Criminal Records Act

CHAPTER C-47

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

SHORT TITLE

1. This Act may be cited as the Criminal Records Act.

R.S., c. 12(1st Supp.), s. 1.

INTERPRETATION

2. (1) 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) 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(3) [Repealed, 1992, c. 22, s. 1]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 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) 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) 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) 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) 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. 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) an offence prosecuted by indictment, or

(ii) a service offence within the meaning of the National Defence Act for which the offender was punished by a fine of more than two 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 that Act; 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 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) 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) 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) 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) 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) 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) 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 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. 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) 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) 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) 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) 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) 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) 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 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) 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) 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) 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) 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) 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) 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) 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) 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) 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 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. 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) 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) 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 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.

GENERAL

8. 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. 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 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. 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.

SCHEDULE

(Subsections 6.3(2) and (9))

1. Offences under the following provisions of the Criminal Code:

(a) subsection 7(4.1) (sexual offence against a child by an act or omission outside Canada);

(b) section 151 (sexual interference with a person under 14);

(c) section 152 (invitation to a person under 14 to sexual touching);

(d) section 153 (sexual exploitation of a person 14 or more but under 18);

(e) section 153.1 (sexual exploitation of a person with a disability);

(f) section 155 (incest);

(g) section 159 (anal intercourse);

(h) subsection 160(3) (bestiality in the presence of a person under 14 or inciting a person under 14 to commit bestiality);

(i) paragraph 163(1)(a) (obscene materials);

(j) paragraph 163(2)(a) (obscene materials);

(k) section 163.1 (child pornography);

(l) section 168 (mailing obscene matter);

(m) section 170 (parent or guardian procuring sexual activity);

(n) section 171 (householder permitting sexual activity);

(o) section 172 (corrupting children);

(p) section 173 (indecent acts);

(q) subsection 212(2) (living on avails of prostitution of a person under 18);

(r) subsection 212(2.1) (living on avails of prostitution of a person under 18);

(s) subsection 212(4) (obtain, or attempt to obtain, sexual services of a person under 18);

(t) section 271 (sexual assault);

(u) subsection 272(1) and paragraph 272(2)(a) (sexual assault with firearm);

(v) subsection 272(1) and paragraph 272(2)(b) (sexual assault other than with firearm);

(w) section 273 (aggravated sexual assault);

(x) paragraph 273.3(1)(a) (removal of child under 14 from Canada for purposes of listed offences);

(y) paragraph 273.3(1)(b) (removal of child 14 or more but under 18 from Canada for purpose of listed offence);

(z) paragraph 273.3(1)(c) (removal of child under 18 from Canada for purposes of listed offences);

(z.1) section 280 (abduction of a person under 16);

(z.2) section 281 (abduction of a person under 14);

(z.3) paragraph 348(1)(a) with respect to breaking and entering a place with intent to commit in that place an indictable offence listed in this schedule;

(z.4) paragraph 348(1)(b) with respect to breaking and entering a place and committing in that place an indictable offence listed in this schedule;

(z.5) subsection 372(2) (indecent phone calls); and

(z.6) section 463 with respect to an attempt to commit an offence listed in this section or with respect to being an accessory after the fact to the commission of an offence listed in this schedule.

2. Offences under the following provisions of the Criminal Code, R.S.C. 1970, c. C-34, as that Act read before January 1988:

(a) subsection 146(1) (sexual intercourse with a female under 14);

(b) subsection 146(2) (sexual intercourse with a female 14 or more but under 16);

(c) section 151 (seduction of a female 16 or more but under 18);

(d) section 153 (sexual intercourse with stepdaughter, etc., or female employee);

(e) section 155 (buggery or bestiality);

(f) section 157 (gross indecency);

(g) section 166 (parent or guardian procuring defilement); and

(h) section 167 (householder permitting defilement).

3. Offences under the following provisions of the Criminal Code, R.S.C. 1970, c. C-34, as that Act read before January 1983:

(a) section 144 (rape);

(b) section 145 (attempt to commit rape);

(c) section 149 (indecent assault on female);

(d) section 156 (indecent assault on male);

(e) section 245 (common assault); and

(f) subsection 246(1) (assault with intent to commit an indictable offence).

R.S., 1985, c. C-47, Sch.; 1992, c. 22, s. 10; 2000, c. 1, s. 8.1.

RELATED PROVISION

-- 1992, c. 22, s. 11:

11. 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.