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If you are applying for a Record Suspension in Canada, or planning to, you may be wondering how recent court challenges affect you.

Two court challenges were launched against the federal government and decided earlier this year. These cases challenged the government’s decision to make changes to pardon legislation retroactive, which meant that everyone, including people who had already served their sentence, had to wait a longer time period to apply for a Record Suspension. As well, some people were no longer eligible.

In both these cases, the judges decided that the new pardon rules were unconstitutional in that they were applied retroactively. They extended the sentence of the people affected after sentencing.

AllCleared has already submitted some cases to the Parole Board of Canada (PBC) under the old rules on a test basis. However, we recently received an official notice from the PBC on how they plan to determine cases on the basis of these new court decisions.

Court challenges questions and answers

Who can apply under the old rules?

Only residents of BC and Ontario can apply under the old rules and only if the conviction date was prior to 2012.

If I have a record that is no longer eligible (Section 1 offences against a minor or more than three offences each carrying a sentence of two years or more) can I apply under the old rules?

Yes, if you live in BC or Ontario and your conviction was prior to the law change in 2012, you can apply.

What does the ruling mean for BC or Ontario residents?

People with indictable offences saw the waiting period to apply for a pardon changed from five years to 10 years. Many of these people are still waiting for the 10 years to pass, so that they can apply for a pardon and seal their record. These people will now be able to apply five years after completion of their sentences. The 2012 changes also changed the waiting period for summary offences from three years to five. They can also apply sooner if they have not already become eligible. Also, criteria were toughened in 2010, to ensure that the granting of a pardon would not bring the “administration of justice in disrepute.” If your offence was prior to 2010, the Parole Board may not hold your record to this higher standard. However, they still have the discretion to deny an application if they believe the person is not reformed.

What if I have already applied for a Record Suspension?

If you live in BC or Ontario, the Parole Board will determine whether to assess your application under the old or new rules depending on the date of the conviction.

How do you apply for a pardon under the old rules?

The process is the same as applying for a Record Suspension under the new rules. If you want to do the process on your own, download the form and guide from the Parole Board’s website. Follow the instructions. Once you submit your application, the Parole Board will look at your last conviction date and determine whether to assess your application under the old or new rules. If you want to apply through AllCleared, we will advise you on your eligibility and get the process started for you.

Is the fee different for people under the old rules?

Unfortunately, the fee structure will not be rolled back. All applicants must pay $631 to file their application rather than the old fee of $150.

Will I receive a pardon or Record Suspension and what is the difference?

Pardons and Record Suspensions are the same, except in name. If your application is evaluated under the old rules, you will receive a pardon. Both a pardon and a Record Suspension have the same effect. Your record will be removed from the open database and placed in a database that cannot be accessed without permission of the Public Safety Minister. If you are convicted of a new offence your pardon will be revoked.

Pardons and Record Suspensions are federal programs. Why don’t these court challenges affect everyone in Canada?

The court decisions were released by superior courts in the provinces of BC and Ontario. These courts have no authority to change federal laws. A person would need to bring a case to the Supreme Court of Canada. If the people challenging the law had lost their cases, they may have eventually gone to Canada’s highest court; however, this did not happen and, as far as we know, there is no challenge planned federally at this time.

What are the other options?

The Liberal government has promised reform; however, it is not known what changes they will make. They could go back to the old system, or they could make changes only for minor offences. If you are not a resident of Ontario or BC, it looks like you may need to wait for the laws to change and even then they may not change the laws in your favour.

How can AllCleared help?

If you would like to know more about the changes to the pardon laws and whether you are affected, give us a call for a free consultation at 1-866-972-7366.