Record suspension Lawyers in Canada

Section 3(1) says that, 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. The section speaks of a conviction.

Section 4(1) sets a waiting period. A person is ineligible to apply until the period has elapsed after 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. The period is 10 years for an offence that is prosecuted by indictment, and 5 years for an offence that is punishable on summary conviction. Section 4 sets exceptions to these periods, and it treats offences in Schedule 3 separately in section 4(3.1).

Some convictions make a person ineligible. Under section 4(2), a person is ineligible if convicted of an offence referred to in Schedule 1, or of more than three offences that were each prosecuted by indictment, or are service offences subject to a maximum of life imprisonment, and for each of which the person was sentenced to imprisonment for two years or more.

Section 4(3) makes an exception for a person convicted of an offence in Schedule 1. The person may apply if the Board is satisfied of three things. The person was not in a position of trust or authority towards the victim, and the victim was not in a relationship of dependency with the person. The person did not use, threaten to use or attempt to use violence, intimidation or coercion in relation to the victim. And the person was less than five years older than the victim. Under section 4(4), the person has the onus of satisfying the Board that these conditions are met.

Section 2.1(1) says the Board has exclusive jurisdiction and absolute discretion to order, refuse to order or revoke a record suspension. Under section 2.2(1), an application is determined by a panel that consists of one member of the Board.

On receipt of an application, section 4.2(1) says the Board shall cause inquiries to be made to ascertain whether the applicant is eligible. If the applicant is eligible, the Board shall cause inquiries to be made to ascertain the applicant's conduct since the date of the conviction.

Under section 4.1(1), the Board may order the record suspension if it is satisfied that the applicant, during the applicable period, has been of good conduct and has not been convicted of an offence under an Act of Parliament. For an offence in the 10-year category, the Board must also be satisfied that ordering the record suspension at that time would provide a measurable benefit to the applicant, would sustain their rehabilitation in society as a law-abiding citizen and would not bring the administration of justice into disrepute. Under section 4.1(2), the applicant has the onus of satisfying the Board on the benefit and the rehabilitation.

If the Board proposes to refuse, section 4.2(2) says it shall notify the applicant in writing. The applicant is entitled to make, or have made on their behalf, any representations the applicant believes relevant, either in writing or, with the Board's authorization, orally at a hearing. Section 4.2(3) says the Board shall consider representations made within a reasonable time. Under section 4.2(4), an applicant may not re-apply until one year after the day on which the Board refuses to order a record suspension.

Section 2.3 describes the effect. A record suspension is evidence that the Board was satisfied the applicant was of good conduct and that the conviction should no longer reflect adversely on the applicant's character. Unless it is later revoked or ceases to have effect, it requires that the judicial conviction record be kept separate and apart from other criminal records. It also removes any disqualification or obligation the applicant is subject to by reason of the conviction under any Act of Parliament, other than those under the Criminal Code sections that section 2.3 lists.

Section 6(2) says a conviction record held by the Commissioner or a federal department or agency shall be kept separate and apart from other criminal records. The conviction record, and even its existence or the fact of the conviction, is not to be disclosed to any person without the prior approval of the Minister, subject to limited exceptions. Under section 6(3), the Minister shall first be satisfied that disclosure is desirable in the interests of the administration of justice or for a purpose related to the safety or security of Canada or an allied state.

Section 6.3 deals with certain offences listed in Schedule 2. The Commissioner makes a notation in the RCMP records retrieval system so that a police force or other authorized body can tell whether there is a record suspension for such a conviction. At the request of an organization responsible for the well-being of a child or vulnerable person, to which a person applies for a paid or volunteer position of trust or authority, a verification can be made if the applicant has consented in writing.

Section 7 lists three grounds on which the Board may revoke a record suspension. One is a later conviction for an offence in the 5-year category. Another is evidence that the person is no longer of good conduct. The third is evidence that the person knowingly made a false or deceptive statement in relation to the application, or knowingly concealed some material particular.

Section 7.2 says a record suspension ceases to have effect if the person is later convicted of an offence in the 10-year category, or of a Criminal Code offence that is punishable on conviction on indictment or on summary conviction, with limited exceptions. It also ceases to have effect if the Board is convinced by new information that the person was not eligible when it was ordered.

The Act lets the applicant make representations, or have them made on their behalf, when the Board proposes to refuse. A lawyer can explain how the sections above apply to a particular record.

The Law Society of Ontario keeps a public Lawyer and Paralegal Directory, where a lawyer's licence can be looked up. The Ontario lawyers on this site are listed by city. Nothing on this page ranks or recommends any of them.