Early Eligibility and the Record Suspension Bill

Since Bill C 10 was first tabled, I have been corresponding with a client who, under the current law, becomes eligible for his pardon on March 27, 2012.

He has an indictable conviction and must until March 27, 2017 under the new proposed pardon eligibility framework before being able to apply for a record suspension.

He has been following the progress of the Bill closely and, with his eligibility date a mere 2 weeks away, was obviously very disappointed to learn that it had passed yesterday.

His first question was: can we submit the application today and see what happens? My response was: maybe. The problem is that the Parole Board normally returns pardon applications that are sent in too early.

As a rule of thumb, we can only submit pardon applications one week ahead of the date that they become eligible at the most and the same will hold true for record suspension applications. Now, it may be that the Parole Board will be feeling magnanimous in light of the changes and will try to help people out that find themselves on the cusp of becoming eligible but it is probably more realistic to expect that it will be business as usual and that applicants who are too early will have their paperwork returned.

To compound the problem: the mailroom of the Parole Board of Canada is a significant affair. A number of weeks can pass between the time that the Board decides to return an application and the time that we actually receive that application at our office.

As the situation currently stands, Bill C10 has not yet received Royal Assent and therefore has not yet become Law. It normally takes a week or 2 for this to happen. And even when it does receive Royal Assent, it includes a number of Coming into Force provisions that mean that the Governor in Council can set a specific date for a particular section to take effect.

In other words, even if the Bill were to become law tomorrow, they may not start enforcing it for some time. Unfortunately, we don’t yet know if there will be a delay in the implementation of this section of the Bill and, if there is to be a delay, how long that might be.

To return to the initial problem of taking a risk and submitting an application too early: if we assume, somewhat conservatively, that it could take a week for C10 to receive Royal Assent and that it could take another 2 weeks before the section of the Bill dealing with record suspensions comes into force, then that buys us another 3 weeks to submit applications that are close to becoming eligible.

In other words, if we are patient and can wait until, say, March 20th to submit the client’s application mentioned above, we just might get lucky and squeak in before the new law takes effect.

If, however, we are too eager and send the application in today and it is returned by the Board for being too early, we may not actually receive the returned documentation for a month, by which time the law will have changed and pardons will have been replaced by record suspensions.

Ultimately, this is an extremely complex and unfortunate situation that some of our clients now find themselves in. We are all dealing with a lot of unknown factors and all we can do, really, is guess as to what the best course of action is right now. If you are a client who is set to become eligible for a pardon/ record suspension in the next week or 2, please contact a counsellor to discuss your options.