Criminal record: The stain that won't go away

Some people who have been out of prison for 20 years or more are still finding that their criminal records are coming back to haunt them despite the fact that they have lived crime-free lives all those years. For decades, only a few employers besides law enforcement agencies and some government offices delved into past conduct of applicants looking for work. Now it is standard practice. Companies and volunteer organizations – particularly those that work with children, the elderly or disabled, regulators, landlords and schools are all asking applicants to agree to police checks.

To obtain a police check, the person goes to their local police station and fills out the form and then the police check with the RCMP computer criminal base (CPIC) to see if there is anything on record such as convictions or existing charges not yet dealt with. If nothing shows up, then the person is given the form back with the police notation that there is no record.

A criminal record is enough to prevent someone from being hired in a variety of jobs that require background criminal record checks. Many jobs in banking, health care, teaching, security and government require a clean criminal record. And it isn't just for paid work. Volunteer positions frequently require a clean record check, too. Even insurance companies have the right to ask if an applicant for a policy as been convicted of a criminal offence for which a pardon has not been received although I don’t think that is a common practice with insurance companies nowadays.

In August 2008, the Supreme Court of Canada ruled that the Montreal police were wrong to reject a would-be police officer just because she once pleaded guilty to theft and received a conditional discharge. The woman, identified only as S.N., was caught shoplifting in 1990 at the age of 21; she pleaded guilty in 1991 and applied to join the police force in 1995. In a 6-2 decision joined by Chief Justice Beverley McLachlin, the Supreme Court confirmed two lower-court rulings and a decision by the Quebec Human Rights Tribunal, which awarded the woman $5,000 in damages after she gave up on becoming a police officer. The court said the police force was entitled to consider whether she was of good moral character but it had to base its judgment on more facts than just a guilty plea. The case turned partly on the nature of a conditional discharge, one of the gentlest sentencing options available to a judge.

No conviction is registered as long as the accused abides by conditions specified in a probation order. Under federal law, the woman had effectively been pardoned before she applied to the police force for a job. The ‘Criminal Records Act’ bars federal agencies from disclosing the existence of a criminal record or the fact of the discharge for a non-indictable offence if more than three years has elapsed since the offender was discharged conditionally.

Under the Police Act, being of good moral character and not having a criminal record are separate criteria. The facts giving rise to a conviction are therefore on their own, an insufficient basis for rejecting a candidate for not being of good moral character. However, a pardon does not erase the past. The police force was entitled to consider the facts that led to a finding of guilt but couldn't base its decision solely on that finding alone.

Private investigation agencies are often hired to check the backgrounds of new employees in relation to charges for which someone may not have been convicted. Everyone who is charged at some point has information sworn against them in court. That information is a public record if you know how to track it down however, trying to get the information from the Ontario archives is impossible without knowing the specific code that will get you to the files and that code simply isn’t given to anyone without first obtaining a court order and that is highly unlikely to happen.

In the past, when a person applied for a licence as a private investigator or as a security guard in Ontario, he had to disclose his past convictions even if he had been pardoned. When I heard of this, I prepared a paper on it and sent it onto the government. Years later, that all changed. Now when an applicant is given the application form to fill out, one of the questions asked of him is whether or not he has ever been convicted of a crime of which he has not received a pardon. If he has received a pardon, then he simply puts a check mark in the box that says NO to the question as to whether he has a criminal record. He must however send the police check document along with the application for further evidence that he is living a crime-free life.

Law Societies are insisting that applicants who are seeking membership (the right to practice law) must disclose whether or not they were ever convicted of a crime, and disclose the particulars of the crime even if the applicant was later pardoned after the sentence was completed and even if the conviction was forty or more years ago. In my opinion, this is ludicrous. How could a 40-year-old conviction possibly have any bearing on what the person is like 40 years later?

More than 2.9 million people in Canada have records in the Canadian Police Information Centre (CPIC), according to a one-day snapshot of the database from 2005 obtained by the Toronto Star in a freedom of information request. Included were some 500,000 records for people without convictions, including instances where charges were stayed, withdrawn or for which the individual was found not guilty.

Toronto police keep fingerprints, photographs and records for non-convictions even though the Commission has argued those records should be destroyed. That is impractical as there are 140,000 charges brought before Toronto courts annually, of which 45 per cent result in non-convictions.

In the fall of 2009, the Ontario Court of Appeal is set to hear an important case over police releasing personal information for a reference check. The privacy commissioner has taken the rare step of seeking intervener status because of its implications.

In 2002, the Ontario Court of Appeal ruled that people have the right to request that police destroy records relating to charges that did not result in a conviction. All the person has to do is write the police department that has that record in its files to have the particulars of the arrest, his photograph and fingerprints destroyed. If the charges wee stayed or withdraw, he has to wait a year because the crown has a year to relay the charges. If the crown doesn’t proceed any further on the charges after a year, the police have to make the presumption that the accused was never convicted and then, at the accused person’s request, destroy the records and everything in the records.

In 1970, Canada brought in the Criminal Records Act, which allowed for a more systemic granting of pardons for those who had demonstrated good conduct. I played a small role in the creation of the revision of the Act when I was invited to submit my views of the proposed revision. I suggested that if for any reason, the application for a pardon was refused; an explanation must be given to the applicant. Prior to that, no explanation was given.

After the revised Act came into force, a friend of mine applied for a pardon and was refused. He was told that the reason for the refusal was that he had been known to have associated with known criminals. That was true but the Ontario Provincial Police had asked him to go undercover for them with respect to investigating some criminals. When I passed this information to the chairman of the National Parole Board (which makes the recommendations for pardons) my friend got an apology from the Solicitor General of Canada and three weeks later, he got his pardon. Had he not been informed why his application was refused, he wouldn’t have been able to refute the reasons for the refusal.

RCMP statistics show that 3.3 million Canadians have a criminal record. That is roughly ten percent of the people living in Canada. The vast majority of these people are eligible for a federal pardon once certain conditions are met. But fewer than 10 per cent of Canadians with records have applied for a pardon that would seal their criminal records (with some notable exceptions).

A pardon is simply ‘a recognition that the applicant is of good conduct.’ The purpose of a pardon is to give people a second chance, so that those convicted of a crime won't be tarred for the rest of their lives for crimes committed years earlier.

If a pardon is granted, information about that person's criminal record is taken out of the Canadian Police Information Centre (CPIC) and information about the conviction(s) cannot be given out without the approval of the federal solicitor general. The criminal record is effectively ‘sealed’ once the pardon is granted.

Although local police forces are suppose to place the sealed pardons in a separate location, there have been instances where they have opened them up. I remember learning of a case where the man had received his pardon and when he filed a complaint against a police officer years later, he saw his old criminal record on the desk of the officer that was interviewing him. The federal Criminal Records Act prohibits police from disclosing convictions for which a pardon has been granted. Police officers have been fired for doing this. In fact, they can be fired for just searching the files in CPIC without a justifiable reason.

I should point out that even if a Canadian has a pardon, he cannot enter or fly over the United States without first obtaining a waiver every time he wishes to enter or fly over the USA. This doesn’t apply to those who were pardoned prior to the RCMP’s computer’s criminal data files being linked with the FBI’s criminal data files. The mutual linking of the files took place just after 1985. Because the United States has 50 states with each state having its own criminal code, the US compares the criminal code of Washington, D.C., to compare its code with the Canadian criminal code before making a decision to refuse entry into the United States of a Canadian who has a Canadian a pardon.

Most people convicted of a crime are, or will be eligible for a pardon. Anyone convicted of an offence under a federal act or regulation can apply. But there are some conditions and limitations. For one thing, people wanting a pardon must have completed their sentences, including parole or statutory release, satisfied all their probation orders, and paid all fines, costs and compensation orders. There's also a waiting period. For those convicted of summary conviction offences, they must wait three years. For those convicted of more serious indictable offences, the wait is five years.

There are limitations. For example, the granting of a pardon does not mean that all record of the conviction is wiped out. So if someone is convicted of a second offence, the prosecution can still present the court with evidence of the first conviction. For those who are convicted of first degree murder will for the most part, not get a pardon because they will be on parole for the rest of their lives. People convicted of sex offences are eligible for pardons. But for some sex offences, the conviction will remain on the CPIC computer system as well as the sex offender’s data base also with respect to that particular base, the information is removed after ten years have elapsed. Another limitation applies to prohibitions on driving or owning firearms. Pardons do not cancel these. For example, if there is a life-long ban on driving or possession of firearms, the bans remain in force.

The pardon application process was further streamlined in 1992 and the number of pardons granted and issued rose dramatically. Anyone convicted of an offence after July 24, 1992, and given an absolute discharge would automatically have his or her conviction removed from the police computer system one year after the court ruling. No application is necessary. For those convicted after July 24, 1992, and given a conditional discharge, the conviction information is automatically removed after three years.

For those given absolute or conditional discharges before that 1992 cutoff date, they must write to the RCMP to have the conviction information purged. People convicted of crimes solely in youth courts do not need to apply for a pardon. Their records are automatically destroyed. For those convicted in both adult and youth courts, a pardon application would be necessary

When the person’s criminal record is destroyed in the police stations and the RCMP’s database, the court records which are filed in the province’s archives are also destroyed. So in effect, the person no longer has a criminal record so when he is asked if he has a criminal record, he can truthfully say that he doesn’t have a criminal record. If on the other hand, he is asked if he has ever been convicted of a crime, he couldn’t truthfully say that he hasn’t. However, unless there is a newspaper article that can be retrieved in which the person’s trial was written about and his conviction stated in the newspaper, it would be impossible for anyone to determine if he is telling the truth when he says he hasn’t been convicted of a criminal offence.

If a person doesn’t apply for a pardon and he reaches the age of 80, his records will be purged both from the police stations and the archives providing he has been crime free for the previous ten years. If he was convicted when he was seventy one, then his records would be destroyed when he turns 81.

Pardons Canada, a not-for-profit company that, for $460 plus tax, offers to handle all the paperwork for people seeking to expunge their criminal record. It isn’t really necessary for someone to pay that kind of money for an application for a pardon. All a person has to do is go to the National Parole Board website and download the application form. No one needs a lawyer or representative to apply for a pardon because this will not accelerate the review of your application or convey a special status on it. The National Parole Board treats all applications in the same way. There is a $50.00 fee however and the police will charge $40.00 for the police check so other than a total of $90.00 and the cost of a stamp, anyone can send the application in on their own. The forms are easy to fill out.

For more information on pardon Canada, please visit The National Pardon Centre at nationalpardon.org.