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Bill C-7

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48-49 ELIZABETH II

CHAPTER 1

An Act to amend the Criminal Records Act and to amend another Act in consequence

[Assented to 30th March, 2000]

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

R.S., c. C-47; R.S., c. 1 (4th Supp.); 1992, c. 22; 1995, cc. 22, 39, 42; 1997, c. 17; 1998, c. 37

CRIMINAL RECORDS ACT

1992, c. 22, s. 4(1)

1. The portion of section 4 of the French version of the Criminal Records Act before paragraph (a) is replaced by the following:

Admissibilité à la réhabilitation

4. La période consécutive à l'expiration légale de la peine, notamment une peine d'emprisonnement, une période de probation ou le paiement d'une amende, pendant laquelle la demande de réhabilitation ne peut être examinée est de :

1992, c. 22, s. 4(1)

2. Subsections 4.2(2) and (3) of the Act are replaced by the following:

Opportunity to make representa-
tions

(2) If the Board proposes to refuse to grant a pardon, it shall notify the applicant of its proposal in writing 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, if the Board so authorizes, orally at a hearing held for that purpose.

Board to consider representa-
tions

(3) The Board shall, before making its decision, consider any representations made to it within a reasonable time after the notification is given to the applicant pursuant to subsection (2).

Waiting period

(4) An applicant whose application is refused may not apply for a pardon until the expiration of one year after the date of the refusal.

3. The heading before section 5 of the Act is replaced by the following:

EFFECT OF PARDON

1995, c. 39, par. 191(b)

4. Paragraph 5(b) of the Act is replaced by the following:

    (b) unless the pardon is subsequently revoked or ceases to have effect, requires the judicial record of the conviction to be kept separate and apart from other criminal records and removes any disqualification to which the person so convicted is, by reason of the conviction, subject by virtue of the provisions of any Act of Parliament, other than section 109, 110, 161 or 259 of the Criminal Code or subsection 147.1(1) of the National Defence Act, or of a regulation made under an Act of Parliament.

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

Order respecting custody of records

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

Records to be kept separate and not to be disclosed

(2) Any record of a conviction in respect of which a pardon has been granted or issued 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, and 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.

6. The Act is amended by adding the following after section 6.2:

Definitions

6.3 (1) The definitions in this subsection apply in this section.

``children''
« enfant »

``children'' means persons who are less than 18 years of age.

``vulnerable persons''
« personne vulnérable »

``vulnerable persons'' means persons who, because of their age, a disability or other circumstances, whether temporary or permanent,

      (a) are in a position of dependence on others; or

      (b) are otherwise at a greater risk than the general population of being harmed by persons in a position of authority or trust relative to them.

Notation of records

(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 a sexual offence listed in the schedule in respect of which a pardon has been granted or issued.

Verification

(3) At the request of any person or organization responsible for the well-being of one or more children or vulnerable persons 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 authority or trust relative to those children or vulnerable persons; and

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

Unauthorized use

(4) Except as authorized by subsection (3), no person shall verify whether a person is the subject of a notation made in accordance with subsection (2).

Request to forward record to Minister

(5) A police force or other authorized body that identifies an applicant for a position referred to in paragraph (3)(a) as being a person who is the subject of a notation made in accordance with subsection (2) shall request the Commissioner to provide the Minister with any record of a conviction of that applicant, and the Commissioner shall transmit any such record to the Minister.

Disclosure by Minister

(6) The Minister may disclose to the police force or other authorized body all or part of the information contained in a record transmitted by the Commissioner pursuant to subsection (5).

Disclosure to person or organization

(7) A police force or other authorized body shall disclose the information referred to in subsection (6) to the person or organization that requested a verification if the applicant for a position has consented in writing to the disclosure.

Use of information

(8) A person or organization that acquires information under this section in relation to an application for a position shall not use it or communicate it except in relation to the assessment of the application.

Amendment of schedule

(9) The Governor in Council may, by order, amend the schedule by adding or deleting a reference to a sexual offence.

Operation of section 6.3

6.4 Section 6.3 applies in respect of a record of a conviction for any offence in respect of which a pardon has been granted or issued regardless of the date of the conviction or the date of the pardon.

1992, c. 22, s. 7

7. Sections 7.1 and 7.2 of the Act are replaced by the following:

Opportunity to make representa-
tions

7.1 (1) If the Board proposes to revoke a pardon, it shall notify the person to whom the pardon was granted or issued of its proposal in writing 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, if the Board so authorizes, orally at a hearing held for that purpose.

Board to consider representa-
tions

(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 pursuant to subsection (1).

Cessation of effect of pardon

7.2 A pardon granted or issued to a person ceases to have effect if

    (a) the person is subsequently convicted of

      (i) an indictable offence under an Act of Parliament or a regulation made under an Act of Parliament,

      (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 punish able either on conviction on indictment or on summary conviction, or

      (iii) a service offence referred to in subparagraph 4(a)(ii); or

    (b) the Board is convinced by new information that the person was not eligible for a pardon at the time it was granted or issued.

1992, c. 22, s. 9

8. Section 9.1 of the Act is replaced by the following:

Regulations

9.1 The Governor in Council may make regulations

    (a) respecting the making of notations in respect of records of conviction, and the verification of such records, for the purposes of section 6.3;

    (b) prescribing the factors that the Minister must have regard to in considering whether to authorize a disclosure under this Act of a record of a conviction;

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

    (d) generally for carrying out the purposes and provisions of this Act.

8.1 The Act is amended by adding, after section 10, the schedule set out in the schedule to this Act.

CONSEQUENTIAL AMENDMENT

R.S., c. C-46

Criminal Code

1995, c. 22, s. 6

9. Subsection 750(4) of the Criminal Code is replaced by the following:

Application for restoration of privileges

(4) A person to whom subsection (3) applies may, at any time before a pardon is granted or issued to the person under section 4.1 of 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.

COMING INTO FORCE

Coming into force

10. This Act or any of its provisions comes into force on a day or days to be fixed by order of the Governor in Council.

SCHEDULE
(Section 8.1)

SCHEDULE
(Subsections 6.3(2) and (9))

1. Offences under the following provisions of the Criminal Code:

    (a) subsection 7(4.1) (sexual offence against a child by an act or omission outside Canada);

    (b) section 151 (sexual interference with a person under 14);

    (c) section 152 (invitation to a person under 14 to sexual touching);

    (d) section 153 (sexual exploitation of a person 14 or more but under 18);

    (e) section 153.1 (sexual exploitation of a person with a disability);

    (f) section 155 (incest);

    (g) section 159 (anal intercourse);

    (h) subsection 160(3) (bestiality in the presence of a person under 14 or inciting a person under 14 to commit bestiality);

    (i) paragraph 163(1)(a) (obscene materials);

    (j) paragraph 163(2)(a) (obscene materials);

    (k) section 163.1 (child pornography);

    (l) section 168 (mailing obscene matter);

    (m) section 170 (parent or guardian procuring sexual activity);

    (n) section 171 (householder permitting sexual activity);

    (o) section 172 (corrupting children);

    (p) section 173 (indecent acts);

    (q) subsection 212(2) (living on avails of prostitution of a person under 18);

    (r) subsection 212(2.1) (living on avails of prostitution of a person under 18);

    (s) subsection 212(4) (obtain, or attempt to obtain, sexual services of a person under 18);

    (t) section 271 (sexual assault);

    (u) subsection 272(1) and paragraph 272(2)(a) (sexual assault with firearm);

    (v) subsection 272(1) and paragraph 272(2)(b) (sexual assault other than with firearm);

    (w) section 273 (aggravated sexual assault);

    (x) paragraph 273.3(1)(a) (removal of child under 14 from Canada for purposes of listed offences);

    (y) paragraph 273.3(1)(b) (removal of child 14 or more but under 18 from Canada for purpose of listed offence);

    (z) paragraph 273.3(1)(c) (removal of child under 18 from Canada for purposes of listed offences);

    (z.1) section 280 (abduction of a person under 16);

    (z.2) section 281 (abduction of a person under 14);

    (z.3) paragraph 348(1)(a) with respect to breaking and entering a place with intent to commit in that place an indictable offence listed in this schedule;

    (z.4) paragraph 348(1)(b) with respect to breaking and entering a place and committing in that place an indictable offence listed in this schedule;

    (z.5) subsection 372(2) (indecent phone calls); and

    (z.6) section 463 with respect to an attempt to commit an offence listed in this section or with respect to being an accessory after the fact to the commission of an offence listed in this schedule.

2. Offences under the following provisions of the Criminal Code, R.S.C. 1970, c. C-34, as that Act read before January 1988:

    (a) subsection 146(1) (sexual intercourse with a female under 14);

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