Bill C-23B

3rd Session, 40th Parliament,

59 Elizabeth II, 2010

house of commons of canada

BILL C-23B

An Act to amend the Criminal Records Act and to make consequential amendments to other Acts

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

1. This Act may be cited as the Eliminating Pardons for Serious Crimes Act.

CRIMINAL RECORDS ACT

2. The long title of the Criminal Records Act is replaced by the following:

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

3. (1) The definition “pardon” in subsection 2(1) of the Act is repealed.

(2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:

“child” means a person who is less than 18 years of age;

“Executive Committee” means the Executive Committee of the Board referred to in subsection 151(1) of the Corrections and Conditional Release Act;

“record suspension” means a measure ordered by the Board under section 4.1;

“service offence” has the same meaning as in subsection 2(1) of the National Defence Act;

4. Section 2.1 of the Act is replaced by the following:

2.1 The Board has exclusive jurisdiction and absolute discretion to order, refuse to order or revoke a record suspension.

5. (1) Subsection 2.2(1) of the Act is replaced by the following:

2.2 (1) An application for a record suspension shall be determined, and a decision whether to revoke a record suspension under section 7 shall be made, by a panel that consists of one member of the Board.

(2) Subsection 2.2(2) of the English version of the Act is replaced by the following:

(2) The Chairperson of the Board may direct that the number of members of the Board required to constitute a panel to determine an application for a record suspension, to decide whether to revoke a record suspension under section 7 or to determine any class of those applications or make any class of those decisions shall be greater than one.

6. The Act is amended by adding the following after section 2.2:

EFFECT OF RECORD SUSPENSION

2.3 A record suspension

(a) is evidence of the fact that

(i) the Board, after making inquiries, was satisfied that the applicant was of good conduct, and

(ii) the conviction in respect of which the record suspension is ordered should no longer reflect adversely on the applicant’s character; and

(b) unless the record suspension is subsequently revoked or ceases to have effect, requires that the judicial record of the conviction be kept separate and apart from other criminal records and removes any disqualification or obligation to which the applicant is, by reason of the conviction, subject under any Act of Parliament, other than section 109, 110, 161, 259, 490.012 or 490.019 of the Criminal Code or subsection 147.1(1) or section 227.01 or 227.06 of the National Defence Act.

7. The heading before section 3 of the Act is replaced by the following:

APPLICATION FOR RECORD SUSPENSION

8. Subsection 3(1) of the Act is replaced by the following:

3. (1) Subject to section 4, a person who has been convicted of an offence under an Act of Parliament may apply to the Board for a record suspension in respect of that offence, and a Canadian offender, within the meaning of the International Transfer of Offenders Act, who has been transferred to Canada under that Act may apply to the Board for a record suspension in respect of the offence of which he or she has been found guilty.

9. Sections 4 to 4.1 of the Act are replaced by the following:

4. (1) A person is ineligible to apply for a record suspension until the following period has elapsed after the expiry 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:

(a) 10 years, in the case of an offence that is prosecuted by indictment or is a service offence for which the offender was punished by a fine of more than five 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 the National Defence Act; or

(b) five years, in the case of an offence that is punishable on summary conviction or is a service offence other than a service offence referred to in paragraph (a).

(2) Subject to subsection (3), a person is ineligible to apply for a record suspension if he or she has been convicted of

(a) an offence referred to in Schedule 1; or

(b) more than three offences each of which either was prosecuted by indictment or is a service offence that is subject to a maximum punishment of imprisonment for life and for which the person was sentenced to imprisonment for two years or more.

(3) A person who has been convicted of an offence referred to in item 3 of Schedule 1 may apply for a record suspension if the Board is satisfied that

(a) the person was not in a position of trust or authority towards the victim of the offence and the victim was not in a relationship of dependency with him or her;

(b) the person did not use, threaten to use or attempt to use violence, intimidation or coercion in relation to the victim; and

(c) the person was less than five years older than the victim.

(4) The person has the onus of satisfying the Board that the conditions referred to in subsection (3) are met.

4.01 The period during which a person is supervised under 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 subsection 4(1).

4.1 (1) The Board may order that an applicant’s record in respect of an offence be suspended if the Board is satisfied that

(a) the applicant, during the applicable period referred to in subsection 4(1), has been of good conduct and has not been convicted of an offence under an Act of Parliament; and

(b) in the case of an offence referred to in paragraph 4(1)(a), ordering the record suspension at that time would provide a measurable benefit to the applicant, would sustain his or her rehabilitation in society as a law-abiding citizen and would not bring the administration of justice into disrepute.

(2) In the case of an offence referred to in paragraph 4(1)(a), the applicant has the onus of satisfying the Board that the record suspension would provide a measurable benefit to the applicant and would sustain his or her rehabil- itation in society as a law-abiding citizen.

(3) In determining whether ordering the record suspension would bring the administration of justice into disrepute, the Board may consider

(a) the nature, gravity and duration of the offence;

(b) the circumstances surrounding the commission of the offence;

(c) information relating to the applicant’s criminal history and, in the case of a service offence, to any service offence history of the applicant that is relevant to the application; and

(d) any factor that is prescribed by regulation.

10. (1) Subsections 4.2(1) and (2) of the Act are replaced by the following:

4.2 (1) On receipt of an application for a record suspension, the Board

(a) shall cause inquiries to be made to ascertain whether the applicant is eligible to make the application;

(b) if the applicant is eligible, shall cause inquiries to be made to ascertain the applicant’s conduct since the date of the conviction; and

(c) may, in the case of an offence referred to in paragraph 4(1)(a), cause inquiries to be made with respect to any factors that it may consider in determining whether ordering the record suspension would bring the administration of justice into disrepute.

(2) If the Board proposes to refuse to order a record suspension, it shall notify in writing the applicant of its proposal 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, with the Board’s authorization, orally at a hearing held for that purpose.

(2) Subsection 4.2(4) of the Act is replaced by the following:

(4) An applicant may not re-apply for a record suspension until the expiry of one year after the day on which the Board refuses to order a record suspension.

11. The Act is amended by adding the following after section 4.3:

4.4 The Executive Committee shall, after the consultation with Board members that it considers appropriate, adopt policies relating to applications for record suspensions, including related inquiries and proceedings.

12. Section 5 of the Act and the heading before it are repealed.

13. Subsections 6(1) and (2) of the Act are replaced by the following:

6. (1) The Minister may, by order in writing addressed to a person having the custody or control of a judicial record of a conviction in respect of which a record suspension has been ordered, require that person to deliver that record into the Commissioner’s custody.

(2) A record of a conviction in respect of which a record suspension has been ordered 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. 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.

14. The portion of section 6.2 of the Act before paragraph (a) is replaced by the following:

6.2 Despite sections 6 and 6.1, the name, date of birth and last known address of a person whose record is suspended under section 4.1 or who has received 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

15. (1) Subsections 6.3(1) to (3) of the Act are replaced by the following:

6.3 (1) In this section, “vulnerable person” means a person who, because of his or her age, a disability or other circumstances, whether temporary or permanent,

(a) is in a position of dependency on others; or

(b) is otherwise at a greater risk than the general population of being harmed by a person in a position of trust or authority towards 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 an offence listed in Schedule 2 in respect of which a record suspension has been ordered.

(3) At the request of any person or organization responsible for the well-being of a child or vulnerable person 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 trust or authority towards that child or vulnerable person; and

(b) the applicant has consented in writing to the verification.

(2) Subsection 6.3(9) of the Act is replaced by the following:

(9) The Governor in Council may, by order, amend Schedule 1 or 2 by adding or deleting a reference to an offence.

16. Section 6.4 of the Act is replaced by the following:

6.4 Section 6.3 applies in respect of a record of a conviction for any offence in respect of which a record suspension has been ordered regardless of the date of the conviction.

17. Section 7 of the Act is replaced by the following:

7. A record suspension may be revoked by the Board

(a) if the person to whom it relates is subsequently convicted of an offence referred to in paragraph 4(1)(b);

(b) on evidence establishing to the satisfaction of the Board that the person to whom it relates is no longer of good conduct; or

(c) on evidence establishing to the satisfaction of the Board that the person to whom it relates knowingly made a false or deceptive statement in relation to the application for the record suspension, or knowingly concealed some material particular in relation to that application.

18. (1) Subsection 7.1(1) of the Act is replaced by the following:

7.1 (1) If the Board proposes to revoke a record suspension, it shall notify in writing the person to whom it relates of its proposal 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, with the Board’s authorization, orally at a hearing held for that purpose.

(2) Subsection 7.1(2) of the English version of the Act is replaced by the following:

(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 under subsection (1).

19. Section 7.2 of the Act is replaced by the following:

7.2 A record suspension ceases to have effect if

(a) the person to whom it relates is subsequently convicted of

(i) an offence referred to in paragraph 4(1)(a), or

(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

(b) the Board is convinced by new information that the person was not eligible for the record suspension when it was ordered.

20. The portion of section 8 of the Act before paragraph (a) is replaced by the following:

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 record suspension has been ordered and has not been revoked or ceased to have effect:

21. The Act is amended by adding the following after section 9:

9.01 The Board may disclose decisions that order or refuse to order record suspensions. However, it may not disclose information that could reasonably be expected to identify an individual unless the individual authorizes the disclosure in writing.

22. (1) Paragraph 9.1(c) of the English version of the Act is replaced by the following:

(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 before obtaining their consent and the manner in which consent is to be given, for the purposes of subsections 6.3(3) and (7);

(2) Section 9.1 of the Act is amended by adding the following after paragraph (c):

(c.1) prescribing factors for the purposes of paragraph 4.1(3)(d);

(c.2) respecting the disclosure of decisions under section 9.01; and

23. The Act is amended by adding the following after section 10:

REPORT TO PARLIAMENT

11. (1) The Board shall, within three months after the end of each fiscal year, submit to the Minister a report for that year containing the following information:

(a) the number of applications for record suspensions made in respect of the offences referred to in each of paragraphs 4(1)(a) and (b);

(b) the number of record suspensions that the Board ordered or refused to order, in respect of the offences referred to in each of paragraphs 4(1)(a) and (b);

(c) the number of record suspensions ordered, categorized by the offence to which they relate and, if applicable, the province of residence of the applicant; and

(d) any other information required by the Minister.

(2) The Minister shall cause the report to be laid before each House of Parliament on any of the first 30 days on which that House is sitting after the day on which the Minister receives it.

24. Schedule 2 to the Act is replaced by the schedule set out in the schedule to this Act.

CONSEQUENTIAL AMENDMENTS

Canadian Human Rights Act

25. Section 2 of the English version of the Canadian Human Rights Act is replaced by the following:

2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.

26. Subsection 3(1) of the English version of the Act is replaced by the following:

3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.

27. (1) The definition “conviction for which a pardon has been granted” in section 25 of the English version of the Act is repealed.

(2) The definition “état de personne graciée” in section 25 of the French version of the Act is replaced by the following:

(3) Section 25 of the English version of the Act is amended by adding the following in alphabetical order:

“conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered” means a conviction of an individual for an offence in respect of which a pardon has been granted by any authority under law, or a record suspension has been ordered under the Criminal Records Act, that has not been revoked or ceased to have effect;

Contraventions Act

28. Section 63 of the French version of the Contraventions Act is replaced by the following:

Criminal Code

29. (1) The definition “réhabilitation” in subsection 490.011(1) of the French version of the Criminal Code is repealed.

(2) The definition “pardon” in subsection 490.011(1) of the English version of the Act is replaced by the following:

“pardon” means a pardon granted by any authority under law, other than a free pardon granted under Her Majesty’s royal prerogative of mercy or under section 748, that has not been revoked or ceased to have effect.

(3) Subsection 490.011(1) of the Act is amended by adding the following in alphabetical order:

“record suspension” means a record suspension, as defined in subsection 2(1) of the Criminal Records Act, that has not been revoked or ceased to have effect.

(4) Subsection 490.011(1) of the French version of the Act is amended by adding the following in alphabetical order:

30. (1) Subsection 490.015(3) of the Act is replaced by the following:

(3) Despite subsections (1) and (2), a person may apply for a termination order once they receive a pardon or once a record suspension is ordered.

(2) Subsection 490.015(5) of the Act is replaced by the following:

(5) A person whose application is refused may re-apply if five years have elapsed since they made the previous application. They may also re-apply once they receive a pardon or once a record suspension is ordered. However, they may not re-apply under this subsection if an order is made with respect to them under section 490.012 of this Act or section 227.01 of the National Defence Act after the previous application was made.

31. Paragraph 490.022(2)(c) of the Act is replaced by the following:

(c) the day on which a person referred to in paragraph 490.02(1)(b) provides satisfactory proof of a pardon or record suspension to a person who collects information, within the meaning of subsection 3(1) of the Sex Offender Information Registration Act, at a registration centre.

32. Subsections 490.026(4) and (5) of the Act are replaced by the following:

(4) Despite subsections (2) and (3), a person may apply for a termination order once they receive a pardon or once a record suspension is ordered.

(5) A person whose application is refused may re-apply if five years have elapsed since they made the previous application. They may also re-apply once they receive a pardon or once a record suspension is ordered. However, they may not re-apply under this subsection if an order is made with respect to them under section 490.012 of this Act or section 227.01 of the National Defence Act after the previous application was made.

33. Paragraph 672.35(c) of the Act is replaced by the following:

(c) the National Parole Board or any provincial parole board may take the verdict into account in considering an application by the accused for parole or for a record suspension under the Criminal Records Act in respect of any other offence.

34. Subsection 750(4) of the Act is replaced by the following:

(4) A person to whom subsection (3) applies may, at any time before a record suspension for which he or she has applied is ordered under the Criminal Records Act, apply to the Governor in Council for the restoration of one or more of the capacities lost by the person by virtue of that subsection.

DNA Identification Act

35. Subsection 10(8) of the DNA Identification Act is replaced by the following:

(8) Despite anything in this section, stored bodily substances of a person in respect of whom a record suspension, as defined in subsection 2(1) of the Criminal Records Act, is in effect shall be kept separate and apart from other stored bodily substances, and no such bodily substance shall be used for forensic DNA analysis, nor shall the existence of such a bodily substance be communicated to any person.

Immigration and Refugee Protection Act

36. Paragraph 36(3)(b) of the Immigration and Refugee Protection Act is replaced by the following:

(b) inadmissibility under subsections (1) and (2) may not be based on a conviction in respect of which a record suspension has been ordered and has not been revoked or ceased to have effect under the Criminal Records Act, or in respect of which there has been a final determination of an acquittal;

37. Paragraph 53(f) of the Act is replaced by the following:

(f) the effect of a record suspension under the Criminal Records Act on the status of permanent residents and foreign nationals and removal orders made against them; and

National Defence Act

38. Paragraph 202.14(2)(h) of the National Defence Act is replaced by the following:

(h) the National Parole Board or any provincial parole board may take the finding into account in considering an application by that person for parole or for a record suspension under the Criminal Records Act in respect of any other offence.

39. (1) The definition “réhabilitation” in section 227 of the French version of the Act is repealed.

(2) The definition “pardon” in section 227 of the English version of the Act is replaced by the following:

“pardon” means a pardon granted by any authority under law, other than a free pardon granted under Her Majesty’s royal prerogative of mercy or under section 748 of the Criminal Code, that has not been revoked or ceased to have effect.

(3) Section 227 of the Act is amended by adding the following in alphabetical order:

“record suspension” means a record suspension, as defined in subsection 2(1) of the Criminal Records Act, that has not been revoked or ceased to have effect.

(4) Section 227 of the French version of the Act is amended by adding the following in alphabetical order:

40. (1) Subsection 227.03(3) of the Act is replaced by the following:

(3) Despite subsections (1) and (2), a person may apply for a termination order once they receive a pardon or once a record suspension is ordered.

(2) Subsection 227.03(5) of the Act is replaced by the following:

(5) A person whose application is refused may re-apply if five years have elapsed since they made the previous application. They may also re-apply once they receive a pardon or once a record suspension is ordered. However, they may not re-apply under this subsection if an order is made with respect to them under section 227.01 of this Act or section 490.012 of the Criminal Code after the previous application was made.

41. Subsections 227.12(4) and (5) of the Act are replaced by the following:

(4) Despite subsections (2) and (3), a person may apply for a termination order once they receive a pardon or once a record suspension is ordered.

(5) A person whose application is refused may re-apply if five years have elapsed since they made the previous application. They may also re-apply once they receive a pardon or once a record suspension is ordered. However, they may not re-apply under this subsection if an order is made with respect to them under section 227.01 of this Act or section 490.012 of the Criminal Code after the previous application was made.

Youth Criminal Justice Act

42. Paragraph 82(1)(d) of the Youth Criminal Justice Act is replaced by the following:

(d) the National Parole Board or any provincial parole board may consider the finding of guilt in considering an application for conditional release or for a record suspension under the Criminal Records Act.

43. Subparagraph 119(1)(n)(iii) of the Act is replaced by the following:

(iii) considering an application for conditional release, or for a record suspension under the Criminal Records Act, made by the young person, whether as a young person or an adult,

44. Subparagraph 120(4)(c)(iii) of the Act is replaced by the following:

(iii) considering an application for conditional release, or for a record suspension under the Criminal Records Act, made by the young person after the young person becomes an adult.

45. Subsection 128(5) of the Act is replaced by the following:

(5) Despite subsections (1), (2) and (4), an entry that is contained in a system maintained by the Royal Canadian Mounted Police to match crime scene information and that relates to an offence committed or alleged to have been committed by a young person shall be dealt with in the same manner as information that relates to an offence committed by an adult for which a record suspension ordered under the Criminal Records Act is in effect.

TRANSITIONAL PROVISIONS

46. Subject to subsection 47(1), an application for a pardon under the Criminal Records Act in respect of an offence that is referred to in paragraph 4(a) of that Act, as it read immediately before the day on which this Act comes into force, and that is committed before that day shall be dealt with and disposed of in accordance with the Criminal Records Act, as amended by this Act, as though it were an application for a record suspension.

47. (1) An application for a pardon under the Criminal Records Act that is made before the day on which this Act comes into force shall be dealt with and disposed of in accordance with the Criminal Records Act, as it read when the Board received the application, if the application

(a) is made after the period referred to in paragraph 4(a) of that Act, as it read immediately before the day on which this Act comes into force, has elapsed; and

(b) is not finally disposed of on the day on which this Act comes into force.

(2) A reference to an application for a record suspension in the following provisions, as enacted by this Act, is deemed also to be a reference to an application for a pardon referred to in subsection (1):

(a) paragraph 672.35(c) and subsection 750(4) of the Criminal Code;

(b) paragraph 202.14(2)(h) of the National Defence Act; and

(c) paragraph 82(1)(d) and subparagraphs 119(1)(n)(iii) and 120(4)(c)(iii) of the Youth Criminal Justice Act.

48. (1) The Criminal Records Act, as it read immediately before the day on which this Act comes into force, applies to a pardon that was granted or issued before that day and that has not been revoked or ceased to have effect.

(2) A reference to a record suspension in the following provisions, as enacted by this Act, is deemed also to be a reference to a pardon that is granted or issued under the Criminal Records Act before the day on which this Act comes into force:

(a) the definition “conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered” in section 25 of the Canadian Human Rights Act;

(b) the definition “record suspension” in subsection 490.011(1) of the Criminal Code;

(c) subsection 10(8) of the DNA Identification Act;

(d) paragraphs 36(3)(b) and 53(f) of the Immigration and Refugee Protection Act;

(e) the definition “record suspension” in section 227 of the National Defence Act; and

(f) subsection 128(5) of the Youth Criminal Justice Act.