Learn How Criminal Pleadings and Elections can Affect Your Record Suspension Eligibility
This information is for you if:
- you are facing criminal charges in Canada; or
- you are representing someone who is facing criminal charges (ie. lawyer, paralegal for summary offenses, or duty counsel).
- you want to understand how pleadings (ie. guilty or not guilty), elections (ie. summary or indictable) and sentences (ie. 1 year probation vs 3 months probation) will impact your ability to travel to the United States and Record Suspension eligibility date.
How Criminal Pleadings Affect Criminal Record Suspension Eligibility
You can apply to have your record sealed in Canada (for convictions within Canada) with an Application for Record Suspension after you have completed the required waiting periods. The waiting period you must wait before qualifying for Record Suspension Eligibility does not begin until AFTER you complete your entire sentence (even if released from it early). Here are some tips to negotiate a sentence that you can complete as soon as possible:
Negotiate a sentence that can be completed as soon as possible. Your Record Suspension eligibility starts as soon as all conditions and restitution are complete.
Probation – To illustrate, if convicted of assault and the possible sentence in your case is probation of 1 year, you might request a shorter probationary period of say 3 months in exchange for attending an anger management course and donating money to a Women’s Shelter.
How does it affect an Application for Record Suspension? You must wait 5 years after completion of the sentence before you can submit an application for a summary offense as follows:
Scenario 1: 1 year probation + 5 year waiting period = 6 years
Scenario 2: 3 months probation (plus anger management and donation to women’s shelter completed within the 3 month probationary period) + 5 year waiting period = 5 years and 3 months.
In Scenario 2 you can apply for a Record Suspension 9 months sooner if you are found or plead guilty to this offence if it is tried as a summary offence. NOTE: the waiting period was recently changed from 3 years to 5 years (Bill C-10 Crime Bill / Amendment to Criminal Records Act). If convicted of an indictable offence, the waiting period is 10 years pursuant to the new rules (it was 5 years previously).
Restitution and Fines – Pay these as soon as possible as the waiting period does not begin until paid. I had a client that was given 5 years to pay a large restitution order. Rather than refinance his house immediately and satisfy it, he thought it financially prudent to wait till near the end of the 5-year deadline to pay so as to avoid extra interest payments on his mortgage. He did not realize this delayed his ability to apply for a Record Suspension until it was too late. Once he satisfied his large restitution payment, he then commenced an application for Pardon only to learn he had to wait an additional 5 years due to his delay in satisfying his restitution.
Immediately Obtain Proof of Payment of Fine, Restitution or VFS as Soon as Paid
Immediately obtain proof from the Courts when any sentence (fine, VFS, restitution) is satisfied. You do this for the following two reasons:
- To ensure you fully understood and satisfied 100% of your sentence; and
- To ensure the Courts documented properly the fact you fully satisfied your sentence.
I have processed well over 2,000 Record Suspension Applications (previously called Canadian Pardon) and have come across countless files where clients have missed completing part of a sentence in error or insist that they satisfied it, only to be told by the courts years later when applying for a Record Suspension (or Pardon) that it was not satisfied. They then have to satisfy it and then wait the full waiting period (5 years for summary offences and 10 years for indictable offences). This effectively reset their Record Suspension eligibility waiting period! The Parole Board of Canada rarely accepts an application with a request for leniency due to the error. This can cause considerable delays in Record Suspension eligibility. It can be frustrating when the individual insists it was paid and there is not enough evidence to prove a court administrative error.
Request to Pay Victim Fine Surcharge through the Courts
Is money owed directly to a Victim? Ask if it can be paid to the Victim through the Courts. You don’t want to have to contact the “Victim” years later to obtain proof that you paid the restitution as ordered when applying for a Record Suspension. This can be offensive to the Victim and he or she may be tempted to deny the fact that you paid the restitution in order to be re-compensated. Or, simply, the Victim may be un-reachable or may refuse to give you the confirmation you seek. If you’re unable to get confirmation, it may affect your Record Suspension eligibility and you could be forced to re-pay it and then wait the 5 or 10 year waiting period before qualifying for a Record Suspension. Sometimes there are exceptions–but it can be difficult to deal with.
United States Waiver of Inadmissibility
Some individuals may choose to plead not guilty when they realize the long-term consequences of having to apply for Waivers and the possibility that they may not be able to obtain legal entry to the United States for at least 5 years.
- some convictions render you excludable to the United States.
- the United States treats discharges the same way they treat convictions.
- if convicted or discharged, it may be upwards of 5 years or more before the United States considers granting you a U.S. Waiver of Inadmissibility so that you can gain legal entry.
- if convicted and your record makes you excludable to the United States, it could cost you thousands of dollars plus consume a lot of your time applying for Waivers throughout the rest of your life (they are currently only granted for period of up to 5 years).
- Individuals convicted of sex offences or serious drug offences may now have to spend upwards of $5,000 on Psychological Testing by a DHS Approved Panel Physician.
- NOT all convictions make you excludable. In some cases, if you only have one excludable offence (not drug-related), you may be exempt from having to apply for a Waiver if the crown proceeded summarily and the maximum potential sentence does not exceed one year and you were not sentenced to 6 months or more in jail. Therefore, in some cases you might negotiate a plea of ‘summary’. To find out if your potential conviction renders you inadmissible, please call!
You will find an explanation of what a discharge is in this excerpt from the Canadian Criminal Code:
730. (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused by discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).
Though not a conviction, it is still evidence of guilt because the accused ”pleads guilty to or is found guilty of an offence.”An absolute discharge will appear on your criminal record for one year and a conditional discharge will appear on your record for 3 years.
CAUTION: The discharge will show up in employment pre-screening or at U.S. border crossings during the one or three year period that the discharge appears on your record. And, if your discharge is not automatically purged after the one or three year period, the discharge will appear on your record until you write to the RCMP to have it purged.
Having a discharge can affect you the following ways:
- It is still evidence of guilt.
- It appears on your RCMP record for one year (if absolute) or three years (if conditional), following which it is either purged or you have to request in writing to have it purged.
- A discharge may prevent you from gaining legal entry to the United States if it is an excludable offence. Waivers can cost thousands over your lifetime. And, it is possible that if you need a Waiver it will not be granted until at least 5 years have passed since the alleged offence was committed.
- The discharge will show up on a criminal records check for employment, volunteering, adopting, etc. until such time as it has been purged.
Most lawyers know that discharges are purged automatically after one year for absolute discharges and after three years for conditional discharges. However, if other charges were withdrawn or dismissed at the same time, this could result in an ‘incomplete’ purge of the RCMP Record, meaning the discharge was purged but entries in the computer database showing withdrawn or dismissed charges remain. As a result, the FPS number associated with the criminal record remains. Here is what happens:
- A 48 Hour Name Search (criminal record search based upon name and date of birth) will reveal “there may be a criminal record” which can only be verified by fingerprints.
- A fingerprint based criminal record search for employment will reveal that there is a police file, but no information will be provided leading others to know that a record did exist. The only way to correct this is to contact the arresting police and ask them to notify the RCMP to purge the withdrawn/dismissed charges, a process which can take upwards of 6 months and delay employment opportunities.
SUMMARY / FINAL COMMENTS:
- If pleading guilty or negotiating a particular sentence and method of trial (summary or indictable) keep in mind how it affects Record Suspension eligibility and life time cost of obtaining U.S. Waivers of Inadmissibility.
- I have had countless clients whose ability to obtain a Record Suspension or Pardon was delayed because of the type of sentence they received, failure to satisfy an entire sentence or due to a possible court error where the courts insist a sentence was not satisfied when perhaps it was.
- I have had many clients wish they pursued the “not guilty” option once learning of their lifetime inadmissibility to the United States, difficulty in obtaining a Waiver within 5 years, and time/money to apply for Waivers over their lifetime.
For more information, please click the following links:
Request for Referral
We would be pleased to receive your referrals for Record Suspension and U.S. Waiver Applications.
We have processed over 5,000 applications for Pardons (now called Record Suspensions) and US Waivers (the owner has 25 years of experience, and the company has been in business since 1995).
We are leading experts in the industry and provide exceptional customer service–we have combined office experience of 50+ years, all files are handled promptly and on-time, and clients can always reach an actual employee in a few short rings any time they call during office hours (we always have the phones ring live as we are not fans of automated voice systems).
We also provide on-site ink and electronic fingerprinting services.