Limiting Pardons for Serious Crimes Act (S.C. 2010, c. 5)
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Assented to 2010-06-29
Limiting Pardons for Serious Crimes Act
S.C. 2010, c. 5
Assented to 2010-06-29
An Act to amend the Criminal Records Act
SUMMARY
This enactment amends the Criminal Records Act to extend the ineligibility periods for certain applications for a pardon. It also enables the National Parole Board to consider additional factors when deciding whether to grant a pardon for certain offences.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Marginal note:Short title
1. This Act may be cited as the Limiting Pardons for Serious Crimes Act.
R.S., c. C-47CRIMINAL RECORDS ACT
Marginal note:1992, c. 22, s. 4(1); 2000, c. 1, s. 1(F)
2. Section 4 of the Criminal Records Act is replaced by the following:
Marginal note:Restrictions on application for pardon
4. A person is ineligible to apply for a pardon until the following period has elapsed after the expiration according to law of any sentence, including a sentence of imprisonment, a period of probation and the payment of any fine, imposed for an offence:
(a) 10 years, in the case of a serious personal injury offence within the meaning of section 752 of the Criminal Code, including manslaughter, for which the applicant was sentenced to imprisonment for a period of two years or more or an offence referred to in Schedule 1 that was prosecuted by indictment, or five years in the case of any other offence prosecuted by indictment, an offence referred to in Schedule 1 that is punishable on summary conviction or an offence that is a service offence within the meaning of the National Defence Act for which the offender was punished by a fine of more than two thousand dollars, detention for more than six months, dismissal from Her Majesty’s service, imprisonment for more than six months or a punishment that is greater than imprisonment for less than two years in the scale of punishments set out in subsection 139(1) of that Act; or
(b) three years, in the case of an offence, other than one referred to in paragraph (a), that is punishable on summary conviction or that is a service offence within the meaning of the National Defence Act.
Marginal note:1992, c. 22, s. 4(1)
3. Section 4.1 of the Act is replaced by the following:
Marginal note:Pardon
4.1 (1) The Board may grant a pardon for an offence if the Board is satisfied that
(a) the applicant, during the applicable period referred to in section 4, has been of good conduct and has not been convicted of an offence under an Act of Parliament; and
(b) in the case of an offence referred to in paragraph 4(a), granting the pardon at that time would provide a measurable benefit to the applicant, would sustain his or her rehabilitation in society as a law-abiding citizen and would not bring the administration of justice into disrepute.
Marginal note:Onus on applicant
(2) In the case of an offence referred to in paragraph 4(a), the applicant has the onus of satisfying the Board that the pardon would provide a measurable benefit to the applicant and would sustain his or her rehabilitation in society as a law-abiding citizen.
Marginal note:Factors
(3) In determining whether granting the pardon would bring the administration of justice into disrepute, the Board may consider
(a) the nature, gravity and duration of the offence;
(b) the circumstances surrounding the commission of the offence;
(c) information relating to the applicant’s criminal history and, in the case of a service offence within the meaning of the National Defence Act, to any service offence history of the applicant that is relevant to the application; and
(d) any factor that is prescribed by regulation.
Marginal note:1992, c. 22, s. 4(1); 2000, c. 1, s. 2
4. Subsections 4.2(1) and (2) of the Act are replaced by the following:
Marginal note:Inquiries
4.2 (1) On receipt of an application for a pardon, the Board
(a) shall cause inquiries to be made to ascertain the applicant’s conduct since the date of the conviction; and
(b) may, in the case of an offence referred to in paragraph 4(a), cause inquiries to be made with respect to any factors that it may consider in determining whether granting the pardon would bring the administration of justice into disrepute.
Marginal note:Entitlement to make representations
(2) If the Board proposes to refuse to grant a pardon, it shall notify in writing the applicant of its proposal and advise the applicant that he or she is entitled to make, or have made on his or her behalf, any representations to the Board that he or she believes relevant either in writing or, with the Board’s authorization, orally at a hearing held for that purpose.
5. Paragraph 5(a) of the Act is replaced by the following:
(a) is evidence of the fact that
(i) the Board, after making inquiries, was satisfied that the applicant for the pardon was of good conduct, and
(ii) the conviction in respect of which the pardon is granted should no longer reflect adversely on the applicant’s character; and
Marginal note:2000, c. 1, s. 6
6. (1) Subsection 6.3(2) of the Act is replaced by the following:
Marginal note:Notation of records
(2) The Commissioner shall make, in the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police, a notation enabling a member of a police force or other authorized body to determine whether there is a record of an individual’s conviction for an offence listed in Schedule 2 in respect of which a pardon has been granted.
Marginal note:2000, c. 1, s. 6
(2) Subsection 6.3(9) of the Act is replaced by the following:
Marginal note:Amendment of schedule
(9) The Governor in Council may, by order, amend Schedule 1 or 2 by adding or deleting a reference to an offence.
6.1 Subparagraph 7.2(a)(iii) of the English version of the Act is replaced by the following:
(iii) a service offence referred to in paragraph 4(a); or
7. Section 9.1 of the Act is amended by striking out “and” at the end of paragraph (c) and by adding the following after paragraph (c):
(c.1) prescribing factors for the purposes of paragraph 4.1(3)(d); and
7.1 In the English version of the Act, the words “granted or issued” are replaced by the word “granted” in the following provisions:
(a) the definition “pardon” in subsection 2(1);
(b) subsections 6(1) and (2);
(c) section 6.4;
(d) section 7;
(e) subsection 7.1(1);
(f) the portion of section 7.2 before paragraph (a); and
(g) section 8.
7.2 In section 2.1 of the English version of the Act, the words “grant or issue” are replaced by the word “grant”.
7.3 In the French version of the Act, the words “octroyée ou délivrée” are replaced by the word “octroyée” in the following provisions:
(a) the definition “réhabilitation” in subsection 2(1);
(b) paragraph 7.2(b).
7.4 In section 6.4 of the French version of the Act, the words “octroyé ou délivré” are replaced by the word “octroyé”.
7.5 In section 2.1 of the French version of the Act, the expression “d’octroi, de délivrance” is replaced by the expression “d’octroi”.
8. The schedule to the Act is renumbered as Schedule 2.
9. The Act is amended by adding, before Schedule 2, the Schedule 1 set out in the schedule to this Act.
TRANSITIONAL PROVISIONS
Marginal note:New applications for pardons
10. Subject to section 11, an application for a pardon under the Criminal Records Act in respect of an offence that is referred to in paragraph 4(a) of that Act, as it read immediately before the day on which this Act comes into force, and that is committed before that day shall be dealt with and disposed of in accordance with the Criminal Records Act, as amended by this Act.
Marginal note:Pending applications — Criminal Records Act
11. An application for a pardon under the Criminal Records Act that is made before the day on which this Act comes into force shall be dealt with and disposed of in accordance with the Criminal Records Act, as it read when the Board received the application, if the application
(a) is made after the period referred to in paragraph 4(a) of that Act, as it read immediately before the day on which this Act comes into force, has elapsed; and
(b) is not finally disposed of on the day on which this Act comes into force.
SCHEDULE(Section 9)
SCHEDULE 1(Section 4 and subsection 6.3(9))
1. Offences
(a) under the following provisions of the Criminal Code:
(i) section 151 (sexual interference with a person under 16),
(ii) section 152 (invitation to a person under 16 to sexual touching),
(iii) section 153 (sexual exploitation of a person 16 or more but under 18),
(iv) subsection 160(3) (bestiality in the presence of a person under 16 or inciting a person under 16 to commit bestiality),
(v) section 163.1 (child pornography),
(vi) section 170 (parent or guardian procuring sexual activity),
(vii) section 171 (householder permitting sexual activity),
(viii) section 172 (corrupting children),
(ix) section 172.1 (luring a child),
(x) subsection 173(2) (exposure),
(xi) subsection 212(2) (living on avails of prostitution of a person under 18),
(xii) subsection 212(2.1) (aggravated offence — living on avails of prostitution of a person under 18),
(xiii) subsection 212(4) (obtain, or attempt to obtain, sexual services of a person under 18),
(xiv) paragraph 273.3(1)(a) (removal of child under 16 from Canada for purposes of listed offences),
(xv) paragraph 273.3(1)(b) (removal of child 16 or more but under 18 from Canada for purpose of listed offence),
(xvi) paragraph 273.3(1)(c) (removal of child under 18 from Canada for purposes of listed offences),
(xvii) paragraph 348(1)(a) with respect to breaking and entering a place with intent to commit in that place an indictable offence listed in any of subparagraphs (i) to (xvi), and
(xviii) paragraph 348(1)(b) with respect to breaking and entering a place and committing in that place an indictable offence listed in any of subparagraphs (i) to (xvi);
(b) under the following provisions of the Criminal Code, R.S.C. 1970, c. C-34, as that Act read before January 1, 1988:
(i) section 166 (parent or guardian procuring defilement), and
(ii) section 167 (householder permitting defilement);
(c) that are referred to in paragraph (a) and that are punishable under section 130 of the National Defence Act;
(d) that are referred to in paragraph (b) and that are punishable under section 120 of the National Defence Act, R.S.C. 1970, c. N-4; and
(e) of attempt or conspiracy to commit an offence referred to in any of paragraphs (a) to (d).
2. Offences
(a) involving a child under the following provisions of the Criminal Code:
(i) section 153.1 (sexual exploitation of a person with a disability),
(ii) section 155 (incest),
(iii) section 162 (voyeurism),
(iv) paragraph 163(1)(a) (obscene materials),
(v) paragraph 163(2)(a) (obscene materials),
(vi) section 168 (mailing obscene matter),
(vii) subsection 173(1) (indecent acts),
(viii) section 271 (sexual assault),
(ix) subsection 272(1) and paragraph 272(2)(a) (sexual assault with firearm),
(x) subsection 272(1) and paragraph 272(2)(b) (sexual assault other than with firearm),
(xi) section 273 (aggravated sexual assault),
(xii) paragraph 348(1)(a) with respect to breaking and entering a place with intent to commit in that place an indictable offence listed in any of subparagraphs (i) to (xi), and
(xiii) paragraph 348(1)(b) with respect to breaking and entering a place and committing in that place an indictable offence listed in any of subparagraphs (i) to (xi);
(b) involving a child under the following provisions of the Criminal Code, R.S.C. 1970, c. C-34, as that Act read before January 1, 1988:
(i) section 153 (sexual intercourse with stepdaughter, etc., or female employee), and
(ii) section 157 (gross indecency);
(c) involving a child under the following provisions of the Criminal Code, R.S.C. 1970, c. C-34, as that Act read before January 4, 1983:
(i) section 144 (rape),
(ii) section 145 (attempt to commit rape),
(iii) section 149 (indecent assault on female),
(iv) section 156 (indecent assault on male),
(v) section 245 (common assault), and
(vi) subsection 246(1) (assault with intent to commit an indictable offence);
(d) that are referred to in paragraph (a) and that are punishable under section 130 of the National Defence Act;
(e) that are referred to in paragraph (b) or (c) and that are punishable under section 120 of the National Defence Act, R.S.C. 1970, c. N-4; and
(f) of attempt or conspiracy to commit an offence referred to in any of paragraphs (a) to (e).
3. Offences
(a) under the following provisions of the Criminal Code, R.S.C. 1970, c. C-34, as that Act read before January 1, 1988:
(i) subsection 146(1) (sexual intercourse with a female under 14),
(ii) subsection 146(2) (sexual intercourse with a female 14 or more but under 16), and
(iii) section 151 (seduction of a female 16 or more but under 18);
(b) that are referred to in paragraph (a) and that are punishable under section 120 of the National Defence Act, R.S.C. 1970, c. N-4; and
(c) of attempt or conspiracy to commit an offence referred to in paragraph (a) or (b).
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