In 2012, the Canadian government, then under the authority of the Harper Conservative government, made some changes to the way that record suspensions (formerly known as “pardons”) operated in Canada. Specifically, they decided to lengthen the amount of wait time required before people could apply for a record suspension.
Now, after some deliberation by the courts in British Columbia and Ontario, it has been decided that the changes made are in violation of the Charter of Rights and Freedoms, specifically with regards to when it is permissible to apply for a record suspension. But why and how are we at the legal crossroads we find in Canada today? Let’s look back at exactly what changed.
The Way It Was
Before the changes made by the government in 2012, there were two fixed waiting times for people that wanted to get a record suspension of their criminal record in Canada. The waiting times were determined by the nature of the crime.
Less serious criminal offences are known as “summary offences” in Canada. This means that the fines applied or jail sentences—if any—are less severe, because the charges themselves are less severe. Possession of marijuana under 30 grams, or DUI, theft under $5000, assault, Impaired, fraud under $5000 offences usually falls under this category, for example. A summary offence usually means that while a person is charged and convicted—there was no need for a full trial, complete with a jury to decide a person’s final fate. Summary convictions, prior to 2012, required a person to wait three years after the payment of fines/completion of jail sentence or probation before an application for a record suspension could be made.
Then there are “indictable offences” and these are more serious convictions. Criminal actions like aggravated assault, manslaughter, sexual assault, fraud over $5000 and theft over $5000 and drug trafficking fall under this category. In these cases, the sentences are more severe, and the option for a trial complete with a jury to reach a verdict is in play. Before the changes made by the government, an indictable offence conviction meant that a person needed to serve time, complete probationary periods, and then wait five years before a record suspension could be applied for.
The 2012 Decision
In 2012, the government decided that these waiting periods weren’t long enough, and passed laws to lengthen the wait times. This was, in part, a reaction to the news that former hockey coach Graham James, who had been convicted of sexual offences, had received a record suspension, but then went on to commit subsequent offences.
The changes made record suspension wait times both longer and more expensive. Summary offences had their wait time increased from three years to five. Indictable offences had the waiting period extend from five years to ten. The cost of applications went up, as did the actual processing time from when an application was submitted to when it was finally approved. Someone with an indictable offence now may need to wait up to 12 years before a record suspension gets approved. The government also changed the name of a pardon to a record suspension, though the affect of the record suspension would be the same as a pardon which means the criminal record is no longer availbable to the public.
The Supreme Court Findings
In April of 2017, it was concluded by Supreme Court Justice Heather MacNaughton that the changes made to the record suspension systems violated the rights of some people with criminal records. The chief reason for this was the government decided that these changes retroactively applied to everyone.
This had very personal, dramatic effects for Ricky Chu, a 42-year-old Canadian who completed time served in prison in 2004 for weapon possession and drug offences. All his sentence commitments expired after 2009, and, under the old system, he expected he could get a record suspension in 2014. However, the 2012 changes applied even to him, and he was told he would be unable to apply for a record suspension until 2019 under the new laws. The case with Justice Heather MacNaughton now means that he can apply for a record suspension under the old, pre-2012 timeline, not the current one.
At the heart of this argument is a difference in perception. Some believe that the increased waiting times and added expenses are merely a change in administration, and nothing more. Others argue that forcing people to live with criminal records longer than necessary actually extends punishment, and has ramifications far beyond just bureaucratic differences in processing times.
Now that the BC courts have rendered their judgement, it calls for a re-examination of the system. The Supreme Court in Ontario is wrestling with similar issues of people being caught “in the middle” of a system that is altering the timeline for when they can expect to apply for their own record suspensions.
This may signal a re-evaluation into how these cases are handled, though it may still be some time before the current Canadian government turns its eye to the situation and decides to completely overhaul the old law, allowing for pardons and record suspensions to be applied for in a three and five year eligibility timeframe.