Criminal Records Act

This Act may be cited as the Criminal Records Act.

In this Act,

Board means the Parole Board of Canada; (Commission)

child means a person who is less than 18 years of age; (enfant)

Commissioner means the Commissioner of the Royal Canadian Mounted Police; (commissaire)

Executive Committee means the Executive Committee of the Board referred to in subsection 151(1) of the Corrections and Conditional Release Act; (Bureau)

Minister means the Minister of Public Safety and Emergency Preparedness; (ministre)

pardon[Repealed, 2012, c. 1, s. 109]

period of probation means a period during which a person convicted of an offence was directed by the court that convicted him

to be released on his own recognizance to keep the peace and be of good behaviour, or

to be released on or comply with the conditions prescribed in a probation order; (période de probation)

possession means possession within the meaning of subsection 4(3) of the Criminal Code; (possession)

record suspension means a measure ordered by the Board under section 4.1; (suspension du casier)

sentence has the same meaning as in the Criminal Code, but does not include an order made under section 109, 110, 161 or 320.24 of that Act or subsection 147.1(1) of the National Defence Act; (peine)

service offence has the same meaning as in subsection 2(1) of the National Defence Act. (infraction d’ordre militaire)

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.

[Repealed, 1992, c. 22, s. 1]

The Board has exclusive jurisdiction and absolute discretion to order, refuse to order or revoke a record suspension.

The powers, duties and functions of the Board related to an application referred to in subsection 4(3.1) shall be exercised by employees of the Board or any class of its employees.

An application for a record suspension shall be determined, and a decision whether to revoke a record suspension under section 7 shall be made, by a panel that consists of one member of the Board.

The Chairperson of the Board may direct that the number of members of the Board required to constitute a panel to determine an application for a record suspension, to decide whether to revoke a record suspension under section 7 or to determine any class of those applications or make any class of those decisions shall be greater than one.

A record suspension

is evidence of the fact that

the Board, after making the inquiries referred to in paragraph 4.2(1)(b), was satisfied that the applicant was of good conduct, and

the conviction in respect of which the record suspension is ordered should no longer reflect adversely on the applicant’s character; and

unless the record suspension is subsequently revoked or ceases to have effect, requires that the judicial record of the conviction be kept separate and apart from other criminal records and removes any disqualification or obligation to which the applicant is, by reason of the conviction, subject under any Act of Parliament other than

section 109, 110, 161, 320.24, 490.012, 490.019 or 490.02901 of the Criminal Code,

section 259 of the Criminal Code, as it read immediately before the day on which section 14 of An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts comes into force,

subsection 147.1(1) or section 227.01 or 227.06 of the National Defence Act,

section 734.5 or 734.6 of the Criminal Code or section 145.1 of the National Defence Act, in respect of any fine or victim surcharge imposed for any offence referred to in Schedule 3, or

section 36.1 of the International Transfer of Offenders Act.

Subject to section 4, a person who has been convicted of an offence under an Act of Parliament may apply to the Board for a record suspension in respect of that offence, and a Canadian offender, within the meaning of the International Transfer of Offenders Act, who has been transferred to Canada under that Act may apply to the Board for a record suspension in respect of the offence of which he or she has been found guilty.

For the purposes of this Act, the offence of which a Canadian offender within the meaning of the International 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.

Subject to subsections (3.1) and (3.11), a person is ineligible to apply for a record suspension until the following period has 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:

10 years, in the case of an offence that is prosecuted by indictment or is a service offence for which the offender was punished by a fine of more than five thousand dollars, detention for more than six months, dismissal from Her Majesty’s service, imprisonment for more than six months or a punishment that is greater than imprisonment for less than two years in the scale of punishments set out in subsection 139(1) of the National Defence Act; or

five years, in the case of an offence that is punishable on summary conviction or is a service offence other than a service offence referred to in paragraph (a).

Subject to subsection (3), a person is ineligible to apply for a record suspension if he or she has been convicted of

an offence referred to in Schedule 1; or

more than three offences each of which either was prosecuted by indictment or is a service offence that is subject to a maximum punishment of imprisonment for life, and for each of which the person was sentenced to imprisonment for two years or more.

A person who has been convicted of an offence referred to in Schedule 1 may apply for a record suspension if the Board is satisfied that

the person was not in a position of trust or authority towards the victim of the offence and the victim was not in a relationship of dependency with him or her;

the person did not use, threaten to use or attempt to use violence, intimidation or coercion in relation to the victim; and

the person was less than five years older than the victim.

A person who has been convicted only of an offence referred to in Schedule 3 may apply for a record suspension in respect of that offence before the expiration of the period referred to in subsection (1).

A person who has been convicted of an offence referred to in Schedule 3 and other offences may only apply for a record suspension after the expiration of the period referred to in subsection (1), without taking into account any offence referred to in Schedule 3.

A person is ineligible to make an application for a record suspension referred to in subsection (3.1) or (3.11) until after the expiration according to law of any sentence imposed, other than the payment of any fine or victim surcharge, for any offence referred to in Schedule 3.

For greater certainty, subsection (3.2) does not apply to fines and victim surcharges imposed for both an offence referred to in Schedule 3 and for other offences, in which case a person is ineligible to make an application for a record suspension referred to in subsection (3.11) until after all fines and victim surcharges have been paid.

Despite anything in an order made under the Financial Administration Act, a person who makes an application for a record suspension referred to in subsection (3.1) is not required to pay any fee for services provided by the Board in respect of that application if the person has been convicted only of an offence referred to in that subsection.

The person has the onus of satisfying the Board that the conditions referred to in subsection (3) are met.

The person referred to in subsection (3.1) has the onus of satisfying the Board that the person has been convicted only of an offence referred to in that subsection.

For the purpose of an application referred to in subsection (3.1), the Board may not require a person who makes the application to provide a certified copy of information contained in court records in support of the application unless the certified verification of the applicant’s criminal records and information contained in the police records or Canadian Armed Forces records provided in support of the application are not sufficient to demonstrate that the person has been convicted only of an offence referred to in Schedule 3 and that the only sentence imposed for that offence was payment of a fine or victim surcharge or both.

For the purpose of subsection (3.11), a person referred to in that subsection has the onus of satisfying the Board that the person has been convicted of an offence referred to in Schedule 3.

The Governor in Council may, by order, amend Schedule 1 or 3 by adding or deleting a reference to an offence.

The period during which a person is supervised under 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 subsection 4(1).

Subject to subsection (1.1), the Board may order that an applicant’s record in respect of an offence be suspended, without taking into account any offence referred to in Schedule 3, if the Board is satisfied that

the applicant, during the applicable period referred to in subsection 4(1), has been of good conduct and has not been convicted of an offence under an Act of Parliament; and

in the case of an offence referred to in paragraph 4(1)(a), ordering the record suspension at that time would provide a measurable benefit to the applicant, would sustain his or her rehabilitation in society as a law-abiding citizen and would not bring the administration of justice into disrepute.

In the case of an application referred to in subsection 4(3.1), the Board shall order that the applicant’s record in respect of that offence be suspended if the applicant has been convicted only of an offence referred to in that subsection and has not been convicted of a new offence under an Act of Parliament, other than an offence referred to in that subsection.

A record suspension ordered under subsection (1.1) may not be revoked by the Board under paragraph 7(b).

In the case of an offence referred to in paragraph 4(1)(a), the applicant has the onus of satisfying the Board that the record suspension would provide a measurable benefit to the applicant and would sustain his or her rehabilitation in society as a law-abiding citizen.

In determining whether ordering the record suspension would bring the administration of justice into disrepute, the Board may consider

the nature, gravity and duration of the offence;

the circumstances surrounding the commission of the offence;

information relating to the applicant’s criminal history and, in the case of a service offence, to any service offence history of the applicant that is relevant to the application; and

any factor that is prescribed by regulation.

On receipt of an application for a record suspension, the Board

shall cause inquiries to be made to ascertain whether the applicant is eligible to make the application;

if the applicant is eligible, shall cause inquiries to be made to ascertain the applicant’s conduct since the date of the conviction; and

may, in the case of an offence referred to in paragraph 4(1)(a), cause inquiries to be made with respect to any factors that it may consider in determining whether ordering the record suspension would bring the administration of justice into disrepute.

The inquiries referred to in paragraph (1)(a), made with respect to an application referred to in subsection 4(3.1) or (3.11), are not to take into account the non-payment of any fine or victim surcharge imposed for any offence referred to in Schedule 3.

The inquiries referred to in paragraphs (1)(b) and (c) do not apply to an application referred to in subsection 4(3.1) and, with respect to all other applications for a record suspension, are not to take into account any offence referred to in Schedule 3.

If the Board proposes to refuse to order a record suspension, it shall notify in writing the applicant of its proposal 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, with the Board’s authorization, orally at a hearing held for that purpose.

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).

An applicant may not re-apply for a record suspension until the expiration of one year after the day on which the Board refuses to order a record suspension.

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

any period during which the offender could be entitled to statutory release or any period following a statutory release date; or

any remission that stands to the credit of the offender in respect of the offence.

The Executive Committee shall, after the consultation with Board members that it considers appropriate, adopt policies relating to applications for record suspensions, including related inquiries and proceedings.

[Repealed, 2012, c. 1, s. 119]

The Minister may, by order in writing addressed to a person having the custody or control of a judicial record of a conviction in respect of which a record suspension has been ordered, require that person to deliver that record into the Commissioner’s custody.

A record of a conviction in respect of which a record suspension has been ordered 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. Subject to subsection (2.1), no record of a conviction is to be disclosed to any person, nor is the existence of the record or the fact of the conviction to be disclosed to any person, without the prior approval of the Minister.

The prior approval of the Minister referred to in subsection (2) is not necessary for the purposes of sections 734.5 and 734.6 of the Criminal Code or section 145.1 of the National Defence Act for non-payment of a fine or victim surcharge that is imposed for an offence referred to in Schedule 3.

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.

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.

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

more than one year has elapsed since the offender was discharged absolutely; or

more than three years have elapsed since the day on which the offender was ordered discharged on the conditions prescribed in a probation order.

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).

Despite sections 6 and 6.1, the name, date of birth and last known address of a person whose record is suspended under section 4.1 or who has received 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

at the scene of a crime during an investigation of the crime; or

during an attempt to identify a deceased person or a person suffering from amnesia.

In this section, vulnerable person means a person who, because of his or her age, a disability or other circumstances, whether temporary or permanent,

is in a position of dependency on others; or

is otherwise at a greater risk than the general population of being harmed by a person in a position of trust or authority towards them.

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 an offence listed in Schedule 2 in respect of which a record suspension has been ordered.

At the request of any person or organization responsible for the well-being of a child or vulnerable person 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

the position is one of trust or authority towards that child or vulnerable person; and

the applicant has consented in writing to the verification.

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).

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.

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).

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.

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.

The Governor in Council may, by order, amend Schedule 2 by adding or deleting a reference to an offence.

Section 6.3 applies in respect of a record of a conviction for any offence in respect of which a record suspension has been ordered regardless of the date of the conviction.

A record suspension may be revoked by the Board

if the person to whom it relates is subsequently convicted of an offence referred to in paragraph 4(1)(b), other than an offence referred to in subparagraph 7.2(a)(ii);

on evidence establishing to the satisfaction of the Board that the person to whom it relates is no longer of good conduct; or

on evidence establishing to the satisfaction of the Board that the person to whom it relates knowingly made a false or deceptive statement in relation to the application for the record suspension, or knowingly concealed some material particular in relation to that application.

If the Board proposes to revoke a record suspension, it shall notify in writing the person to whom it relates of its proposal 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, with the Board’s authorization, orally at a hearing held for that purpose.

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 under subsection (1).

A record suspension ceases to have effect if

the person to whom it relates is subsequently convicted of

an offence referred to in paragraph 4(1)(a), or

an offence under the Criminal Code other than an offence under subsection 320.14(1) or 320.15(1) of that Act — or under the Cannabis Act, 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

the Board is convinced by new information that the person was not eligible for the record suspension when it was ordered.

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 record suspension has been ordered and has not been revoked or ceased to have effect:

employment in any department as defined in section 2 of the Financial Administration Act;

employment by any Crown corporation as defined in section 83 of the Financial Administration Act;

enrolment in the Canadian Forces; or

employment on or in connection with the operation of any work, undertaking or business that is within the legislative authority of Parliament.

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.

The Board may disclose decisions that order or refuse to order record suspensions. However, it may not disclose information that could reasonably be expected to identify an individual unless the individual authorizes the disclosure in writing.

The Governor in Council may make regulations

respecting the making of notations in respect of records of conviction, and the verification of such records, for the purposes of section 6.3;

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;

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 before obtaining their consent and the manner in which consent is to be given, for the purposes of subsections 6.3(3) and (7);

prescribing factors for the purposes of paragraph 4.1(3)(d);

respecting the disclosure of decisions under section 9.01; and

generally for carrying out the purposes and provisions of this Act.

Any person who contravenes any provision of this Act is guilty of an offence punishable on summary conviction.

The Board shall, within three months after the end of each fiscal year, submit to the Minister a report for that year containing the following information:

the number of applications for record suspensions made in respect of the offences referred to in each of paragraphs 4(1)(a) and (b);

the number of record suspensions that the Board ordered or refused to order, in respect of the offences referred to in each of paragraphs 4(1)(a) and (b);

the number of record suspensions ordered, categorized by the offence to which they relate and, if applicable, the province of residence of the applicant; and

any other information required by the Minister.

The Minister shall cause the report to be laid before each House of Parliament on any of the first 30 days on which that House is sitting after the day on which the Minister receives it.

Section 6.1 of the Criminal Records Act applies in respect of a discharge under section 736 of the Criminal Code before the day on which this Act comes into force, if the person who was discharged applies to the Royal Canadian Mounted Police to have section 6.1 of that Act apply.

Subject to section 11, an application for a pardon under the Criminal Records Act in respect of an offence that is referred to in paragraph 4(a) of that Act, as it read immediately before the day on which this Act comes into force, and that is committed before that day shall be dealt with and disposed of in accordance with the Criminal Records Act, as amended by this Act.

An application for a pardon under the Criminal Records Act that is made before the day on which this Act comes into force shall be dealt with and disposed of in accordance with the Criminal Records Act, as it read when the Board received the application, if the application

is made after the period referred to in paragraph 4(a) of that Act, as it read immediately before the day on which this Act comes into force, has elapsed; and

is not finally disposed of on the day on which this Act comes into force.

The Criminal Records Act, as it read immediately before the day on which this Act comes into force, applies to a pardon that was granted or issued before that day and that has not been revoked or ceased to have effect.

Subject to section 162, an application for a pardon under the Criminal Records Act in respect of an offence that is referred to in paragraph 4(a) or (b) of that Act, as it read immediately before the day on which this section comes into force, and that is committed before that day shall be dealt with and disposed of in accordance with the Criminal Records Act, as amended by this Part, as though it were an application for a record suspension.

An application for a pardon under the Criminal Records Act that is made on or after the day on which the Limiting Pardons for Serious Crimes Act, chapter 5 of the Statutes of Canada, 2010, came into force and before the day on which this section comes into force shall be dealt with and disposed of in accordance with the Criminal Records Act, as it read when the Board received the application, if the application is not finally disposed of on the day on which this section comes into force.

The Criminal Records Act, as it read immediately before the day on which this section comes into force, applies to a pardon that was granted on or after the day on which the Limiting Pardons for Serious Crimes Act, chapter 5 of the Statutes of Canada, 2010, came into force and before the day on which this section comes into force and that has not been revoked or ceased to have effect.

A reference to a record suspension in the following provisions, as enacted by this Part, is deemed also to be a reference to a pardon that is granted or issued under the Criminal Records Act:

the definition conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered in section 25 of the Canadian Human Rights Act;

the definition record suspension in subsection 490.011(1) of the Criminal Code;

subsection 10(8) of the DNA Identification Act;

paragraphs 36(3)(b) and 53(f) of the Immigration and Refugee Protection Act;

the definition record suspension in section 227 of the National Defence Act; and

subsection 128(5) of the Youth Criminal Justice Act.

Within five years after this section comes into force, a comprehensive review of the provisions and operation of this Act shall be undertaken by such committee of the House of Commons as may be designated or established by the House for that purpose.

The committee referred to in subsection (1) shall, within a year after a review is undertaken pursuant to that subsection or within such further time as the House may authorize, submit a report on the review to the Speaker of the House, including a statement of any changes the committee recommends.

The following definitions apply in this section.

Act means the Criminal Records Act. (Loi)

application means an application for a pardon or record suspension. (demande)

pardon has the same meaning as in subsection 2(1) of the Act as it read from time to time before March 13, 2012. (réhabilitation)

record suspension has the same meaning as in subsection 2(1) of the Act. (suspension du casier)

If an application was made before the day on which this Act comes into force and that application has not been dealt with and disposed of on that day, that application is to be dealt with and disposed of in accordance with the Act, as amended by this Act. However, subsection 4(3.3) of the Act, as enacted by subsection 4(2) of this Act, is not to apply to an application made only with respect to an offence referred to in Schedule 3 of this Act if, on that day, the inquiries referred to in paragraph 4.2(1)(a) of the Act have been completed.

Subsection 4.2(4) of the Act does not apply to an application for a record suspension referred to in subsection 4(3.1) of the Act, as enacted by subsection 4(2) of this Act, if the day on which the Board refuses to grant or issue a pardon or order a record suspension occurs within one year before the day on which this Act comes into force.

In its annual report under section 11 of the Act for the year after the year in which this Act comes into force, the Board shall include information on the number of applications dealt with and disposed of in accordance with the Act, as amended by this Act, the associated costs and the number of suspensions that the Board ordered in respect of those applications, as well as the number that it refused to order.

At the start of the fifth year after the day on which this section comes into force, a comprehensive review of the provisions enacted by this Act must be undertaken by the committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established for that purpose.

The committee referred to in subsection (1) must, within one year after the review is undertaken under that subsection, submit a report to the House or Houses of Parliament of which it is a committee, including a statement setting out any changes to the provisions that the committee recommends.