What you should know about criminal records
by Tushar K. Pain
If you’re facing a criminal charge, a criminal record is a serious concern. A criminal record can affect immigration status, an application for Canadian citizenship, employment, and international travel.
With one exception (which will be discussed below), once you have a criminal record it is permanent unless a Pardon is granted. For summary conviction offences (those that are considered less serious), an application for a Pardon can be made three years after the completion of the sentence. For indictable offences (the more serious offences), the waiting period is five years following the completion of the sentence.
The Pardon application process is long and can take over two years before a final decision is rendered. In the case of summary conviction offences, once the pre-conditions are met, the Pardon must be granted. This is not so for indictable offences. In these cases, the granting of a Pardon is a discretionary matter. This discretion is exercised based on a finding of good conduct of the applicant.
Contrary to popular belief, the granting of a Pardon does not result in the destruction of the criminal record. Upon the granting of a Pardon the record of convictions is to be kept separate and apart from other criminal records. The record shall not be disclosed nor shall the existence of the record or the fact of the conviction be disclosed.
There are limitations to a Pardon. First, the Criminal Records Act, the authority under which Pardons are granted, only applies to records of the RCMP, and departments or agencies of the Government of Canada. Therefore, records kept by other bodies such as municipal police forces may not be in compliance with the same restrictions. Secondly, a Pardon may be revoked or cease to have effect under certain conditions. Thirdly, non-Canadian authorities are not obliged to recognize a Canadian Pardon. For instance, U.S. authorities at the Canada-U.S. border may disallow entry to the States based on a Canadian conviction despite the fact that it has been Pardoned.
The one situation in which an application for a Pardon is not required is where a person has been granted a discharge. A discharge may be granted following a finding of guilt by the court. It can either be absolute or conditional. Conditional discharges are accompanied by periods of probation. With a discharge, there is no conviction. Therefore, one can rightly state that he or she has not been convicted of an offence. However, the discharge does result in a criminal record.
In the case of an absolute discharge, all reference to it is removed from the system after one year and its existence cannot be disclosed. For conditional discharges, the waiting period is three years. This is an automatic process and does not require a formal application.
To gain a complete and accurate understanding of how a criminal record may affect you, a criminal lawyer should be consulted.
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