Can we hurry along hubby’s expungement?

Dear Mrs Macaulay,

I am a Canadian citizen living in Canada. I recently got married to my husband, who I met two years ago. Last year he underwent a trial, in a case that was going on for approximately 4 years. He was with a friend in a vehicle, and the friend gave him some money, and asked him to go into a store to purchase something, while the friend waited in the car. Upon doing so, he was told by the store owner that the money was not real, and law enforcement officers were called.

My husband tried to explain what happened. His friend took off. He was charged with printing and making fake money.

After 4 years of going back and forth in court, the prosecutor dropped the charge of making fake money, then re-charged him for possession of fake money. He was fined $150,000 or 30 days, and he paid the fine. He was found guilty in November 2022, and fined in December of 2022.

I am now filling for him to come to Canada, but he has possession of three counterfeit notes on his record. He has applied for an expungement; however, I don’t know if he will be granted one, or how long it will take.

His application has been put on hold until he can provide a clean criminal record report, and he has been told that they cannot give him a print out of his record until his expungement is completed, or his current charges will stay as it is on his record.

We want to start a family and this is causing a delay in our life.

Is there any way to speed up the process, or anything that may be done for a favourable outcome?

It seems that you are putting the cart before the horse by having filed for your husband knowing that he had a record for a criminal conviction which had not been expunged. In fact, he does not at this point of time qualify in the face of the law for expungement, as his conviction was only a year ago and his sentence was imposed about 11 months ago. In addition, the sentence imposed was a fine or a period of 30 days imprisonment.

The Criminal Records (Rehabilitation of (Offenders (Amendment) Act 2014 fixes the minimum period of rehabilitation at three years for convictions which do not include a term of imprisonment. For offences which include a term of imprisonment, which is six months or below, the rehabilitation period which applies to such convictions is five years; and beyond six months, the rehabilitation period increases to seven, and then to 10 years depending on the term of imprisonment imposed in the sentences. This makes it patently clear that your husband assumes that the board can be convinced that the alternative sentence of 30 days was immediately vitiated upon his payment, and the minimum rehabilitation period which applies to his conviction would be the minimum period of three years. If the board does not accept this argument, then his period would be five years. So your husband would not be eligible to apply for his conviction to be expunged until either three or five years have expired. The Act specifies that the rehabilitation period commences at the end of the sentence of imprisonment or upon the payment of the fine imposed. So his rehabilitation period would have commenced at the date he paid the fine in December 2022, not quite a year as yet. Upon the best interpretation, your husband’s rehabilitation period could only expire in December 2025. It is after this date that he could legally apply for his record to be expunged.

You ask whether there is any way to speed up the process. There is no way to do this as the periods of rehabilitation are clearly stated in the Act and the board and everyone is bound by the clear statement of the law in Acts of Parliament. However, there is provision in section 23 of the Act, which provides that the board, in considering an application for expungement from the records of a spent conviction, should on the completion of its investigations, if it is satisfied that the applicant has been rehabilitated from the facts and representations relied on by the applicant, his behaviour since his conviction, and the results obtained from the board’s enquiries, and that no interest of justice or of national security would be prejudiced, must issue a direction that the spent conviction be expunged from the records.

Such a person’s record would be clean and be as if he was never charged and convicted. If the application is refused, the applicant can re-apply after the expiration of two years from the date of such a rejection or in a lesser period as the board may decide.

Your husband must wait for his rehabilitation period to expire to proceed with his application for expungement. The only process which may, but I cannot even intimate that it would speed up the clearance of his record, is by way of an application to the Governor General’s Privy Council for a pardon. I would not advise this because, as I recall, this proceeding used to take a goodly amount of time and he would have to produce a great deal of facts and references of persons about his character, life and future worth and the reason underlining the belief that he ought to be pardoned.

It seems to me that you and your husband must bide the legislative time and if as you say you wish to start a family as soon as possible, then you would have to come to Jamaica and spend periods of time with him and proceed with your familial plans, until the expiration of his rehabilitation period when he can reapply for the expungement of the criminal conviction from the records.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.