Understanding Record Suspensions for Sexual Assault Charges
You can get a Record Suspension (Pardon) for a Sexual Assault charge (Schedule 1 Offence), BUT it largely depends on when the offence was committed and other criteria. Having a criminal record in general can affect many areas of your life including but not limited to employment opportunities, furthering your education, volunteering and travel. A Record Suspension gives you the opportunity to start fresh and move forward with your life without the hindering effect of having a criminal record.
Throughout the years the legislation has changed in relation to Schedule 1 offences and it can be a bit confusing to determine if you are eligible to apply. The Parole Board of Canada takes into consideration when the offence in question was committed in order to determine your eligibility for a Record Suspension, and this is especially important for Schedule 1 offences.
Eligibility Criteria
Under Section 4(2) of the Criminal Records Act (CRA), a person is ineligible to apply for a record suspension if he or she has been convicted of an offence referred to in Schedule 1 (sexual offence involving a child) of the Act with certain exceptions.
Under Section 4(3) of the CRA, a person who has been convicted of an offence referred to in Schedule 1 may apply for a record suspension if the Parole Board of Canada is satisfied that the convicted 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;
- did not use, threaten to use or attempt to use violence, intimidation or coercion in relation to the victim; and,
- was less than five years older than the victim.
Wait Periods for Different Offences
If you committed a Schedule 1 offence:
- before June 29th 2010, you are eligible to apply for a Record Suspension 5 years from the date of your sentence completion;
- between June 29th 2010 - March 12th 2012, you are eligible to apply for a Record Suspension 10 years from the date of your sentence completion;
- after March 13th 2012, you are not eligible to apply for a Record Suspension.
The wait period begins after the completion of all elements of an individual’s sentence, including probation, incarceration, or fine payments. For this reason it is very important that all fines, including restitution and/or victim surcharges, are paid as quickly as possible in order to avoid additional delays in obtaining a Record Suspension.
Applying After March 13, 2012
If you committed the offence after March 13th 2012, and would like to apply for a Record Suspension you will have to complete a Schedule 1 Exception Form within your application. This form requires you to prove that within your Schedule 1 offence you did not use, threaten to use or attempt to use violence, intimidation or coercion in relation to the victim, you were 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 you and you were less than five years older than the victim. A proof (court document, police report and/or an affidavit) of the age of the applicant and the victim at the time of the event must be included.
If you can prove that you have met all of these requirements, your application will have a better chance of being successful. The Parole Board may accept your application, charge the Parole Board fee and continue with processing your application as normal. This does not mean they will grant the Record Suspension, but that they have accepted your application for review and will proceed to do their own investigation into your case.
Consequences of Ineligibility
If the Parole Board is not satisfied that you meet the criteria to apply for a Record Suspension based on the offence and your explanation within the Schedule 1 Exception Form, the application will be returned to you, and you will not be charged the Parole Board fee. By submitting a Record Suspension application for a Schedule 1 offence that was committed after March 13th 2012, there is always the risk your application will not be processed and returned to you. Therefore, it is important you meet all the criteria in the Schedule 1 Exception Form.
Example Scenarios
Example Scenarios:
Scenario #1
John Doe was charged with a Schedule 1 offence on April 25th, 2009. After an ongoing case he was sentenced and convicted on May 10th, 2012. His sentence included one year incarceration, 5 years probation and a fine of $1,000. He paid the fine in 2016 and finished his probation on May 10th, 2018. Due to the fact John Doe committed the offence prior to June 29th 2010, he will have to wait 5 years from the date his sentence is completed before he is eligible for a Record Suspension. Therefore, he is eligible to apply on May 10th, 2018.
Scenario #2
Jane Doe was charged with a Schedule 1 offence on December 2nd, 2011. After an ongoing case she was sentenced and convicted on July 4th, 2012. Her sentence included six months incarceration, 2 years probation and a fine of $500. She finished her probation on January 4th, 2015 but did not pay the fine until Feb 4th, 2018. Due to the fact Jane Doe committed the offence between June 29th 2010 and March 12th 2012, she will have to wait 10 years from the date her sentence is completed before she is eligible for a Record Suspension. As she did not pay her fine until 2018 she is eligible to apply on February 4th, 2028.
Scenario #3
John Doe was charged with a Schedule 1 offence on May 23rd, 2015. He was sentenced and convicted on August 15th, 2015. His sentence included one year incarceration and 2 years probation. He finished his probation on August 15th, 2018. Due to the fact John Doe committed the offence after March 13th 2012, he is not eligible to apply for a Record Suspension.
In the final scenario, if John Doe applies for a Record Suspension and fills out the Schedule One Exception form and can prove:
- He did not use, threaten to use or attempt to use violence, intimidation or coercion in relation to the victim;
- He 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;
- He was less than five years older than the victim. A proof (court document, police report and/or an affidavit) of the age of the applicant and the victim at the time of the event must be included.
The Parole Board may accept his application for consideration and continue to process the documents. If the Parole Board are not satisfied with the information given in the schedule 1 exception form, they will return the application to the sender, the processing fee will not be charged and they will not be considered for a Record Suspension.
Conclusion
For many Canadians, the burden of having a criminal record can be cumbersome. Many applications to get a pardon are denied if they are marred with mistakes such as expired documents, incomplete information, or incorrect documentation, which can happen with the simplest of convictions. At AllCleared, we guarantee that your application will be submitted with 100% accuracy.
If you would like to apply for a Record Suspension Application contact AllCleared today for a free consultation at 1 (866) 972-7366.
