What is expungement?

 

To expunge something is to permanently destroy it or remove it.

Under the Expungement of Historically Unjust Convictions Act (Expungement Act), the Parole Board of Canada (PBC) is the official and only federal agency responsible for ordering or refusing to order expungement of a conviction.

This legislation allows for the destruction or permanent removal of judicial records of historically unjust convictions from federal databases.

A process is now in place to expunge historically unjust convictions, which includes eligible offences involving consensual sexual activity with a same-sex partner that would be lawful today.

Certain convictions under the Criminal Code as well as certain convictions under the National Defence Act are eligible for expungement.

Persons convicted of an offence listed in the schedule to the Expungement Act are eligible to submit an application to the PBC to have the record(s) of their conviction(s) expunged. If the person is deceased, an appropriate representative, such as a close family member or a trustee, can apply on their behalf.

When an expungement is ordered, the person convicted of the offence is deemed never to have been convicted of that offence.

The following convictions are eligible for an expungement:

  • Gross indecency or attempt to commit gross indecency;
  • Buggery or attempt to commit buggery;
  • Anal intercourse or attempt to commit anal intercourse; and
  • Any offence under the National Defence Act or any previous version of the Act for an act or omission that constitutes an offence listed in the schedule to the Expungement Act.

There is no fee to apply for an expungement order. Applicants should, however, be aware that costs may be incurred in terms of providing the documentation needed for the application.

Applicants need to provide evidence that the conviction meets the following three criteria:

  1. the activity for which the person was convicted was between persons of the same sex;
  2. the person(s), other than the person convicted, had given their consent* to participate in the activity; and
  3. the persons who participated in the activity were 16 years of age or older at the time of the activity or subject to a "close in age" defence under section 150.1 of the Criminal Code.

* Section 273.1 of the Criminal Code defines consent as the voluntary agreement of a person to engage in the sexual activity in question.

Given that most eligible offences are expected to be historical in nature, a sworn statement or solemn declaration may be accepted as evidence if applicants can demonstrate that court or police records are not available, or if the documentation does not allow PBC to determine if the criteria are met.

If an expungement is ordered, after receipt of the notification from PBC, the Royal Canadian Mounted Police will destroy or remove any record of conviction in its custody. It will also notify any federal department or agency that, to its knowledge, has records of the conviction, and direct them to do the same. Relevant courts and municipal, provincial and territorial police forces will also be notified of the expungement order.

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