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The topics in the Dial-A-Law series provide general information on a wide variety of legal issues in the Province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation.
This topic will discuss how to obtain a Record Suspension for your criminal record.
Obtaining a criminal record is a very serious matter which often breeds significant long term impacts on the lives of those who possess one. It may prevent your membership in certain organizations, prevent you from being bonded or obtaining certain licences or affect your employment. A criminal record may also present serious constraints (restrictions) on your ability to travel. For example, those with criminal records may not be able to travel to the United States unless they obtain written permission such as an Entry Waiver. If you are caught trying to enter the United States illegally, you may be detained, arrested and deported. United States officials have the right to confiscate vehicles and personal property if you attempt to enter the United States illegally.
A record suspension serves the purpose of keeping a criminal record separate and apart from other records. You may apply for a record suspension if you were convicted of an offence under federal law. Examples of Federal law include the following; the Criminal Code of Canada, the Controlled Drugs and Substance Act, the Customs and Excise Act, the Income Tax Act, and the Bankruptcy Act. You may also apply for a record suspension even if you are not a Canadian resident or citizen or if you committed your offence in another country and were transferred to Canada. Before an offender can apply they must ensure that they completed their entire sentence and endured a required waiting period after the completion of their sentence. In the case of Criminal Code summary offences you must wait 3 years before applying for a record suspension; if you were convicted of an indictable offence you will have to wait a maximum of 5 years. If you received a conviction, start counting from the date you completed your sentence. For example, if you received a fine, your sentence is complete after you paid the fine in full. If you were put on probation, your sentence is complete at the end of your probation period. If you had to serve time in prison, then your sentence is complete only on the date that your prison term expires.
If you receive a conditional discharge, or an absolute discharge, then you start counting the waiting period from your court date. If you received your discharge before July 24, 1992, the waiting periods was 3 months for withdrawn, dismissed or acquitted charges, 1 year for absolute discharges, and 3 years for conditional discharges. However, after July 24, 1992 the RCMP will automatically remove the discharge from their computer. If you were given a conditional discharge, the information is removed 3 years after the Court decision.
If you are not certain whether you were convicted of a summary or indictable offence you may wish to contact the Clerk of the Court in the Court where you were convicted. You must have the date of your trial so that the clerk can check the Court records. If you have a record from the Youth division of the Provincial Court, you do not have to apply for a record suspension. Your criminal record will be destroyed according to provisions of the Youth Criminal Justice Act.
All record suspension are granted by Pardons Canada, under the Criminal Records Act. If the board decides to grant you a record suspension, it will have the effect of sealing your criminal records such as your fingerprints, photographs, and RCMP and Court records. These files cannot be disclosed unless the Minister of Public Safety Canada provides authorization. If you are charged with another offence, these records will no longer remain sealed.
Record Suspension also have important limitations that should be pointed out. First, a record suspension does not mean that the criminal record is completely erased. In addition, receiving a record suspension does not necessarily mean that you will be granted entry into another country. Finally, you may also be required to uphold conditions imposed on you such as a prohibition on possessing firearms or being around children, irrespective of the pardon.
If you received a conviction under provincial or municipal laws, Courts and police services are not required to keep your record separate and apart. Some local police forces do not remove your record from their files. They claim that a local police force is not a federal government department and they need to keep the record for the purposes of administering their duties as peace officers. The record may also be on the files of Interpol or the Federal Bureau of Investigation in the United States.
The application form for a record suspension is available at your local police station. The fees charged for a pardon will range from $50 to $350 and may include police, Court, RCMP and other government application fees. It can take 12 to 20 months for the record suspension application to be completed. Start collecting the documentation as soon as possible as that could take between 3-9 months.
Pardons Canada will not refuse your record suspension unless they are completely satisfied that you are not entitled. For example, if they find that you are not of good conduct, you may reapply after 1 year but you would not be advised to do so unless your circumstances have changed since your first application. Otherwise the circumstances they considered in your first application may work against you once more. Pardons Canada may take away your record suspension if they find that you are no longer of good conduct or that you made a false statement or withheld certain information on your application.
Federal government departments, agencies and employers are forbidden to discriminate on the basis of a criminal record that has been suspended. However, if you apply for jobs that require bonding to handle money, you may have difficulty in getting hired or bonded. The application forms often ask that question “Have you ever been convicted of a criminal offence?” You must answer truthfully, even though you have your record suspended.