Law-Abiding Citizen Criteria for Criminal Record Suspensions

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Criminal Record Suspensions

Has the Government gone too far in responding to public concerns about criminal record suspensions? It would appear so. You may be surprised to know exactly what can be relied upon by the Parole Board of Canada when determining whether you should be granted or denied a criminal record suspension.

One of the reasons for replacing pardons with criminal record suspensions was in response to public concerns raised about what individuals should be eligible to have their criminal record no longer accessible through the Canadian Police Information Centre. More specifically, concerns were raised that nearly anyone with a criminal record could receive a pardon, including individuals who had received convictions for sexually-based crimes related to children. While I don’t disagree that there should be some form of eligibility criteria that must be met before a person can receive a criminal record suspension, it would appear the pendulum has swung too far the other way.

First, let’s begin by briefly reviewing the eligibility criteria and the process involved in applying for a criminal record suspension.

Eligibility for a Criminal Record Suspension

There are two types of criminal offences in Canada, summary offences and indictable offences. If you were convicted of a summary offence, then you cannot apply for a criminal record suspension until 5 years have passed from the date your sentence ended. If you are convicted of an indictable offence, you must 10 years from the date your sentence ended.

If you have been convicted of 3 indictable offences with each having a prison sentence of 2 years or more, then you are not eligible to apply for a criminal record suspension. Similarly, if you have been convicted of a sexually-based offence involving a child and you do not fall within one of the few exceptions, then you are not eligible to apply for a criminal record suspension.

Applying for a Criminal Record Suspension

An application for a criminal record suspension is made to the Parole Board of Canada. An application for a criminal record suspension costs more than $600 and can take several months and even up to a year to process. There are several steps that you need to complete before applying for a criminal record suspension, including obtaining a criminal record check. For a complete list of steps involved in applying for a criminal record suspension, contact me or watch for my article on applying for a criminal record suspension.

Law-Abiding Citizen Criteria

In addition to having to wait either 5 years or 10 years before being eligible to apply for a criminal record suspension, the onus is now on the applicant to prove he/she is a person of good conduct and a law-abiding citizen.

The Parole Board of Canada does not define what constitutes a person of good conduct, only that it is behaviour consistent with and demonstrating a law-abiding lifestyle. The Parole Board of Canada also does not define what constitutes behaviour consistent with a law-abiding citizen, however the Board’s Policy Manuel does list information that it may consider when determining whether a person has demonstrated he/she is a law-abiding citizen.

Taking into account that we are dealing with criminal record suspensions, it would only seem reasonable to conclude that a law-abiding citizen is someone who does not receive any further criminal convictions for a sustained period of time. Unfortunately, this is not the case. You may be surprised to know that the Parole Board considers much more when assessing whether a person has demonstrated they are a law-abiding citizen.

What information does the Parole Board of Canada consider when Assessing Law-Abiding Behaviour?

When determining whether a person should be granted a criminal record suspension, the Parole Board of Canada may consider information from a several sources. Specifically some of the information the Board will consider includes;

Non-law abiding behaviour that did not result in a charge.
Non-law abiding behaviour that resulted in a charge being withdrawn, stayed, or dismissed.
Non-law abiding behaviour that resulted in a peace bond, diversion, or a conditional or absolute discharge.

Yes, you are reading that correctly. The Parole Board of Canada can consider information relating to events where you were never charged with an offence. The Board may also consider information relating to events where you were charged with an offence but you were never convicted.

To use this type of information to assess whether someone is a law-abiding citizen would seem to infringe upon section 11(d) of the Canadian Charter of Rights and Freedoms that every person has a right to be presumed innocent until proven guilty. Whether the use of this information is an infringement on the right to be presumed innocent until proven guilty does not seem to matter much to the Parole Board of Canada. Located in the Policy Manuel of the Parole Board of Canada is paragraph 13 under section 14 Clemency and Pardons, it states;

In its assessment of good conduct, the Board is not subject to the same standards as a criminal court. The presumption of innocence and the relating rights are not applicable in the context of a pardon or a record suspension application.

The information the Parole Board of Canada may consider is also not limited to just criminal offences. The Board can also consider provincial offences, including traffic offences. Yes, the possibility does exist that you could be denied a criminal record suspension because you were convicted of traffic offences.

As a criminal defence lawyer and a member of the public, I share the concern that there must be some process for determining whether a person is eligible for a criminal record suspension. However, a person should not be prevented from having an opportunity to move on with their life because of unsubstantiated allegations or because of traffic offences. It certainly would appear to be unfair to infer that a person is not a law-abiding citizen based on completely unsubstantiated allegations.