Parole, Record Suspension, Expungement, and Clemency – “What Are Concepts You May Not Fully Understand the Difference Between?”

Approximately 3.8 million Canadians, or 10% of the population, have a criminal record. Not surprisingly, most of these Canadians are not in correctional facilities and are living within the community. Having a criminal record can create barriers to meaningful employment, education, and housing for them. This is why, in certain cases, there are programs to facilitate the setting aside and apart of criminal records so that they do not show up in criminal record checks. The ultimate goal of the Canadian justice system is to balance public safety and effective offender reintegration.

Navigating these programs is not always easy and legal jargon can be confusing at the best of times. You may be traversing the criminal justice system, interested in true crime, or simply trying to better understand Canadian law when you encounter these terms. So, what do they really mean?

First, some quick context on different types of offences in Canada. Summary offences are “less serious” offences, whereas indictable are considered to be a greater threat to public safety. If you are charged summarily, you may serve a sentence of 2 years less a day. For the purposes of identifying the terms below, I will focus solely on their relevance to indictable offenses. So, lets start talking Canadian criminal justice.

Parole:

When you hear that someone is out on parole, this can be a bit misleading. Yes, the individual is no longer incarcerated, but their release starts out on a conditional basis. Prior to being released, all cases are reviewed by the Parole Board of Canada (PBC) where they decide whether to grant or deny parole. Factors such as offender rehabilitation and maintaining public safety are considered.

If parole is granted, an offender is not yet completely free. They are released from holding, but they must still follow conditions of release as well as report to a Parole Officer. Conditions can be requirements such as not owning or possessing weapons, obeying the law, or not contacting the victim’s family. Conditions vary depending on the severity of the case.

If they do not meet their conditions, their parole may be revoked by a PBC Member and they will be returned to a correctional institute.

Record Suspension/ Pardon:

This can be confusing because most individuals know of the concept of a record suspension under the term “pardon”; they are the same thing. The name changed from pardon to record suspension in Canada in 2010. A record suspension allows people who were convicted of a criminal offence, but have completed their sentence and demonstrated that they are law-abiding citizens for a prescribed number of years, to have their criminal record kept separate and apart from other criminal records. In order to be eligible for a record suspension, ALL sentences must have been completed. So if you have more than one charge, you must wait until the time period runs out on both charges and cannot have just one pardoned.

The record is not destroyed, but set aside and apart, which means that it is no longer accessible on the Canadian Police Information Centre (CPIC) database. Because the record is not destroyed, it can still be accessed and disclosed under very specific circumstances under the discretion of the Minister of Public Safety. This may be in cases such as vulnerable sector checks for those working with vulnerable populations, or for police pre-employment checks. Not destroying the record ensures that safeguards remain in place should the record need to be reinstated or disclosed.

Record suspensions are not indefinite. They MAY be revoked if the individual commits another summary offence, or the PBC determines they are no longer of good conduct or they provided false information on their application.

A record suspension IMMEDIATELY ceases to have effect if the individual convicts a new hybrid or indictable offence or if the PBC determines they provided false information on their application.

Expungement

Expungement is often confused for a record suspension, but they are fundamentally different. Expunging a criminal record only occurs if the crime the individual was charged with is historically unjust, meaning that it never should have actually been a crime and had the conviction occurred today, it would likely be inconsistent with the?Canadian Charter of Rights and Freedoms. Examples of offenses that can be expunged in Canada include anal intercourse (between two consenting adults) and procuring one’s own miscarriage (abortion). Qualifying these acts for expungement is an acknowledgement that they never should have been a crime in the first place, and that they were often used as a way of discriminating against a marginalized group. Contrary to record suspensions, an offense can be expunged from an individual’s record even if they have other offenses that are not eligible. Additionally, expunged records are permanently destroyed.

Cannabis records are sometimes mistakenly identified as being eligible for expungement. This is not true because, although illegal in the past, there is no acknowledgement that it never should have been a crime. The charge was not inherently discriminatory in the way that anal intercourse (buggery) charges largely targeted homosexual men. Instead, there is an expedited record suspension process for individuals with only cannabis charges on their record.

Clemency (Royal Prerogative of Mercy)

Clemency occurs so rarely that you will probably never need to know what it means. But, here we are, so I will give it my best shot to explain it. To put it not so simply, clemency is only granted in exceptional circumstances involving federal offences that NO OTHER remedy exists for in law to reduce the severe negative effects of criminal sanctions. The Royal Prerogative of Mercy is intended only for rare cases in which consideration of justice, humanity and compassion override the normal administration of justice. To meet this criteria, there should be evidence of substantial injustice, or undue hardship.

The Governor General or the Governor in Council grants clemency upon the recommendation of the Minister of Public Safety. It may also be referred to as the “royal prerogative of mercy” because the monarch’s (King/ Queen of the United Kingdom) prerogative is exercised through the Governor General.

In the fiscal years between 2016-2017 and 2020-2021, only five clemency requests were granted within Canada. It occurs so infrequently that I was unable to find a recent case law example. However, you can sometimes see in the news that Canada will request clemency for a citizen that has been charged and arrested in a foreign country. An example is Chrystia Freeland asking for clemency from China on behalf of a Canadian facing the death penalty for allegedly smuggling 222 kilograms of methamphetamines. As Canada does not have the death penalty, this would qualify as extraordinary circumstances and undue hardship.

Hopefully this information helps and you have a better understanding of Canadian criminal records. Even more so, hopefully you will never need to use it. However, if you do find yourself with a criminal record know that you are not alone and that a record does not necessarily have to impact your life forever.