Criminal Records
Background
There are approximately 3.8 million Canadians who possess a criminal record. The management and storage of criminal records in Canada is decentralized and is the responsibility of federal, provincial and municipal jurisdictions; namely, police and courts. While there is an Royal Canadian Mounted Police (RCMP) managed National Repository of Criminal Records, it does not include all criminal record information. There is very little interoperability between jurisdictional systems; therefore, information sharing, including for law enforcement purposes, is largely a manual process and can vary between jurisdictions. Similarly, background screening/criminal record check requirements vary between jurisdictions.
The federal government is responsible for the record suspension (formerly known as pardons) program and decisions pertaining to the disclosure of suspended criminal records which is governed by the Criminal Records Act (CRA). Record suspensions allow individuals who have completed their sentence and have waited a prescribed number of years, to apply to have their criminal record sequestered from the RCMP National Repository of Criminal Records. Record suspensions contribute to public safety by reducing the barriers to reintegration that are associated with having a criminal record, such as the ability to secure meaningful employment and housing. The Minister of Public Safety and Emergency Preparedness has the discretion to disclose a suspended criminal record for purposes consistent with the administration of justice (e.g., court cases); related to the safety and security of Canada (e.g., police pre-employment); and vulnerable sector checks (e.g., those seeking to work with vulnerable populations, such as children). There have been no changes to disclosure provisions in the past ten years.
Amendments to the CRA in 2010 and 2012 resulted in increased wait periods for summary convictions from three to five years, and a requirement for an independent Parole Board of Canada (PBC) Board Member to consider the “good conduct” of applicants. For indictable offences, wait periods increased from five years to ten years and additional criteria were added, including whether it would bring the administration of justice into disrepute. Those convicted of a sexual offence against a minor, as well as those convicted of more than three indictable offences where each received a custodial sentence of two years or more, became ineligible to apply for record suspensions. The user fee was increased to $150 in 2010 and then to $631 in 2012 to reflect full-cost recovery, and “pardons” were renamed “record suspensions.”
The changes to the record suspension program and the resulting impact (e.g., significant decrease in applications) have been the subject of a large volume of correspondence to the government, a public consultation process, and parliamentary scrutiny (Standing Committee on Public Safety and National Security M-161 Report, Bill C-93 Parliamentary debates). The retrospective application of these legislative changes has also been found to be unconstitutional in a number of provinces, leading to inconsistencies in how the record suspension scheme is applied across the country (i.e., some provinces can access the pre-2010/2012 pardon schemes and others cannot).
Status
In 2016, the PBC and the Department of Public Safety (PS) held online consultations on the record suspension program with the Canadian public and targeted in-person consultations with a variety of stakeholders. [Redacted]
On August 1, 2019, An Act to provide no-cost, expedited record suspensions for simple possession of cannabis came into force, amending the CRA to allow persons who have been convicted only of simple possession of cannabis offences to apply for a record suspension without being subject to the wait period required by the CRA, or to the $631 application fee.
Considerations
Legal and Charter risks: Amendments to the CRA in 2010 and 2012 made record suspensions more difficult to obtain and these changes were applied retrospectively. The retrospective application of these changes was found to be unconstitutional in courts in Ontario and British Columbia. As a result, applications submitted by residents of Ontario and British Columbia are being processed under the version of the CRA that was in place at the time of their most recent offence. Legislative changes would be required to address these court decisions. Similar cases are pending in New-Brunswick and in federal court.
Intergovernmental: While the record suspension application process can be administratively heavy for the client and the PBC, the federal government is limited in its ability to streamline or modernize service delivery (e.g., automate record suspensions), specifically because of the decentralized nature of criminal records information. Changes to how criminal record information is stored, shared or screened would therefore require collaboration with jurisdictions.
Cost: The current record suspensions program operates at full-cost recovery for the PBC. Any changes to the application fee, wait periods, and decision-making criteria would have cost implications for PBC, RCMP and possibly PS. Changes to the management and storage of criminal records would also have significant cost implications for the RCMP.
Stakeholder perspective: In 2016, PBC and PS both held public consultations on the record suspension program, which yielded moderate media attention. Although views of stakeholders varied, those consulted generally felt that record suspensions, particularly for minor and non-violent offences, should be made more accessible, affordable, have shorter wait periods, and that the application process should be streamlined with a view of moving toward automation. Stakeholder views in relation to more serious offences, such as violent and sexual offences, were mixed with some stakeholders, particularly victims and women groups of the mindset that these decisions should be made on a case-by-case basis, considering the nature, gravity and harm of the offence.
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