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Bill S-258

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First Session, Forty-second Parliament,
64-65-66-67-68 Elizabeth II, 2015-2016-2017-2018-2019
SENATE OF CANADA
BILL S-258
An Act to amend the Criminal Records Act and to make consequential amendments to other Acts
FIRST READING, February 20, 2019
THE HONOURABLE SENATOR Pate
4211713


SUMMARY
This enactment amends the Criminal Records Act to provide for the expiry of criminal records in certains circumstances.
It also makes consequential amendments to other Acts.
Available on the Senate of Canada website at the following address:
www.sencanada.ca/en


TABLE OF PROVISIONS
An Act to amend the Criminal Records Act and to make consequential amendments to other Acts
Criminal Records Act
1
Amendments
Transitional Provisions
26
Record suspensions — general
27
Pending applications for record suspensions
28
Pending decisions to revoke a record suspension
Consequential Amendments
29
Criminal Code
35
Canadian Human Rights Act
38
National Defence Act
42
Income Tax Act
43
DNA Identification Act
44
Immigration and Refugee Protection Act
45
Youth Criminal Justice Act
49
Pardon Services Fees Order
Coordinating Amendment
50
Bill C-75


1st Session, 42nd Parliament,
64-65-66-67-68 Elizabeth II, 2015-2016-2017-2018-2019
SENATE OF CANADA
BILL S-258
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:
R.‍S.‍, c. C-47

Criminal Records Act

1The long title of the Criminal Records Act is replaced by the following:
An Act to provide for the expiry of the records of persons who have been convicted of offences
2(1)The definition record suspension in subsection 2(1) of the Act is repealed.
(2)Subsection 2(1) of the English version of the Act is amended by adding the following in alphabetical order:
advance record expiry means a measure ordered by the Board under section 4.001; (Version anglaise seulement )
(3)Subsection 2(1) of the French version of the Act is amended by adding the following in alphabetical order:
casier Casier judiciaire. (French version only)
3Section 2.1 of the Act is replaced by the following:
Jurisdiction of the Board
2.1The Board has exclusive jurisdiction and absolute discretion to make an order for a record expiry before or after the end of the period referred to in section 4, to refuse to make such an order or to revoke such an order, or to make the determination referred to in paragraph 7.2(b). The Board, in so doing, shall act in accordance with this Act.
4(1)Subsection 2.2(1) of the Act is replaced by the following:
Quorum
2.2(1)The following determinations or decisions shall be made by a panel that consists of one member of the Board:
(a)a determination on an application for an advance record expiry;
(b)a determination on an application for a record expiry following a review under section 4.1; and
(c)a decision whether to revoke an order for a record expiry under section 7 or a determination under paragraph 7.2(b).
(2)Subsection 2.2(2) of the English version of the Act is replaced by the following:
Panel of two or more persons
(2)The Chairperson of the Board may direct that the number of members of the Board required to constitute a panel shall be greater than one for the following purposes:
(a)to determine an application for an advance record expiry or for a record expiry following a review under section 4.1;
(b)to decide whether to revoke an order for a record expiry under section 7 or a determination under paragraph 7.2(b); or
(c)to determine any class of those applications or make any class of those decisions.
5Section 2.3 of the Act and the heading before it are replaced by the following:
Effect of Record Expiry
Effect of record expiry
2.3A record expiry
(a)is evidence of the fact that the conviction for an offence in respect of which a record expiry has occurred should no longer reflect adversely on the character of the person who was convicted of the offence; and
(b)unless the record expiry 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 that exists, by reason of the conviction, under any Act of Parliament.
6Subsection 3(1) of the Act and the heading before it are replaced by the following:
Record Expiry — General
Record expiry — general
3(1)Subject to sections 4.001, 4.1, 4.31 to 4.33 and 7.3, the expiry of the record in respect of an offence for which any of the following persons have been found guilty occurs at the end of the applicable period referred to in section 4:
(a)a person who has been convicted of an offence under an Act of Parliament; and
(b)a Canadian offender, within the meaning of the International Transfer of Offenders Act, who has been transferred to Canada under that Act.
7Section 4 of the Act is replaced by the following:
Waiting period
4(1)The expiry of the record of a person referred to in subsection 3(1) who was an adult at the time that he or she committed the offence referred to in that subsection occurs after the following period has elapsed after the expiration according to law of any sentence including a sentence of imprisonment, a period of probation and the payment of any fine imposed for the offence:
(a)five years, in the case of an offence that is prosecuted by indictment or is a service offence for which the person was punished by a fine of more than $5,000, 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)two 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).
No waiting period — children
(2)If the person referred to in subsection 3(1) was a child at the time that he or she committed the offence, the expiry of his or her record occurs after the expiration according to law of any sentence — including a sentence of imprisonment, a period of probation and the payment of any fine — imposed for the offence.
Advance record expiry — exigent circumstances
4.001(1)The Board may, on application by a person referred to in subsection 3(1), order that a record expiry in respect of the offence for which that person was found guilty occurs before the end of the applicable period referred to in section 4 if the Board is satisfied that
(a)meeting the period necessary to obtain a record expiry and having a record will prevent the person from enrolling in or pursuing an educational or vocational program, carrying out their responsabilities related to the health or care of any of their family members or obtaining or continuing employment;
(b)the person has been of good conduct since the expiration according to law of any sentence imposed for the offence, including a sentence of imprisonment, a period of probation and the payment of any fine; and
(c)in the case of an offence referred to in paragraph 4(1)‍(a), ordering the expiry of the record at that time would sustain his or her rehabilitation in society as a law-abiding citizen and would not bring the administration of justice into disrepute.
Onus
(2)The applicant has the onus of satisfying the Board that the conditions referred to in subsection (1) are met.
Factors
(3)In determining whether ordering an advance record expiry 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 Board’s determination; and
(d)any factor that is prescribed by regulation.
8Section 4.1 of the Act is replaced by the following:
Record expiry order after review — general rule
4.1(0.1)If the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police reveals that, during the applicable period referred to in section 4, the person was convicted of an offence or that, at the end of that period, there were outstanding charges against the person or the person was under an investigation for an offence, the expiry of that person’s record shall not occur until the date that the Board orders its expiry in accordance with this section.
Notification
(0.2)The Board shall, within 30 days after the day on which the period referred to in subsection 4(1) ends, notify the person referred to in subsection (0.1) that the expiry of his or her record has not occurred for the reasons set out in subsection (0.1) and that he or she may apply to the Board for an order for the expiry of the record.
Order
(1)The Board shall, on application, order the expiry of the applicant’s record if it is satisfied that the record expiry would sustain his or her rehabilitation in society as a law-abiding citizen and would not bring the administration of justice into disrepute.
Onus
(2)The applicant has the onus of satisfying the Board that the record expiry would sustain his or her rehabilitation in society as a law-abiding citizen.
Factors
(3)In determining whether an order under subsection (1) 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 Board’s determination; and
(d)any factor that is prescribed by regulation.
9(1)Subsections 4.2(1) and (2) of the Act are replaced by the following:
Inquiries
4.2(1)For the purpose of determining whether to order the expiry of a record under section 4.001 or 4.1, the Board may cause inquiries to be made with respect to any factors that it considers necessary to determine whether ordering the record expiry would bring the administration of justice into disrepute.
Entitlement to make representations
(2)If the Board proposes to refuse to order a record expiry under section 4.001 or 4.1, 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 are 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 repealed.
10Sections 4.3 and 4.4 of the Act are replaced by the following:
Expiration of sentence
4.3For the purposes of sections 4 and 4.001, a reference to the expiration according to law of a sentence of imprisonment imposed for an offence shall be read as a reference to the day on which the sentence expires, without taking into account
(a)any period during which the person on whom that sentence was imposed could be entitled to statutory release or any period following a statutory release date; or
(b)any remission that stands to the credit of that person in respect of the offence.
Reapplication for advance record expiry order
4.31A person whose application for an advance record expiry is refused may reapply if one year has elapsed since they made the previous application.
Reapplication for a record expiry under section 4.‍1
4.32A person whose application for a record expiry under section 4.1 is refused may reapply if one year has elapsed since they made the previous application.
Record expiry — other circumstances
4.33Despite section 4.1, a record expiry that did not occur at the end of the applicable period referred to in section 4 for any of the reasons set out in subsection 4.1(0.1) occurs,
(a)in the case of a record expiry that did not occur because the records retrieval system referred to in subsection 4.1(0.1) revealed that the person was convicted of another offence during that period, immediately after a record expiry has occurred in respect of that other offence;
(b)in the case of a record expiry that did not occur because the records retrieval system referred to in subsection 4.1(0.1) revealed that, at the end of the applicable period referred to in section 4, there were outstanding charges against that person or that person was under investigation, immediately after those charges are dropped, the person is acquitted of those charges or the investigation is concluded without charges being brought against the person, as the case may be; or
(c)in the case of a record to which more than one of the reasons set out in subsection 4.1(0.1) applied, on the later of the events that trigger an expiry referred to in paragraphs (a) and (b).
Functions of Executive Committee
4.4The Executive Committee shall, after any consultation with Board members that it considers appropriate, adopt operational policies relating to applications for an advance record expiry and for a record expiry following a review under section 4.1, including related inquiries and proceedings.
11Subsections 6(1) and (2) of the Act are replaced by the following:
Records to be delivered to Commissioner
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 expiry has occurred, require that person to deliver that record into the Commissioner’s custody.
Records to be kept separate and not to be disclosed
(2)A record of a conviction in respect of which an expiry has occurred and 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.
12Subsection 6.1(2) of the Act is replaced by the following:
Record expiry
(1.1)No record in respect of a conviction for an offence in respect of which an expiry has occurred and that is in the custody of the Commissioner or of any department or agency of the Government of Canada shall be disclosed to any person, nor shall the existence of the record be disclosed to any person, without the prior approval of the Minister.
Decriminalized offence
(1.2)No record of a conviction for an offence that no longer constitutes an offence after a person was convicted of that offence and that is in the custody of the Commissioner or of any department or agency of the Government of Canada shall be disclosed to any person, nor shall the existence of the record be disclosed to any person, without the prior approval of the Minister.
Purging CPIC — discharges and offences referred to in subsection (1.‍2)
(2)The Commissioner shall remove all references to a discharge under section 730 of the Criminal Code or to a record of a conviction for an offence referred to in subsection (1.2) from the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police
(a)on the expiration of the relevant period referred to in subsection (1) in the case of the record of a discharge; or
(b)without delay after the offence no longer constitutes an offence.
Purging CPIC — certain offences in respect of which a record expired
(3)The Commissioner shall remove from the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police all references to an offence other than one that is referred to in Schedule 1 or 2 if a record expiry has occurred in respect of that offence. The Commissioner shall remove those references without delay after the record expiry has occurred.
Definition
(4)For the purposes of subsections (1.2) and (2), offence that no longer constitutes an offence means an offence in respect of an activity that no longer constitutes an offence under an Act of Parliament or an offence provided for in a provision that has been found unconstitutional by a court of appeal when that court’s decision is final or has been confirmed by a higher court.
13The portion of section 6.2 of the Act before paragraph (a) is replaced by the following:
Disclosure to police forces
6.2Despite sections 6 and 6.1, the name, date of birth and last known address of a person in respect of which a record expiry has occurred 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
14(1)Subsection 6.3(2) of the Act is replaced by the following:
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 an offence listed in Schedule 1 or 2 in respect of which a record expiry has occurred.
(2)Subsection 6.3(9) is repealed.
15Section 6.4 of the Act is replaced by the following:
Operation of section 6.‍3
6.4Section 6.3 applies in respect of a record of a conviction for any offence in respect of which a record has expired, regardless of the date of the conviction.
16Section 7 of the Act is replaced by the following:
Revocation of record expiry
7The Board may revoke an order for a record expiry under section 4.001 or 4.1 if
(a)the record is in relation to an offence that is referred to in Schedule 1 or 2; and
(b)the Board is satisfied by evidence that the person to whom the record expiry relates knowingly made a false or deceptive statement in relation to the application for the record expiry or knowingly concealed some material particular in relation to that application.
17Subsection 7.1(1) of the Act is replaced by the following:
Entitlement to make representations
7.1(1)If the Board proposes to revoke an order for a record expiry, 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.
18Section 7.2 of the Act is replaced by the following:
Cessation of effect of record expiry
7.2A record expiry ceases to have effect if
(a)the record is in relation to an offence that is referred to in Schedule 1 or 2; and
(b)the Board is convinced by new information that the person to whom the cessation of the record expiry relates
(i)should have received a notification under subsection 4.1(0.2), or
(ii)was not eligible for a record expiry under section 4.001 or 4.1 when it was ordered.
New application for record expiry after revocation or cessation of record expiry
7.3A person to whom section 7 or 7.2 applies may apply for a record expiry under section 4.001 or 4.1, as the case may be.
19The portion of section 8 of the Act before paragraph (a) is replaced by the following:
Applications for employment
8No 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 expiry has occurred:
20Section 9.01 of the Act is replaced by the following:
Disclosure of decisions
9.01The Board may disclose decisions that order or refuse to order a record expiry under section 4.001 or 4.1. However, it may not disclose information that could reasonably be expected to identify an individual unless the individual authorizes the disclosure in writing.
21Section 9.1 of the Act is amended by adding the following after paragraph (c):
(c.‍01)specifying the persons who are the person’s family members for the purposes of paragraph 4.001(1)‍(a);
(c.‍02)prescribing the manner in which a person can make an application for the purposes of subsections 4.001(1) and 4.1(0.2);
(c.‍03)prescribing factors for the purposes of paragraphs 4.001(3)‍(d) and 4.1(3)‍(d)
22The Act is amended by adding the following after section 9.1:
Amendment of Schedules 1 and 2
9.2The Governor in Council may, by order, amend Schedules 1 and 2 by adding or deleting a reference to an offence.
Applications free of fee or charge
9.3No fee or charge may be imposed on any person referred to in subsection 3(1) for an application made under sections 4.001 or 4.1.
23Paragraphs 11(1)‍(a) to (c) of the Act are replaced by the following:
(a)the number of applications for an advance record expiry made in respect of the offences referred to in each of paragraphs 4(1)‍(a) and (b);
(a.‍1)the number of applications for a record expiry following a review under section 4.1 made in respect of the offences referred to in each of paragraphs 4(1)‍(a) and (b);
(b)the number of advance record expiries or record expiries following a review under section 4.1 that the Board ordered in respect of the offences referred to in each of paragraphs 4(1)‍(a) and (b);
(c)the number of advance record expiries or record expiries following a review under section 4.1 ordered, categorized by the offence to which they relate and, if applicable, the province of residence of the applicant; and
24Schedule 1 to the Act is amended by replacing the references after the heading “SCHEDULE 1” with the following:
(Subsections 6.‍1(3) and 6.‍3(2) and sections 7 and 7.‍2)
25Schedule 2 to the Act is amended by replacing the references after the heading “SCHEDULE 2” with the following:
(Subsections 6.‍1(3) and 6.‍3(2) and sections 7 and 7.‍2)

Transitional Provisions

Record suspensions — general
26Subject to section 27, a record expiry is deemed to have occurred in accordance with the Criminal Records Act, as amended by this Act, in respect of all criminal records for which a suspension was granted under the Criminal Records Act, as it read immediately before the day on which this Act comes into force.
Pending applications for record suspensions
27Any application for a record suspension that was made under the Criminal Records Act before the day on which this Act comes into force and that was not finally disposed of on that day shall be dealt with and disposed of in accordance with the following provisions:
(a)section 4 of the Criminal Records Act, as enacted by this Act, if
(i)the applicant was not convicted of any subsequent offence after the day on which he or she was convicted of the offence for which he or she sought a record suspension, and
(ii)on the day on which this Act comes into force, the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police does not reveal that there are outstanding charges against the applicant or that he or she is under investigation; or
(b)sections 4.1 to 4.32 of the Criminal Records Act, as enacted by this Act, if
(i)the applicant was convicted of any subsequent offence after he or she was convicted of the offence for which he or she sought a record suspension, or
(ii)on the day on which this Act comes into force, the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police reveals that there are outstanding charges against the applicant or that he or she is under investigation for an offence.
Pending decisions to revoke a record suspension
28Sections 7 and 7.1 of the Criminal Records Act, as enacted by this Act, apply to a person’s record if, before the coming into force of this Act,
(a)the Board notified that person of its proposal to revoke his or her record suspension under section 7.1 of the Criminal Records Act, as it then read; and
(b)the Board has not made a decision with respect to its proposal to revoke that record suspension.

Consequential Amendments

R.‍S.‍, c. C-46

Criminal Code

29(1)The definition record suspension in subsection 490.011(1) of the Criminal Code is repealed.
(2)Subsection 490.011(1) of the Act is amended by adding the following in alphabetical order:
record expiry means a record expiry under the Criminal Records Act that has not been revoked or ceased to have effect. (expiration du casier)
30(1)Subsection 490.015(3) of the Act is replaced by the following:
Pardon or record expiry
(3)Despite subsections (1) and (2), a person may apply for a termination order once they receive a pardon or once a record expiry has occurred.
(2)Subsection 490.015(5) of the Act is replaced by the following:
Reapplication
(5)A person whose application is refused may reapply if five years have elapsed since they made the previous application. They may also reapply once they receive a pardon or once a record expiry has occurred. However, they may not reapply 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.
31Paragraph 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 a record expiry, to a person who collects information, as defined in subsection 3(1) of the Sex Offender Information Registration Act, at a registration centre.
32Subsections 490.026(4) and (5) of the Act are replaced by the following:
Pardon or record expiry
(4)Despite subsections (2) and (3), a person may apply for a termination order once they receive a pardon or once a record expiry has occurred.
Reapplication
(5)A person whose application is refused may apply again if five years have elapsed since they made the previous application. They may also apply again once they receive a pardon or once a record expiry has occurred. However, they may not apply again if, after the previous application was made, they become subject to an obligation under section 490.02901, under section 227.06 of the National Defence Act or under section 36.1 of the International Transfer of Offenders Act or to an order under section 490.012 or under section 227.01 of the National Defence Act.
33Paragraph 672.35(c) of the Act is replaced by the following:
(c)the Parole Board of Canada or any provincial parole board may take the verdict into account in considering an application by the accused for parole or any application under the Criminal Records Act in respect of any other offence.
34Subsection 750(4) of the Act is replaced by the following:
Application for restoration of privileges
(4)A person to whom subsection (3) applies may, at any time before a record expiry occurs 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.
R.‍S.‍, c. H-6

Canadian Human Rights Act

35Section 2 of the English version of the Canadian Human Rights Act is replaced by the following:
Purpose
2The 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, gender identity or expression, marital status, family status, genetic characteristics, disability or conviction for an offence for which a pardon has been granted or in respect of which a record expiry has occurred.
36Subsection 3(1) of the English version of the Act is replaced by the following:
Prohibited grounds of discrimination
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, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record expiry has occurred.
37The 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 Act is replaced by the following:
conviction for an offence for which a pardon has been granted or in respect of which a record expiry has occurred means a conviction of an individual for an offence in respect of which
(a)a pardon has been granted under Her Majesty’s royal prerogative of mercy or under section 748 of the Criminal Code; or
(b)a record expiry has occurred under the Criminal Records Act, that has not been revoked or ceased to have effect; (état de personne graciée)
R.‍S.‍, c. N-5

National Defence Act

38Paragraph 202.14(2)‍(h) of the National Defence Act is replaced by the following:
(h)the Parole Board of Canada or any provincial parole board may take the finding into account in considering an application by that person for parole or any application under the Criminal Records Act in respect of any other offence.
39(1)The definition record suspension in section 227 of the Act is repealed.
(2)Section 227 of the Act is amended by adding the following in alphabetical order:
record expiry means a record expiry under the Criminal Records Act that has not been revoked or ceased to have effect. (expiration du casier)
40(1)Subsection 227.03(3) of the Act is replaced by the following:
Pardon or record expiry
(3)Despite subsections (1) and (2), a person may apply for a termination order once they receive a pardon or once a record expiry has occurred.
(2)Subsection 227.03(5) of the Act is replaced by the following:
Reapplication
(5)A person whose application is refused may reapply if five years have elapsed since they made the previous application. They may also reapply once they receive a pardon or once a record expiry has occurred. However, they may not reapply 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.
41Subsections 227.12(4) and (5) of the Act are replaced by the following:
Pardon or record expiry
(4)Despite subsections (2) and (3), a person may apply for a termination order once they receive a pardon or once a record expiry has occurred.
Reapplication
(5)A person whose application is refused may apply again if five years have elapsed since they made the previous application. They may also apply again once they receive a pardon or once a record expiry has occurred. However, they may not apply again if, after the previous application was made, they become subject to an obligation under section 490.019 or 490.02901 of the Criminal Code or under section 36.1 of the International Transfer of Offenders Act or to an order under section 227.01 of this Act or section 490.012 of the Criminal Code.
R.‍S.‍, c. 1 (5th Supp.‍)

Income Tax Act

42(1)Subparagraph (a)‍(ii) of the definition ineligible individual in subsection 149.1(1) of the Income Tax Act is replaced by the following:
(ii)a record expiry has occurred under the Criminal Records Act and the record expiry has not been revoked or ceased to have effect,
(2)Subsection 149.1(1.01) of the Act is replaced by the following:
Deeming rule — Safe Streets and Communities Act
(1.01)In this section, a reference to a record expiry is deemed also to be a reference to a pardon that is granted or issued under the Criminal Records Act.
1998, c. 37

DNA Identification Act

43Subsection 10(8) of the DNA Identification Act is replaced by the following:
Record expiry in effect
(8)Despite anything in this section, stored bodily substances of a person in respect of whom a record expiry under 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.
2001, c. 27

Immigration and Refugee Protection Act

44(1)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 expiry has occurred under the Criminal Records Act and has not been revoked or ceased to have effect or in respect of which there has been a final determination of an acquittal;
(2)Paragraph 53(f) of the Act is replaced by the following:
(f)the effect of a record expiry under the Criminal Records Act on the status of permanent residents and foreign nationals and removal orders made against them; and
2002, c.‍1

Youth Criminal Justice Act

45Paragraph 82(1)‍(d) of the Youth Criminal Justice Act is replaced by the following:
(d)the Parole Board of Canada or any provincial parole board may consider the finding of guilt in considering an application for conditional release or any application under the Criminal Records Act.
46Subparagraph 119(1)‍(n)‍(iii) of the Act is replaced by the following:
(iii)considering an application for conditional release, or any application under the Criminal Records Act, made by the young person, whether as a young person or an adult,
47Subparagraph 120(4)‍(c)‍(iii) of the Act is replaced by the following:
(iii)considering an application for conditional release, or any application under the Criminal Records Act, made by the young person after the young person becomes an adult.
48Subsection 128(5) of the Act is replaced by the following:
Exception
(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 expiry has occurred under the Criminal Records Act has not been revoked or ceased to have effect.
SOR/95-210

Pardon Services Fees Order

49The Pardon Services Fees Order is repealed.

Coordinating Amendment

Bill C-75
50If Bill C-75, introduced in the 1st session of the 42nd Parliament and entitled An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, receives royal assent, then on the first day on which both section 271 of that Act and this Act are in force, paragraph 638(1)‍(c) of the Criminal Code is replaced by the following:
(c)a juror has been convicted of an offence for which they were sentenced to a term of imprisonment of two years or more and for which no pardon or record expiry is in effect;
Published under authority of the Senate of Canada



explanatory notes

Criminal Records Act
Clause 1:Existing text of the long title:
An Act to provide for the suspension of the records of persons who have been convicted of offences and have subsequently rehabilitated themselves
Clause 2: (1)Existing text of the definition:
record suspension means a measure ordered by the Board under section 4.1; (suspension du casier)
(2) and (3):New.
Clause 3:Existing text of section 2.1:
2.1The Board has exclusive jurisdiction and absolute discretion to order, refuse to order or revoke a record suspension.
Clause 4: (1) and (2)Existing text of subsections 2.2 (1) and (2):
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)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.
Clause 5:Existing text of the heading and section 2.3:
Effect of Record Suspension
2.3A 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, 320.24, 490.012, 490.019 or 490.02901 of the Criminal Code, section 259 of the Criminal Code, as it read immediately before the day on which section 14 of An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts comes into force, subsection 147.1(1) or section 227.01 or 227.06 of the National Defence Act or section 36.1 of the International Transfer of Offenders Act.
Clause 6:Existing text of the heading and subsection 3(1):
Application for Record Suspension
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.
Clause 7:Existing text of section 4:
4(1)A person is ineligible to apply for a record suspension until the following period has elapsed after the expiration 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 each of 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 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.
(5)The Governor in Council may, by order, amend Schedule 1 by adding or deleting a reference to an offence.
Clause 8:Existing text of section 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 rehabilitation 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.
Clause 9: (1)Existing text of subsections 4.2(1) and (2):
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)Existing text of subsection 4.2(4):
(4)An applicant may not re-apply for a record suspension until the expiration of one year after the day on which the Board refuses to order a record suspension.
Clause 10:Existing text of sections 4.3 and 4.4:
4.3For the purposes of section 4, a reference to the expiration according to law of a sentence of imprisonment imposed for an offence shall be read as a reference to the day on which the sentence expires, without taking into account
(a)any period during which the offender could be entitled to statutory release or any period following a statutory release date; or
(b)any remission that stands to the credit of the offender in respect of the offence.
4.4The 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.
Clause 11:Existing text of subsections 6(1) and (2):
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.
Clause 12:Existing text of subsection 6.1(2):
(2)The Commissioner shall remove all references to a discharge under section 730 of the Criminal Code from the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police on the expiration of the relevant period referred to in subsection (1).
Clause 13:Relevant portion of section 6.2:
6.2Despite 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
Clause 14: (1)Existing text of subsection 6.3(2):
(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.
(2)Existing text of subsection 6.3(9):
(9)The Governor in Council may, by order, amend Schedule 2 by adding or deleting a reference to an offence.
Clause 15:Existing text of section 6.4:
6.4Section 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.
Clause 16:Existing text of section 7:
7A 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), other than an offence referred to in subparagraph 7.2(a)‍(ii);
(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.
Clause 17:Existing text of subsection 7.1(1):
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.
Clause 18:Existing text of section 7.2:
7.2A 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)any other 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.
Clause 19:Relevant portion of section 8:
8No 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:
Clause 20:Existing text of section 9.01:
9.01The 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.
Clause 21:Relevant portions of section 9.1:
9.1The Governor in Council may make regulations
. . .
(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);
(c.‍1)prescribing factors for the purposes of paragraph 4.1(3)‍(d);
. . .
Clause 22:New.
Clause 23: Existing text of relevant portions of subsection 11(1):
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
Clause 24:Existing text of the references in Schedule 1:
(Subsections 4(2), (3) and (5))
Clause 25:Existing text of the references in Schedule 2:
(Subsections 6.3(2) and (9))
Criminal Code
Clause 29:Existing text of the definition:
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. (suspension du casier)
Clause 30: Existing text of subsections 490.015(3) and (5):
(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.
. . .
(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.
Clause 31: Existing text of relevant portions of subsection 490.022(2):
(2)The obligation ends on the earliest of
. . .
(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, as defined in subsection 3(1) of the Sex Offender Information Registration Act, at a registration centre.
Clause 32: Existing text of subsections 490.026(4) and (5):
(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 apply again if five years have elapsed since they made the previous application. They may also apply again once they receive a pardon or once a record suspension is ordered. However, they may not apply again if, after the previous application was made, they become subject to an obligation under section 490.02901, under section 227.06 of the or under section 36.1 of the International Transfer of Offenders AcNational Defence Actt or to an order under section 490.012 or under section 227.01 of the National Defence Act.
Clause 33: Existing text of relevant portions of section 672.35:
672.35Where a verdict of not criminally responsible on account of mental disorder is rendered, the accused shall not be found guilty or convicted of the offence, but
. . .
(c)the Parole Board of Canada 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.
Clause 34:Existing text of subsection 750(4):
(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.
Canadian Human Rights Act
Clause 35:Existing text of section 2:
2The 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, gender identity or expression, marital status, family status, genetic characteristics, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
Clause 36:Existing text of subsection 3(1):
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, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
Clause 37:Existing text of the definition:
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 under Her Majesty’s royal prerogative of mercy or under section 748 of the Criminal Code or a record suspension has been ordered under the Criminal Records Act, that has not been revoked or ceased to have effect; (état de personne graciée)
National Defence Act
Clause 38: Existing text of relevant portions of subsection 202.14(2):
(2)Where a finding of not responsible on account of mental disorder is made, the accused person shall not be found guilty or convicted of the offence, but
. . .
(h)the Parole Board of Canada 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.
Clause 39:Existing text of the definition:
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. (suspension du casier)
Clause 40:Existing text of subsections 227.03(3) and (5):
(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.
. . .
(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.
Clause 41:Existing text of subsections 227.12(4) and (5):
(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 apply again if five years have elapsed since they made the previous application. They may also apply again once they receive a pardon or once a record suspension is ordered. However, they may not apply again if, after the previous application was made, they become subject to an obligation under section 490.019 or 490.02901 of the Criminal Code or under section 36.1 of the International Transfer of Offenders Act or to an order under section 227.01 of this Act or section 490.012 of the Criminal Code.
Income Tax Act
Clause 42: (1)Relevant portions of the definition:
ineligible individual, at any time, means an individual who has been
(a)convicted of a criminal offence unless it is a conviction for which
. . .
(ii)a record suspension has been ordered under the Criminal Records Act and the record suspension has not been revoked or ceased to have effect,
(2)Existing text of subsection 149.1(1.01):
(1.01)In this section, a reference to a record suspension is deemed also to be a reference to a pardon that is granted or issued under the Criminal Records Act.
DNA Identification Act
Clause 43:Existing text of subsection 10(8):
(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
Clause 44: (1) Existing text of relevant portions of subsection 36(3):
(3)The following provisions govern subsections (1) and (2):
. . .
(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;
(2)Existing text of relevant portions of section 53:
53The regulations may provide for any matter relating to the application of this Division, and may include provisions respecting
. . .
(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
Youth Criminal Justice Act
Clause 45:Relevant portions of subsection 82(1):
82(1)Subject to section 12 (examination as to previous convictions) of the Canada Evidence Act, if a young person is found guilty of an offence, and a youth justice court directs under paragraph 42(2)‍(b) that the young person be discharged absolutely, or the youth sentence, or any disposition made under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, has ceased to have effect, other than an order under section 51 (mandatory prohibition order) of this Act or section 20.1 (mandatory prohibition order) of the Young Offenders Act, the young person is deemed not to have been found guilty or convicted of the offence except that
. . .
(d)the Parole Board of Canada 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.
Clause 46:Relevant portions of subsection 119(1):
119(1)Subject to subsections (4) to (6), from the date that a record is created until the end of the applicable period set out in subsection (2), the following persons, on request, shall be given access to a record kept under section 114, and may be given access to a record kept under sections 115 and 116:
. . .
(n)a member of a department or agency of a government in Canada, or of an organization that is an agent of, or under contract with, the department or agency, who is
. . .
(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,
Clause 47:Relevant portions of subsection 120(4):
(4)If a young person was found guilty of an offence set out in the schedule is, during the period of access to a record under subsection (3), found guilty of an additional offence set out in the schedule, committed when he or she was a young person, access to the record may be given to the following additional persons:
. . .
(c)a member of a department or agency of a government in Canada, or of an organization that is an agent of, or is under contract with, the department or agency, who is
. . .
(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.
Clause 48:Existing text of subsection 128(5)
(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.

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