Law Times

LAW TIMES • OCTOBER 29, 2012 C Navigating the new world of criminal record suspensions COMMENT tion matters was three years under the old regime. Appli- cants must now wait fi ve years for a suspension of their criminal record. For indictable matters, the waiting period for a record suspension is 10 years. Clients with more than three convictions for indictable off ences, each with a sen- tence of two years, are ineligible for a suspension of their criminal record. Th e waiting period in either case begins aſt er the latest lients can no longer apply for pardons as they must now seek a suspension of their criminal re- cord. Th e criminal record suspension isn't as easy to obtain as a pardon once was. It also takes longer. Th e waiting period for a pardon for summary convic- nor did a pardon do so. If there was a court order other than one for probation, such as a fi rearms or driving prohibition, it will remain in force. Any information that has found its way onto databanks outside Can- ada cannot be corrected, so clients should wait for confi rmation of the record suspen- sion before travelling. Certain convictions make the client pre- A suspension doesn't clear up everything, of the following events: completion of the jail sentence, payment of any fi ne or victim fi ne surcharge, satisfaction of any restitution or compensation order, and the expira- tion of any probation order. Suspensions of criminal records won't be available if ordering one would bring the administration of justice into disrepute. Suspensions allow clients to say they don't have a crim- separate and apart from other judicial records. Th e re- cord may not be disclosed without prior approval of the justice minister. In organizations under federal jurisdic- tion, inquiries about off ences that have received a record suspension are impermissible. When clients ask me how they should respond to employment applications that try to get around their pardon, I recommend that they write, "I have no criminal record. s character. Th e client's information remains " inal record and are evidence of the fact that the board has accepted that they've been of good conduct and that the conviction should no longer adversely refl ect on the applicant' A Criminal Mind stigma or establishing fi nancial stability. An early criminal record will be a cata- strophic career killer. What will be the rela- tionship between suspensions of criminal records and vulnerable sector safety checks? Suspensions of criminal records don't clear up in-house police records. Pardons were granted frequently. Statistics sumptively ineligible for a suspension of a criminal record. Sexual off ences are treated dif- ferently. Off ences listed in Schedule 1, such as sexual interference, living off the avails of pros- titution, and even assaulting a child, are generally barriers to applying for a suspension of a criminal record. People may apply for a record suspension if they weren't in a posi- tion of trust or authority towards the victim, if there was no violence threatened or used, and if they were less than fi ve years older than the victim. Th e applications are not for the poor. Th e fi ling fee alone is $631 and applicants have to pay the fees for fi ngerprints, a copy of their criminal record, copies of all court docu- ments, and local police checks. Th e processing period for summary conviction matters is six months, 12 months for indictable off ences, and up to 24 months if the case isn't routine. Th e applicant does have an opportunity to make further submissions. Applications must outline the measurable benefi t to the applicants that would sustain their rehabilitation into so- ciety as law-abiding citizens. Th at means identifying how a suspension of the record would assist with employment, obtaining a residence, furthering education, avoiding Rosalind Conway with the Crown by obtaining an election to proceed sum- marily when you can and avoid unnecessarily having cli- ents plead guilty to an off ence that makes them ineligible to apply for a suspension of their records. When making sentencing submissions to the court, counsel may want to outline the impact that not granting a discharge would have upon the client given the signifi cant waiting periods. I thought the old word pardon was succinct, func- Be mindful of the eligibility criteria when negotiating on the Parole Board of Canada web site indicate that 98 per cent of pardon applications were granted in 2009-10. And not many pardons were revoked as 96 per cent of those granted since 1970 are still in force. Th e data suggest low recidivism rates for those granted pardons. PAGE 7 tional, and clear. Although it sounds as if the government has taken something away by calling this a suspension, the legal eff ect appears to be the same. Unfortunately, the new terminology will lead to confusion as a suspended sentence is, of course, a criminal record but a suspension of a criminal record is not a record at all. Th is should be fun to explain to clients. LT Rosalind Conway is a certifi ed specialist in criminal litiga- tion. She can be reached at rosalind.conway@gmail.com. it's also taking a similarly comprehensive look at the potential regulation of Ontario's J home and property inspection industry. Although it' Government looking at inspecting home inspectors The Dirt ust a few months aſt er announcing a comprehensive public consulta- tion on the Condominium Act, the provincial government announced printed realtors' forms of agreements of purchase and sale, the conditional-upon- inspection clause has become quite ubiq- uitous in arm' s not yet a part of most pre- deals. A recent online poll conducted by the Tor onto Star concluded that almost 40 per cent of all homebuyers wouldn't dare buy a house without one. A telling statis- tic from the same online poll hints at the probable reason for the government' s-length residential resale cent interest in industry regulation: almost the same number of respondents also noted they had purchased a home with a clean home inspection report only to dis- cover signifi cant undisclosed defects in the house aſt er closing. Th e question of industry compe- tence isn't new. Mike Holmes, Canada's s re- the idea of regulating home inspectors nationwide. Even if Ontario ultimately passes legislation licensing and regulating home and property inspectors, it won't exactly be breaking new ground in this aspect of consumer protec- tion. In March 2009, British Columbia became the fi rst Canadian province to imple- ment mandatory licensing of home inspectors. Alberta fol- lowed suit in 2011 and Quebec is already ahead of Ontario in the consultation and prelegislative diligence process. South of the border, about half of the U.S. states cur- rently require licensing. But unbeknownst to many, Ontario already has quasi-governmental over- sight of the home inspection industry. As Aaron reported in his 2009 column, a private member' iconic home renovation TV personality, recently wrote in the Nati onal Post: "I've been saying it for years. Th e home in- spection industry is like the Wild West — a lot of cowboys, not a lot of sheriff s." He elaborated on his lament by noting that "there are good home inspectors working in the industry. But we need to take the necessary measures that will make sure there are only good inspec- tors working in the industry. We can't aff ord not to. rest of Canada needs to get behind this so we're all on the same page moving forward. Holmes concluded by noting "the " in one of his Toronto Star columns back in 2009 commenting on British Colum- bia' " Likewise, our own Bob Aaron, s then nascent home inspection li- censing legi slation, glowingly endorsed lished the Ontario Association of Home Inspectors as a non-profi t corporation "dedicated to enhancing the techni- cal skills and professional practice of home inspectors and maintaining high professional standards through educa- tion and discipline. s bill in 1994 estab- increase transparency; en- sure a minimum standard of training; improve consisten- cy; and enhance consumer protection. Th e Ontario government' Jeffrey Lem CMHC research report, now a decade old, considered the benefi ts of legisla- tion mandating home inspections for all resale housing transactions. A bold idea at the time, the CMHC report concluded that "prelisting home inspections could benefi t sellers, giving them the option of remedying any major problems or adjusting their price. eff orts seem limited to licens- ing of home and property inspectors, but in 2002, the Canada Mortgage and Hous- ing Corp. actually commis- sioned a research report that went one step further. Th is s "home inspections are not meant to be used as tools for renegotiation, but this is now oſt en the case. Pre -listing inspec- tions would avoid this problem." Alas, the CMHC report also con- " It also noted that the association can use the registered home inspector designation, member- ship isn't compulsory as inspectors can still legally practise their trade without belonging to it as long as they don't hold themselves out as a registered inspector. Ontario' " While members of broader consumer protection plan, in- volve consulting with home inspector associations, s eff orts will, as part of a tives from the real estate sector, and other industry stakeholders on manda- tory minimum qualifi cations for home inspectors. Th e stated government ob- jective of this consultation process is to come up with legislation that would consumers, representa- lic ensing of home inspectors. Anecdot- ally, there are some concerns that gov- ernment competency standards will be so low that many inspectors with sub- standard skills could get a reputational liſt in the form of an offi cial stamp of ap- proval. Also anecdotally, there are con- cerns about increasing transaction costs if all inspectors now have to be qualifi ed and registered, especially in remote and rural areas where licensed home inspec- tors will be comparatively rare. While increasing transaction costs is always a concern whenever a govern- ment imposes a licensing and regula- tion regime, these supply-side concerns would be more of an issue in the case of the mandatory home inspections con- sidered in the CMCH report. As long as home inspections aren't mandatory, pur- chasers not insisting on deals conditional upon home inspection (or waiving it if it' counter any shortage of licensed home inspectors at least in part. As with the public consultations on s already in the off er) will presumably cluded, quite accurately in light of the fact that the current government ef- forts avoid any discussion of mandatory home inspections, that "unless politi- cal interests change signifi cantly, there is no momentum for" making home inspections mandatory. Th at said, the consultation process is deliberately amorphous in scope and it' unimaginable that, since the govern- ment is already considering the merits of law reform in this area of consumer protection, the conclusions of the 2002 CMHC report advocating mandatory home inspections might yet see the light of day in the form of legislation. While it' s not entirely doesn't seem to be any organization-lev- el resistance to the pending government www.lawtimesnews.com the Condominium Act already under- way, there was no set timeline announced for the process for home inspections, nor are there any promises that legislative re- form will necessarily follow. Furthermore, the recent prorogation of the legislature threatens to delay both eff orts, although it also seems logical to conclude that a public consultation process could proceed rela- tively unimpeded in that scenario. Th en again, perhaps only the truly naive believe the government will get much done dur- ing prorogation, including when it comes to public consultations that may lead to signifi cant legislative reform aff ecting the real estate industry. s too early to tell, there LT Jeff rey W. Lem is a partner in the real estate group at Miller Th omson LLP. His e-mail address is jlem@millerthomson.com.

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