Can his records be expunged?

Dear Mrs Macaulay,

I have been married to a Jamaican for the past five years and we have a four year old daughter. My husband was very young when he was charged with illegal possession of a firearm and ammunition. It has been 10 years since he was released from prison after serving his entire sentence and he has not had any more brushes with the law since paying his dues. He applied for a record expungement and was rejected.

I live in Canada and my understanding is that my country considers my husband as rehabilitated as it has been over 10 years since the charge, but it still requires an expungement from Jamaica. Is there anything that can be done so that I can bring my husband to Canada?

I am sorry that you and your daughter have found yourselves in the situation you are in. You are without your husband and your daughter without her father.

I am not sure what you mean when you say your husband was very young, but he was clearly of an age of criminal responsibility. He was clearly tried, convicted and sentenced to terms of imprisonment, which were either to be served concurrently or consecutively. So being young is quite irrelevant to the law of the Criminal Records (Rehabilitation of Offenders) (Amendment) Act 2014. This Act lists offences for which convictions may not be expunged and your husband’s charges are such offences, I am sorry to say.

It is therefore not surprising that his application for his conviction to be expunged was refused. There is no exception. This therefore renders the fact that he has served his time and has not had any more brushes with the law irrelevant. Canada’s consideration of who is rehabilitated is also irrelevant, as each country has its own laws, and your husband’s convictions can never, in Jamaica, be treated as “spent convictions”, because the Third Schedule makes it clear that his offences may not be expunged. You see, a “spent conviction” means a conviction of a person who at the end of the appropriate rehabilitation period, is treated as a rehabilitated person. Definitely, Canada needs your husband’s convictions in Jamaica expunged, before it would grant him a visa to enter and remain there.

You have asked whether there is anything to be done, and there is provision in the Act, that an applicant can re-apply when his/her application is rejected after two years from the date of rejection, or a shorter period as the board determines. I am, however, certain that because of the provision in the Third Schedule of the Act, that the result of a re-application would again be rejection, because the provision is very clear in words and meaning and so there is no leeway for the conclusion to be different from the first application.

Anyway, if your husband reapplies and he is rejected again, he can appeal to the minister within 60 days from the date of the second rejection or within any longer period which the minister permits. The minister will review everything and if satisfied that the board had properly and duly considered the application, he shall reject the appeal. Or, if he is satisfied that the rejection was unjust or perverse, he shall allow the appeal and reverse the decision of the board, and in this circumstance the expungement shall be directed by him. These are provided for in sections in the Act.

The Act also provides that nothing contained in it shall affect any right vested in the Governor General by the Constitution or by prerogative or any other power to grant a pardon, if your husband petitions him to grant him pardon for his convictions.

Finally, you may consider lobbying the Government to change the provision of the Third Schedule which adversely affects your husband’s chances of joining you and your daughter in Canada. Despite my suggestions regarding your husband re-applying, appealing to the minister or petitioning the Governor General, I must honestly say that I am not optimistic about any of them.

You may have to keep visiting him in Jamaica or change your residence and come here to reside with him. This is a decision you should both make after deep and extensive discussion about whether you and your daughter would continue visiting him in Jamaica, or otherwise. All the very best.

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.