Area of Law: Criminal Records | Pardons & USA Waivers
Answer # 2171
When is someone eligible for a Record Suspension (RS)?Region: Ontario Answer # 2171
Contrary to what most people believe, criminal records are only automatically destroyed or sealed in limited situations. To ensure that an adult criminal record is completely sealed or destroyed, the individual must take steps (refer to How to remove a criminal record).
If you were convicted of an offence, you must apply to have your record suspended, which means that it will be sealed and removed from the main repository of RCMP records, and from the police station and courthouse. Generally, people are eligible to apply for a record suspension once they have completed the sentence imposed by the court and have waited the necessary time-period.
What are the waiting periods?
Waiting periods depend on the seriousness of the case. If the case was prosecuted summarily (less serious offences), the waiting period is five years; if the case was prosecuted by indictment (more serious offences), the waiting period is ten years. The waiting period does not begin until the sentence imposed by the court has been completed.
The sentence can include:
- fine payments, surcharges and costs
- restitution and compensation
- jail time.
Prohibitions not included in calculation for eligibility: Prohibitions (such as driver’s licence suspensions) are not included in calculating eligibility. Although the waiting period must pass before a record suspension can be granted, it is a good idea to start collecting information as soon as possible, so that the exact date of eligibility can be determined and to ensure that you have complied with everything that was ordered by the court. The waiting period time frames do not take into account the time it takes to collect the application documents, and the amount of time it will take for the Parole Board of Canada to process the application.
Who is not eligible for a RS?
A record suspension is available for almost every type of crime. However, under the Criminal Records Act, people convicted of the following offences are not eligible for a record suspension:
- except in limited circumstances, those convicted of Schedule 1 offences (which are sexual offences involving children and young people under the age of eighteen), and
- those convicted of “more than three offences each of which either was prosecuted by indictment or is a service offence that is subject to a maximum punishment of imprisonment for life, and for each of which the person was sentenced to imprisonment for two years or more.”
Special eligibility rules for BC and Ontario residents
As of August 2017, the Parole Board has changed its eligibility requirements in compliance with court decisions which found retroactive changes to the pardon program contained in Bill C-10 to be unconstitutional. The new eligibility rules only apply to British Columbia and Ontario residents, and are based on the most recent date of conviction.
After the expiration of all sentences imposed by the court, including imprisonment, probation and the payment of fine(s), eligibility waiting-times are as follows:
1. Convictions before and including June 28, 2010
- 5 years – offence prosecuted by indictment
- 3 years – offence punishable on summary conviction.
2. Convictions between June 29, 2010 – March 12, 2012
- 10 years – for any of the following offences:
- Serious personal injury offence (set out in section 752 of the Criminal Code, including manslaughter);
- Offence for which the applicant was sentenced to a prison term of 2 years or more, and/or
- Offence referred to in Schedule 1 of the Criminal Records Act (CRA) and prosecuted by indictment.
- 5 years – for any of the following offences:
- Any other offence prosecuted by indictment (not included above), and/or
- Offence referred to in Schedule 1 of the CRA that is punishable on summary conviction.
- 3 years – any offence other than the ones mentioned above, that is punishable on summary conviction.
3. Convictions after March 12, 2012
- 10 years – offence prosecuted by indictment
- 5 years – offence that is punishable on summary conviction
In addition, individuals convicted after March 12, 2012 are not eligible if they:
- have been convicted of an offence referred to in Schedule 1 of the CRA; and/or
- have been convicted of more than three offences prosecuted by indictment, each with a sentence of two years or more.
If you have been charged with a criminal offence, refer to our criminal law section.
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