Record Suspension in Canada: some additional thoughts

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Record suspensions in Canada…. I think the government should reconsider what it’s proposing (in part). Ever since the Tories announced that they wanted to amend the Criminal Records Act to make getting a pardon (proposed to be called “record suspension”) more difficult, I’ve been bombarded with phone calls and e-mails.

First came the media, who wanted an opinion from “an expert” (because I wrote a forthcoming book called “Erase Your Criminal Record”). Next came the record removal services (U.S. Entry Waivers, Pardons, and File Destruction, etc). They were interested in my take on matters too. Then came everyone else – such as the everyday people who have a criminal record and who are worried about the impact of the proposed laws passing. I guess they are most afraid about the time they would have to wait after completing their sentence before they become eligible to apply for a record suspension (for indictable offences, it’s up to 10 years from 5 years; for summary conviction offences, it’s up to 5 years from 3 years). Then there are some who are afraid that they won’t even get the chance because they were convicted of 3 indictable offences. Their voices are many, but not mobilized. One person for example told me that they had 3 indictable offence convictions: 2 thefts under $5,000 and 1 simple assault. This person (a university student) has been waiting a number of years to apply to get a pardon, but may not get the chance if the new rules pass.

That made me think… Look: everyone makes mistakes. And yes, we can’t forget about the victims. But I’m inclined to say that society is better off – in certain situations – by giving people record suspensions even if they have been convicted of 3 indictable offences. Why? Because there’s no hard and fast rule that would make sense here. Why is 3 convictions the magic number? Maybe 5 is? Shouldn’t we consider things like how long ago they happened, how rehabilitated this person is, what the victims think, etc.?

And lets not forget how the police charge people and whether they’re charging them with indictable offences when summary ones would do. Think about this: the police DO NOT HAVE the authority to fingerprint or take your photograph UNLESS they charge you with an indictable offence. Speaking with pardon and record removal services makes it seem like policy rarely charge people with a purely summary conviction offence (because they want to take their fingerprints and photographs). If an offence is a hybrid offence (meaning it can proceed by way of summary conviction or indictable offence conviction), then the police would prefer to charge by way of indictment (so I’m told). But I’ve also spoken with police services, who say they don’t do that: they abide by the law and will only charge a person with an indictable offence if warranted – and not simply for the purpose of obtaining their fingerprints and photographs. So who’s telling the truth here? Everyone has their own interests.

But what’s the big deal about getting your fingerprint and photograph taken? Well, the RCMP’s Identification data bank (i.e. the criminal record database which most law enforcement agencies rely upon to run criminal record checks) ONLY includes criminal records supported by fingerprints. If a person was charged with a SUMMARY conviction offence, then they won’t get their information included in that data bank. It will be available with the local police service, but it may or may not get shared with other law enforcement agencies and government departments from there.

So going back to what I was saying before: why should we prevent people convicted of 3 indictable offences to have a record suspension as a hard and fast rule? If someone committed 3 thefts in their life under $5,000 (lets say $100 the first time, $200 the second time, and $50 the third time) and was charged and found guilty on all 3 as indictable offences, should they pay the piper for the rest of their lives? Perhaps we should give the National Parole Board the discretion in these circumstances to determine whether the person deserved a record suspension. Not simply bar them from applying from get go. Shutting the door seems unfair to those who may be barred, but also may not make sense given that we want these people to go on leading productive lives (long after their deviant behaviour has passed out of sight and mind).

Finally, why is the government so inclined to do this? Are they trying to target the serious and repeat offenders to prevent them from applying? But who else gets caught in this hard and fast rule? The everyday folk who were convicted a while back of 3 indictable offences which weren’t as serious. Does the National Parole Board need to free up its intake and processing time for applications? It seems to be doing an adequate job so far, so why not let them decide whether the person – in the specific circumstances of each case – warrants a record suspension?

Apart from this rule and the timing changes (which I have previously criticized), I’m in favour of the other proposed changes which the government has put forward…

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