How Pardons are Different Around the World
by Eugene Ohotnikov, Research Analyst with Pardon Applications of Canada
Pardon laws in Canada have similarities with other countries, benefiting society and progressing fundamental human rights. But there are also countries that follow a different approach to giving its citizens and residents a second chance at their criminal record. There are even countries without a Pardon system, keeping criminal records publicly accessible forever.
Let’s compare the Pardon laws and process offered by Canada with some other well known countries.
A federal pardon in the United States is an opportunity available specific to the President of the United States that completely sets aside the punishment for a federal crime. The authority to take such action is granted to the President by the U.S. Constitution. A Pardon is one form of clemency power of the President, the others being commutation of sentence, remission of fine or restitution, and reprieve.
Under the Constitution, the President’s clemency power extends to all federal criminal offenses. All requests for executive clemency for federal offenses are normally directed to the Office of the Pardon Attorney in the U.S. Department of Justice for investigation and review, but the President is free to bypass that office. A Pardon does not take effect if the beneficiary of the Pardon does not accept it.
The President’s Pardon power is limited to federal offenses. The Constitution only grants the President the power to Pardon “offenses against the United States”. An offense that violates state law, but not federal law, is an offense against that state rather than an offense against the United States.
Pardons have been used for presumptive cases, such as when President Gerald Ford Pardoned Richard Nixon, who had not been charged with anything, over any possible crimes connected with the Watergate scandal, but the Supreme Court has never ruled on the legality of such Pardons. There is disagreement about how the Pardon power applies to cases involving obstructions of an impeachment. And the ability of a President to Pardon himself has never been tested in the courts, because, to date, no President has ever taken that step.
It is worth noting that the United States Citizenship and Immigration Service disregards the expungement of the criminal records for immigration purposes unless the person whose records were expunged was found innocent by the court. Besides, such persons can be required to disclose previous criminal records when applying for a job in a public office.
In a general case, the criminal records in the People’s Republic of China will not be removed. This approach was practiced for many years, and it was only in the year 2011, when the Chinese courts started to experiment with the expungement of criminal records for juvenile offenders.
For now, only those who have committed crimes before reaching the age of 18 are eligible for sealing of criminal records in China. In order to qualify, such applicants’ penalty should not exceed five years of imprisonment. In all other cases, the criminal records in China would continue to remain on file.
For a long time, the UK legislation didn’t allow clearing criminal records. In 2017, there were several attempts to introduce the same procedure for expungement as in the U.S. In 2019, the Supreme Court of the United Kingdom has stated that the rules of the UK Disclosure and Barring Service (DBS) were disproportionate, and the reform has begun.
For the moment, the offences committed in the UK by individuals who were older than 18 years at the time of the offence can be filtered only in 11 years after conviction in the absence of new offences. Still, according to the report published by The Guardian, the reform is lagging, and the UK government has yet to take additional steps to make the new regulations work.
In France, criminal records are kept by the Casier judiciare national (National Criminal Records Office). The CJN issues three types of ‘reports’ or ‘criminal record certificates.’ The first one, known as Bulletin No. 1, includes all convictions and can be provided only to courts. Meanwhile, Bulletins 2 and 3 are issued at the request of administrative bodies and private organizations, including employers.
The French system includes many advancements in the area of criminal record expungement. One of them, known a legal rehabilitation, was introduced in the new Penal Code in 1994, which automatically excludes certain offences from Bulletin 2 and 3 after the expiry of a certain period after sentence, for example, three years after a fine, or five years from the end of a one-year sentence in prison. Other options include clearing Bulletins 2 and 3 at request to the court and judicial rehabilitation based on merit.
The Pardon laws in Canada allow individuals with a criminal record to separate them from a publicly accessible database in the Canadian Police Information Centre (CPIS). The Pardon application can be filed five years after a minor offence or ten years after a more severe or indictable offence. There are only a few exceptions, such as offences against a minor or having three offences with sentences over two years, which exclude eligibility for Canadian Pardon.
The Pardon application process typically takes from 10 to 14 months and includes ten legal steps, as specified in the Criminal Records Act of Canada.
The same approaches to sealing or expungement of criminal records are shared in many other countries. Some of them use an approach similar to China’s policy, keeping all criminal records permanently on file, available for disclosure. The other countries employ similar practices as in the US, allowing expungement of various offences provided certain conditions are met.
Thus, in Russia, the authorities keep all information related to offences in a central database without an option for expungement. There are several cases in the European Court for Human Rights against the State of Russia initiated after Russian authorities have refused to delete criminal records on file. The same applies to the state of Moldova. Interestingly, in Slovenia, the authorities are even keeping driver’s records on a permanent basis, explaining it by the goal of “increasing road traffic safety.”
Summing It Up
On the face of it, the Pardon laws in Canada may look rather complicated with a lengthy application process and a number of limitations on eligibility. However, after a more in-depth look, it becomes apparent that the Canadian Pardon is one of the most well-regulated compared to other jurisdictions. With relatively low requirements and clearly articulated procedure, it gives a fair chance of a fresh start to those who qualify with a previous criminal history.
About the Author
Eugene Ohotnikov is a Research Analyst with Pardon Applications of Canada and legal copywriter on a broad array of subjects including family law, estate planning, immigration, taxation, real estate, conveyancing, startups, and more. Eugene holds a Master’s degree in law. During his career, Eugene has developed legal content for law firms and clients from the US, Canada, China, Singapore, and Malaysia. Contact Pardon Applications of Canada via 866-383-9744.