Discharges Under s. 730(1) of the Criminal Code Have Became More Important Than Ever
May 22, 2012 By Matthew Friedberg
The Safe Streets and Communities Act received Royal Assent on March 13, 2012 and amended the Criminal Records Act. A “pardon” has now been replaced by the term “record suspension”. The waiting period for all summary offences is five years from the end of the sentence and ten years from the end of an indictable sentence. The removal is not automatic – an application must be made and a significant fee must be paid. Under the old pardon system, 98% of pardons were granted; under the new record suspension system, more discretion to refuse an application has been created (denial statistics are not available yet). The difference between a discharge and a conviction is very significant now. With an absolute discharge the removal occurs automatically within one year, with a conditional discharge it occurs automatically within three years, but with a conviction it will be upwards of five years with no guarantee it will be granted. - See Parole Board of Canada website at: http://pbc-clcc.gc.ca/prdons/c23b-eng.shtml.
- See About.com Canada Online: Legislation to Eliminate Pardons for Serious Crimes: Toughening the Law on Pardons in Canada at: http://canadaonline.about.com/od/crime/a/pardonslegislation.htm.
The RCMP website at: http://www.rcmp-grc.gc.ca/cr-cj/pp-er-eng.htm#a3 states:
Policy On The Purging Of Criminal Records
Absolute Discharges- All absolute discharges received on or after July 24, 1992 , are removed from the criminal record after a period of one (1) year from the date of sentence.
- Absolute discharges received before July 24, 1992 , are removed upon written request from the individual.
Conditional Discharges- All conditional discharges received on or after July 24, 1992 , are removed from the criminal record three (3) years following the date of the sentence.
- Conditional discharges registered before July 24, 1992 , are removed upon written request from the individual.
The bottom line is that when a non-custodial sentencing is being argued, or when it is close, the lawyer must raise the above issue, that a discharge is removed automatically whereas a conviction is now a difficult, arduous and uncertain process. I believe judges will be inclined to favour a discharge more readily under this new “record suspension” regime.
