There were no additional requests for information by the Minister during this review period.