What to do if your Pardon gets Denied?

In Canada, when an adult individual is charged and convicted of a criminal offence, they will have a criminal record unless they are granted a discharge by the sentencing court. A criminal record is permanent and will remain for the duration of the offender’s life, unless the offender applies for and is granted a pardon or record suspension. A pardon or record suspension will seal the offender’s criminal record, meaning it cannot be accessed by anyone except in exceptional circumstances. Once granted, an individual is considered to have a clean criminal record and will pass even a vulnerable sector check in most cases.

What is a Proposal to Deny?

When an individual applies for a record suspension, they will send their application package to the Parole Board of Canada who will review it and determine whether or not to grant the application. Upon initial review of the application, the Board can either grant the application or propose to deny the application. Where they propose to deny the application, they will send a letter to the applicant indicating same.

A proposal to deny is a document issued by the Parole Board of Canada indicating that they are recommending to deny the individuals application for a record suspension. This will happen when the applicant does not meet eligibility requirements. The proposal to deny letter will outline the reason the Board believes the applicant does not meet the requirements, and the reason they are proposing to deny the application.

Why did I Receive a Proposal to Deny?

When reviewing an application and determining whether to grant a record suspension, the Parole Board will consider whether the applicant has been of good behaviour since their last conviction. To determine this, the Parole Board will investigate the applicant’s history with local police departments and other government agencies. This investigation into the applicant will uncover any negative interactions the applicant has had with law enforcement since their last conviction. This could include very minor interactions with law enforcement like receiving a speeding tickets or warning from police. It would also include any new arrests that did not result in charges, charges that were withdrawn, provincial offence tickets, and virtually any other interaction with police. The Board can use any and all of these reasons to deny an applicant.

When determining whether the grant an application, the Board will consider the applicants file and decide whether they have been of “good conduct” and whether they have been convicted of an offence under an Act of Parliament during the applicable eligibility period. For those requesting a record suspension for a summary conviction offence, the eligibility period of five years. For an indictable offence, the eligibility period is ten years.

What to do if you have Received a Proposal to Deny

Once an applicant has received a proposal to deny, they will typically have 90 days to provide submissions to the Parole Board regarding why their application should be granted. These submissions must address the Board’s specific concerns with the applicant’s recent interactions with law enforcement. Essentially, the applicant must explain why these recent negative interactions with law enforcement are not indicative of someone who exhibits bad conduct. Further, where the applicant has been convicted of an offence under an Act of Parliament, or any other Act, submissions should address that as well.

If you have received a proposal to deny from the Parole Board, it is important to consult legal counsel for assistance in providing submissions. If not adequately addressed, the Parole Board may rely on the applicant’s negative interactions with law enforcement as a basis for denying the application. Once an application is denied, it cannot be reviewed by the Board and the applicant must wait a period of time before re-applying.

When will a Record Suspension Application be Denied?

The Criminal Records Act outlines the rules and regulations associated with record suspensions in Canada. Section 4.1(1) of the Act outlines the legal test used when determining whether to grant a record suspension. It states that the Board may grant a record suspension where they are satisfied that the applicant has been of good behaviour and has not been convicted of an offence under an Act of Parliament during the applicable eligibility period (five or ten years).

In cases where the applicant is requesting a record suspension for an indictable offence, submissions should also address how granting the record suspension would sustain the applicant’s rehabilitation in society, would provide the applicant with a measurable benefit, and would not bring the administration of justice into disrepute.

Record Suspensions for Sexual Offences

Pursuant to section 4(2) of the Criminal Records Act, an individual is ineligible to apply for a record suspension if they have been convicted of an offence outlined in Schedule 1 of the Act, or if they have been convicted of more than three offences that were prosecuted by indictment or a service offence punishable by a maximum of life imprisonment, and where the applicant was sentenced to at least two years imprisonment for each of those offences.

Schedule 1 includes numerous sexual offences including sexual assault, sexual interference, child pornography, and sexual exploitation. Those convicted of sexual offences are generally ineligible to receive a record suspension unless they fall within the exception noted in section 4(3) of the Act.

Pursuant to section 4(3) of the Act, an individual who has been convicted of an offence under Schedule 1 of the Act may apply for a record suspension in cases where the Board is satisfied that:

• The applicant was not in a position of trust or authority over the victim of their offence, and the victim was not in a position of dependency on the applicant.
• The applicant did not use, threaten, or attempt to use violence, coercion or intimidation against the victim in the commission of the offence.
• That the applicant was less than five years older than the victim at the time the offence was committed.

Where an individual applies for a record suspension for a sexual offence listed in Schedule 1 of the Act, they will almost certainly receive a proposal to deny. The Board will outline its specific concerns with granting the application and will provide the applicant with a chance to provide submissions regarding details of the offence. If you have received a proposal to deny on an application related to a sexual offence, it is important to hire legal counsel to prepare submissions on your behalf.