Criminal Records Act

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CRIMINAL RECORDS ACT

(RSC 1985 c C-47)
Note - The Revised Statutes of Canada 1985 came into force on December 12, 1988. This act is printed as amended by SC 1992 c22, ss1 to 11, effective July 24, 1992.

__________________________

An Act to provide for the relief of persons who have been
convicted of offences and have subsequently
rehabilitated themselves


SHORT TITLE

1. Short title - This Act may be cited as the Criminal Records Act.
R.S., c. 12(1st Supp.), s. 1.

INTERPRETATION

2. (1) Definitions - In this Act,
	"Board" means the National Parole Board;
	"Commissioner" means the Commissioner of the Royal Canadian Mounted Police;
	"Minister" means the Solicitor General of Canada;
	"pardon" means a pardon granted or issued by the Board under section 4.1;
	"period of probation" means a period during which a person convicted of an offence was directed by the court that convicted him
(a)		to be released on his own recognizance to keep the peace and be of good behaviour, or
(b)		to be released on or comply with the conditions prescribed in a probation order;
	"sentence" has the same meaning as in the Criminal Code, but does not include an order made under section 109, 110, 161 or 259 of that Act or subsection 147.1(1) of the National Defence Act.
(2) Termination of period of probation - For the purposes of this Act, the period of probation shall be deemed to have terminated at the time the recognizance or the probation order that relates to the period of probation ceased to be in force.
(3) [Repealed, 1992, c. 22, s. 1]
R.S., 1985, c. C-47, s. 2; R.S., 1985, c. 1 (4th Supp.), s. 45(F); 1992, c. 22, s. 1; 1995, c. 39, ss. 166, 191, c. 42, s. 77.

NATIONAL PAROLE BOARD

2.1 Jurisdiction of the Board - The Board has exclusive jurisdiction to grant or issue or refuse to grant or issue or to revoke a pardon.
1992, c. 22, s. 2.

2.2 (1) Quorum - Applications for pardons referred to in subsection 4.1(1) shall be determined, and decisions whether to revoke pardons under section 7 shall be made, by a panel that consists of one member of the Board.
(2) Idem - The Chairman of the Board may direct that the number of members of the Board required to constitute a panel for the determination of an application for a pardon referred to in subsection 4.1(1) or to decide whether to revoke a pardon under section 7 or for the determination of any class of those applications or for the making of any class of those decisions shall be greater than one.
1992, c. 22, s. 2.

APPLICATION FOR PARDON

3. (1) Application for pardon - A person who has been convicted of an offence under an Act of Parliament or a regulation made under an Act of Parliament may apply to the Board for a pardon in respect of that offence and a Canadian offender within the meaning of the Transfer of Offenders Act who has been transferred to Canada under that Act may apply to the Board for a pardon in respect of the offence of which the offender has been found guilty.
(2) Transfer of offenders - For the purposes of this Act, the offence of which a Canadian offender within the meaning of the Transfer of Offenders Act who has been transferred to Canada under that Act has been found guilty is deemed to be an offence that was prosecuted by indictment.
R.S., 1985, c. C-47, s. 3; 1992, c. 22, s. 3.

PROCEDURE

4. Conviction-free period - Before an application for a pardon may be considered, the following period must have elapsed after the expiration according to law of any sentence, including a sentence of imprisonment, a period of probation and the payment of any fine, imposed for an offence, namely,
(a)		five years, in the case of
(i)			under a probation order,
(ii)			a paroled inmate, or
(b)		three years, in the case of
(i)			an offence punishable on summary conviction, or
(ii)			a service offence within the meaning of the National Defence Act, other than a service offence referred to in subparagraph (a)(ii).
R.S., 1985, c. C-47, s. 4; R.S., 1985, c. 1 (4th Supp.), s. 45(F); 1992, c. 22, s. 4; 2000, c. 1, s. 1(F).

4.01 Exception where long-term supervision - The period during which a person is being supervised pursuant to an order for long-term supervision, within the meaning of subsection 2(1) of the Corrections and Conditional Release Act is not included in the calculation of the period referred to in section 4 that must have elapsed after the expiration of sentence before an application for a pardon is considered.
1997, c. 17, s. 38.

4.1 (1) Grant of pardon -- indictable offences - 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),
(a)		has been of good conduct; and
(b)		has not been convicted of an offence under an Act of Parliament or a regulation made under an Act of Parliament.
(2) Summary conviction offences - 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 offender 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).
1992, c. 22, s. 4.

4.2 (1) Inquiries - On receipt of an application for a pardon for an offence referred to in paragraph 4(a), the Board shall cause inquiries to be made to ascertain the conduct of the applicant since the date of the conviction.
(2) Opportunity to make representations - If the Board proposes to refuse to grant a pardon, it shall notify the applicant of its proposal in writing and advise the applicant that he or she is entitled to make, or have made on his or her behalf, any representations to the Board that he or she believes relevant either in writing or, if the Board so authorizes, orally at a hearing held for that purpose.
(3) Board to consider representations - The Board shall, before making its decision, consider any representations made to it within a reasonable time after the notification is given to the applicant pursuant to subsection (2).
(4) Waiting period - An applicant whose application is refused may not apply for a pardon until the expiration of one year after the date of the refusal.
1992, c. 22, s. 4; 2000, c. 1, s. 2.

4.3 Expiration of sentence - For the purposes of section 4, a reference to the expiration according to law of a sentence of imprisonment imposed for an offence shall be read as a reference to the day on which the sentence expires, without taking into account
(a)		any period during which the offender could be entitled to statutory release or any period following a statutory release date; or
(b)		any remission that stands to the credit of the offender in respect of the offence.
1992, c. 22, s. 4.

EFFECT OF PARDON

5. Effect of pardon - The pardon
(a)		is evidence of the fact
(i)			that, in the case of a pardon for an offence referred to in paragraph 4(a), the Board, after making inquiries, was satisfied that the applicant for the pardon was of good conduct, and
(ii)			that, in the case of any pardon, the conviction in respect of which the pardon is granted or issued should no longer reflect adversely on the applicant's character; and
(b)		unless the pardon is subsequently revoked or ceases to have effect, requires the judicial record of the conviction to be kept separate and apart from other criminal records and removes any disqualification to which the person so convicted is, by reason of the conviction, subject by virtue of the provisions of any Act of Parliament, other than section 109, 110, 161 or 259 of the Criminal Code or subsection 147.1(1) of the National Defence Act, or of a regulation made under an Act of Parliament.
R.S., 1985, c. C-47, s. 5; 1992, c. 22, s. 5; 1995, c. 39, ss. 167, 191, c. 42, s. 78; 2000, c. 1, s. 4.

CUSTODY OF RECORDS

6. (1) Order respecting custody of records - The Minister may, by order in writing addressed to any person having the custody or control of any judicial record of a conviction in respect of which a pardon has been granted or issued, require that person to deliver that record into the custody of the Commissioner.
(2) Records to be kept separate and not to be disclosed - Any record of a conviction in respect of which a pardon has been granted or issued that is in the custody of the Commissioner or of any department or agency of the Government of Canada shall be kept separate and apart from other criminal records, and no such record shall be disclosed to any person, nor shall the existence of the record or the fact of the conviction be disclosed to any person, without the prior approval of the Minister.
(3) Approval for disclosure - The Minister shall, before granting the approval for disclosure referred to in subsection (2), satisfy himself that the disclosure is desirable in the interests of the administration of justice or for any purpose related to the safety or security of Canada or any state allied or associated with Canada.
(4) Information in national DNA data bank - For greater certainty, a judicial record of a conviction includes any information in relation to the conviction that is contained in the convicted offenders index of the national DNA data bank established under the DNA Identification Act.
R.S., c. 12(1st Supp.), s. 6; 1998, c. 37, s. 25; 2000, c. 1, s. 5(E).

6.1(1) Discharges - No record of a discharge under section 730 of the Criminal Code that is in the custody of the Commissioner or of any department or agency of the Government of Canada shall be disclosed to any person, nor shall the existence of the record or the fact of the discharge be disclosed to any person, without the prior approval of the Minister, if
(a)		more than one year has elapsed since the offender was discharged absolutely; or
(b)		more than three years have elapsed since the offender was discharged on the conditions prescribed in a probation order.
(2) Purging C.P.I.C. - The Commissioner shall remove all references to a discharge under section 730 of the Criminal Code from the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police on the expiration of the relevant period referred to in subsection (1).
1992, c. 22, s. 6; 1995, c. 22, s. 17(E).

6.2 Disclosure to police forces - Notwithstanding sections 6 and 6.1, the name, date of birth and last known address of a person who has received a pardon or a discharge referred to in section 6.1 may be disclosed to a police force if a fingerprint, identified as that of the person, is found
(a)		at the scene of a crime during an investigation of the crime; or
(b)		during an attempt to identify a deceased person or a person suffering from amnesia.
1992, c. 22, s. 6.

6.3 (1) Definitions - The definitions in this subsection apply in this section.
	"children" means persons who are less than 18 years of age.
	"vulnerable persons" means persons who, because of their age, a disability or other circumstances, whether temporary or permanent,
(a)		are in a position of dependence on others; or
(b)		are otherwise at a greater risk than the general population of being harmed by persons in a position of authority or trust relative to them.
(2) Notation of records - The Commissioner shall make, in the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police, a notation enabling a member of a police force or other authorized body to determine whether there is a record of an individual's conviction for a sexual offence listed in the schedule in respect of which a pardon has been granted or issued.
(3) Verification - At the request of any person or organization responsible for the well-being of one or more children or vulnerable persons and to whom or to which an application is made for a paid or volunteer position, a member of a police force or other authorized body shall verify whether the applicant is the subject of a notation made in accordance with subsection (2) if
(a)		the position is one of authority or trust relative to those children or vulnerable persons; and
(b)		the applicant has consented in writing to the verification.
(4) Unauthorized use - Except as authorized by subsection (3), no person shall verify whether a person is the subject of a notation made in accordance with subsection (2).
(5) Request to forward record to Minister - A police force or other authorized body that identifies an applicant for a position referred to in paragraph (3)(a) as being a person who is the subject of a notation made in accordance with subsection (2) shall request the Commissioner to provide the Minister with any record of a conviction of that applicant, and the Commissioner shall transmit any such record to the Minister.
(6) Disclosure by Minister - The Minister may disclose to the police force or other authorized body all or part of the information contained in a record transmitted by the Commissioner pursuant to subsection (5).
(7) Disclosure to person or organization - A police force or other authorized body shall disclose the information referred to in subsection (6) to the person or organization that requested a verification if the applicant for a position has consented in writing to the disclosure.
(8) Use of information - A person or organization that acquires information under this section in relation to an application for a position shall not use it or communicate it except in relation to the assessment of the application.
(9) Amendment of schedule - The Governor in Council may, by order, amend the schedule by adding or deleting a reference to a sexual offence.
2000, c. 1, s. 6.

6.4 Operation of section 6.3 - Section 6.3 applies in respect of a record of a conviction for any offence in respect of which a pardon has been granted or issued regardless of the date of the conviction or the date of the pardon.
2000, c. 1, s. 6.

REVOCATION

7. Revocation of pardon - A pardon may be revoked by the Board
(a)		if the person to whom it is granted or issued is subsequently convicted of an offence punishable on summary conviction under an Act of Parliament or a regulation made under an Act of Parliament;
(b)		on evidence establishing to the satisfaction of the Board that the person to whom it was granted or issued is no longer of good conduct; or
(c)		on evidence establishing to the satisfaction of the Board that the person to whom it was granted or issued knowingly made a false or deceptive statement in relation to the application for the pardon, or knowingly concealed some material particular in relation to that application.
R.S., 1985, c. C-47, s. 7; 1992, c. 22, s. 7.

7.1(1) Opportunity to make representations - If the Board proposes to revoke a pardon, it shall notify the person to whom the pardon was granted or issued of its proposal in writing and advise that person that he or she is entitled to make, or have made on his or her behalf, any representations to the Board that he or she believes relevant either in writing or, if the Board so authorizes, orally at a hearing held for that purpose.
(2) Board to consider representations - The Board shall, before making its decision, consider any representations made to it within a reasonable time after the notification is given to a person pursuant to subsection (1).
1992, c. 22, s. 7; 2000, c. 1, s. 7.

7.2 Cessation of effect of pardon - A pardon granted or issued to a person ceases to have effect if
(a)		the person is subsequently convicted of
(i)			an indictable offence under an Act of Parliament or a regulation made under an Act of Parliament,
(ii)			an offence under the Criminal Code, except subsection 255(1), or under the Controlled Drugs and Substances Act, the Firearms Act, Part III or IV of the Food and Drugs Act or the Narcotic Control Act, chapter N-1 of the Revised Statutes of Canada, 1985, that is punishable either on conviction on indictment or on summary conviction, or
(iii)			a service offence referred to in subparagraph 4(a)(ii); or
(b)		the Board is convinced by new information that the person was not eligible for a pardon at the time it was granted or issued.
1992, c. 22, s. 7; 2000, c. 1, s. 7.

*Judicial Consideration* -

Desjardins v Bouchard et al - [1976] 2 FC 439, 31 CCC (2d) 506, 71 DLR (3d) 491 (TD)
		- The Governor-General in Council is given broad discretionary power to revoke a pardon. He may be satisfied by the investigation of another expert body, and the National Parole Board in particular, which may be required to adhere to the rules of natural justice. That body need not divulge the grounds of a proposed revocation if the person previously pardoned can be taken to know the grounds. A stated intention to revoke a pardon in a written notice of a hearing sent to the party affected does not constitute bias fatal to a subsequent revocation.

Desjardins v Bouchard et al - (1984), 11 CCC (3d) 167 (FCA)
		- On appeal the Federal Court of Appeal upheld the Trial Judge's findings that the Governor General in Council could act on the recommendation of the National Parole Board as the Board and its members have no part in the actual revocation of a Pardon any recommendation made by them and any decisions they may have taken were devoid of any legal effect. The court also upheld the Trial Judge's conclusion that on the facts there was no reason to doubt the impartiality of the Board or its members. However, the appeal was allowed on the ground that the applicant did not in fact have an opportunity to be heard before his Pardon was revoked. If a person has a right to be heard, that person also has a right to be first informed of the facts on which the authorities are relying in exercising the power of revocation since without that information he could not properly be heard. Because the applicant was never informed of the reasons why the revocation of his Pardon was being considered the Pardon was revoked without him being furnished an opportunity to be heard. The decision of the Supreme Court of Canada in Attorney General of Canada v Inuit Tapirisat et al (1980), 2 SCR 735 was distinguished because the power of the Governor General in Council in question under the Criminal Records Act was considered a power which affected an individual rather than the community by depriving him of the rights which proceeded from his Pardon. Further, the power under s70f the Criminal Records Act is not entirely discretionary since it can only be exercised in the circum- stances described in that Section. In addition, the court noted that it was not a legislative power which must be exercised primarily in light of social and political considerations. It was noted that the statute did not provide any specific direction as to how the power should be exercised to revoke a Pardon whereas s4 of the Act sets out a detailed procedure to be followed in the granting of a Pardon. It was held that the revocation of a Pardon is more fraught with consequences for the person concerned than a mere refusal to grant an application for a Pardon, the revocation resulting in deprivation of rights, while the refusal to grant a Pardon was characterized simply as a denial of a privilege. In addition, the power to revoke can only be exercised in the circumstances set forth in Section 7. Therefore, it would only seem fair that a Pardon should not be revoked without first giving the person concerned an opportunity to refute the existence of the facts on which the authority in question would rely in exercising the power or revocation. However, the court further held that because the legislator was familiar with the ways of proceedings and the rules of the Governor in Council as an executive entity it had to be presumed, in the absence of any indication to the contrary, that the power was to be exercised in accordance with those special rules and ways of proceedings and therefore the Governor in Council was not required to hear the person concerned himself before revoking a pardon and the person concerned did not have a right before being heard to know the evidence against him, he was only entitled to know the facts which were through to the attention of the Governor in Councilor his advisers and which were said to justify revoking the pardon. Lalande, OJ in a separate concurring Judgment characterized the power granted to the Governor General-in-Council under s7 as a quasi-judicial power because a revocation of a Pardon could only be ordered "upon evidence establishing" that the person was no longer of good conduct and therefore such power must be exercised in accordance with the requirements of natural justice. The Order revoking the Pardon was therefore quashed.

Reddekopp v R - (1983), 33 CR (3d) 389 (Ont HC)
		- The applicant was convicted in 1974 and sentenced to life imprisonment. On October 28, 1981 he was released from custody pursuant to a Conditional Pardon granted by Order-in-Council dated October 22, 1981. There were a number of conditions attached to the Pardon requiring him to report to representatives of the National Parole Service and the police in accordance with instructions, not to leave the area without approval and endeavour to maintain steady employment, to make application to his parole officer before buying a motor vehicle. incurring debts, owning or carrying firearms and assuming responsibilities other than those provided for in the conditions and further, he was to report to his parole officer of any con- tact with the police in connection with any offence. On October 3, 1983 he was arrested by a police officer allegedly for being unlawfully at large contrary to s133(1)(b) of the Code and asserting the grounds for the arrest to be that he had breached the conditions of his Conditional Pardon by purchasing a motor vehicle and borrowing money without prior application to his parole officer and without prior approval and that he made false statements in an application to obtain a training allowance from the Ministry of Community and Social Services for Ontario. He was advised that there would be a hearing on the matter at the Regional Reception Centre at Kingston. He was then arrested and returned to Kingston Penitentiary. At the hearing on the advice of counsel he declined to proceed maintaining there was no jurisdiction in the persons purporting to hold the hearing. He applied for habeas corpus with certiorari in aid. The application was granted the court ordering his discharge from custody to remain at liberty under the Conditional Pardon and the court declared that he had not breached the conditions of the Conditional Pardon. There was apparently no lawful authority under the terms of the Pardon to return the applicant to close custody or confinement.

GENERAL

8. Applications for employment - No person shall use or authorize the use of an application form for or relating to any of the following matters that contains a question that by its terms requires the applicant to disclose a conviction in respect of which a pardon that has not been revoked or ceased to have effect has been granted or issued to the applicant:
(a)		employment in any department as defined in section 2 of the Financial Administration Act;
(b)		employment by any Crown corporation as defined in section 83 of the Financial Administration Act;
(c)		enrolment in the Canadian Forces; or
(d)		employment on or in connection with the operation of any work, undertaking or business that is within the legislative authority of Parliament.
R.S., 1985, c. C-47, s. 8; 1992, c. 22, s. 8.

9. Saving of other pardons - Nothing in this Act in any manner limits or affects Her Majesty's royal prerogative of mercy or the provisions of the Criminal Code relating to pardons, except that sections 6 and 8 apply in respect of any pardon granted pursuant to the royal prerogative of mercy or those provisions.
R.S., 1985, c. C-47, s. 9; 1992, c. 22, s. 9.

9.1 Regulations - The Governor in Council may make regulations
(a)		respecting the making of notations in respect of records of conviction, and the verification of such records, for the purposes of section 6.3;
(b)		prescribing the factors that the Minister must have regard to in considering whether to authorize a disclosure under this Act of a record of a conviction;
(c)		respecting the consent given by applicants to the verification of records and the disclosure of information contained in them, including the information to be given to applicants prior to obtaining their consent and the manner in which consent is to be given, for the purposes of subsections 6.3(3) and (7); and
(d)		generally for carrying out the purposes and provisions of this Act.
1992, c. 22, s. 9; 2000, c. 1, s. 8.

OFFENCES

10. Offence and punishment - Any person who contravenes any provision of this Act is guilty of an offence punishable on summary conviction.
R.S., c. 12(1st Supp.), s. 10.
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