TOPIC #11 - Obtaining
a Pardon for Criminal Offences
What is a
criminal pardon?
A pardon is a
government act that seals or
expunges a criminal record.
Is there more
than one type of criminal pardon?
Canada has essentially two types of
pardons. One is a free pardon and
one is a conditional pardon. Both
the Criminal Records Act and the
Criminal Code provides for the
granting of conditional pardons,
but a free pardon can only be
obtained under the Criminal Code
provisions.
Under the Criminal Code, the
power to grant both free and
conditional pardons is essentially
the prerogative of the Government of
Canada, allowing the Cabinet to
exercise an unfettered discretion.
As such, the granting of a pardon
under this section of the
Criminal Code is rarely, if
ever, used. More commonly a
conditional pardon is granted under
the Criminal Records Act.
What is the
difference between a free pardon and
a conditional pardon?
When an
individual receives a free pardon,
that person shall be deemed
thereafter never to have committed
the offence in respect of which the
pardon is granted”. Thus a recipient
of such a pardon may rightfully
answer that he or she has never been
convicted of the pardoned offence.
For adults, all other pardons,
including pardons under the
Criminal Records Act are
conditional pardons, meaning they do
not nullify the original conviction.
How do I
become eligible for a
pardon?
The
National Parole Board has exclusive
jurisdiction to grant pardons under
the Criminal Records Act. As
long as the applicant meets the
criteria set out in the act, he or
she will receive a pardon under the
act. The criterion for eligibility
depends on the type of offence to be
pardoned. Two different waiting
periods apply; five years for an
indictable offence and three years
for a summary offence.
For summary offences, a pardon is
available 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 three year
period from the date the sentence is
completed. For indictable
convictions, the waiting period is
five years from the date the
sentence is completed. In addition,
the Applicant must also be of good
conduct during that five year period
in order to be eligible for a pardon
for an indictable offence.
When is a
sentence considered “completed”?
A sentence is not completed
until all terms of probation have
expired as well as the payment of
any fines or restitution orders. In
calculating the period, a jail
sentence is considered to end only
on the expiration of the stated
period of the sentence and not when
the offender is actually released.
Thus it is impossible for somebody
serving a life sentence to be
eligible for a pardon even if they
receive parole.
What is the
advantage of a pardon?
According to the Criminal Records
Act, a pardon under the act is
evidence of the fact the conviction
in respect of which the pardon is
granted or issued should no longer
reflect adversely on the applicant's
character and except if revoked,
vacates the conviction in respect
of which it is granted and for most
purposes, removes any
disqualification to which the person
so convicted would be subject. For
immigrants and potential immigrants,
a pardon removes a potential
obstacle to becoming a Canadian
citizen or landed immigrant.
Another advantage is that federal
government records concerning
convictions for pardoned offences
must generally be kept separate and
cannot be disclosed.
The principle advantage to a pardon
relates to employment and access to
educational and other institutions
for which a criminal record might be
an impediment. The act prohibits
application forms that require an
individual to disclose a pardoned
record.
Can a pardon
be denied?
The National
Parole Board can deny an applicant
on the basis that the applicant is
found to be not of good conduct.
However, applicants may reapply
after one year.
Will my
employer know about my application
for a pardon?
Maybe. In some
instances, The National Parole Board
may make inquiries with the
applicant's employer about their
character.
What are the
limitations to a grant of pardon?
A conditional pardon under the
Criminal Records Act does not
remove the fact that a person was
convicted. Thus foreign governments
will normally not recognize such a
pardon. As well, consequent
prohibitions arising from a
conviction, for instance,
prohibitions on possession of a
firearm or on driving are not
affected by a pardon although the
period of the prohibition is not
used in calculating the waiting
period. A free pardon may be
recognized by foreign governments.
Can a pardon
be revoked?
Only a pardon
under the Criminal Records Act
is subject to revocation. Such a
pardon is automatically revoked by a
subsequent conviction for an
indictable offence. Otherwise, the
National Parole Board has the
discretion to revoke a pardon on a
hearing with notice to the applicant
when the person is:
1) Convicted of a summary offence;
2) On evidence the person is no
longer of good character; or
3) If satisfactory evidence
establishes the individual obtained
the pardon by knowingly making a
false
representation or knowingly
concealing a material particular.
This type of
revocation is not automatic and the
subject party may be able to make
representations in writing or orally
that the pardon should stand.
Evidence that a person is no longer
of good character might be furnished
by a conviction in another country
or perhaps by other means.
Do I need a
pardon for a conditional discharge?
Conditional and absolute discharges
do not require a pardon. Absolute
discharges granted after July 24,
1992 will automatically be removed
from a criminal record after one
year. A conditional discharge will
automatically be removed after three
years.
How do I apply a
pardon?
A pardon is only
available on application to the
National Parole Board. You may
complete the application on your own
or are entitled to retain a lawyer
to assist you. The board processes
about 10,000 applications a year and
the backlog of cases may mean that
an application will take as long as
two years to process. An incorrectly
completed application may
substantially delay the process.
To consult with me
about obtaining a criminal pardon,
contact me at 416.297.7200 for a
free consultation.
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