There are many Canadians who are concerned about the potential changes that are being proposed to the Pardon process in Canada with the introduction of Bill C-23.
We found the following blog by Michael Carabash of Dynamic Lawyers to be very insightful regarding the proposed legislation:
Following up on my last blog, where I talked about certain proposed amendments to the Criminal Records Act (as discussed in the Public Safety Canada’s website), I have now had the opportunity to look at the actual text of Bill C-23, Eliminating Pardons for Serious Crimes Act. So now I’ll offer my two cents again in light of what the proposed legislation actually says (instead of what the government website says). Now I won’t be going through all of the changes – just the more significant ones.
Long Title of Act
The Long Title of the Act changed from “providing relief” to “suspending records”. As previously discussed, this is part of the government’s stance of not wanting to be in the business of “pardoning”, “forgiving”, or otherwise “relieving” those who have been convicted of criminal records.
Effect of Record Suspension
So my initial thoughts were correct: the effect of a record suspension is more or less the same as a pardon. So getting a record suspension means that criminal records held in the RCMP’s Identification data banks (which are supported by fingerprint information) are hidden from view. Specifically, pardoned criminal records are kept separate and apart from other criminal records so that the prying eyes of employers, volunteer organizations, immigration officials, police, courts, U.S. border agents, and others generally can’t see them.
Restrictions on Application for Record Suspension
Here’s the amendment I’m having difficulty with. The proposed section 4 says that a person will only be eligible for a record suspension after they have served their sentence: 10 years for indictable offences (more serious crimes) up from 5 years, and 5 years for summary conviction offences (less serious crimes) up from 3 years.
I’m actually inclined to question the government’s motives of wanting to make applicants wait longer before applying for a record suspension. Sure, it makes the government look good (“tough on crime”) by extending the waiting period. But why else should we agree to it? Does the government know something that we don’t? Are there reports or statistics showing that way more time is needed for rehabilitation? If, based on the current waiting periods, over 96% of those who have received pardons (approximately 400,000 since the pardon system started) have kept them, that what problem are we trying to fix by making people wait longer? In fact, unless there is proof to the contrary, making people wait longer actually prevents them from living fuller lives earlier. Remember: there are approximately 3.4-million records in the RCMP’s Identification data bank and many of them are eligible for a pardon. Not having a pardon means that they expose themselves to discrimination AFTER they’ve done their sentence. This is strictly prohibited by the Charter of Rights and Freedoms: section 11(h) says that once you’ve been convicted and punished for a crime, you’re not to be tried or punished for it again. But those with criminal records are constantly being punished – for example, when they try to go to the U.S. on a family vacation, apply for a job, adopt a child, volunteer, immigrate to Canada, etc. Many of these people aren’t hard-wired criminals; they are generally law-abiding and tax paying citizens who were deviant in their younger years. I just don’t see the reason why the government wants to extend the timeline for applying; doing so could cause more harm than good.
This proposed section makes it extremely difficult for anyone convicted of an offence of a sexual nature to be eligible for a record suspension. The sexual offences are listed in Schedule 1. The only way a person convicted of one of these offences can still get a record suspension is if: (1) the person was NOT in a position of trust or authority towards the victim and the victim was not in a relationship of dependency with him or her, (2) the person didn’t use, threaten to use, or attempt to use violence, intimidation or coercion in relation to the victim, AND (3) the person was less than 5 years older than the victim. The person has the BURDEN of proving these 3 conditions to the Board’s satisfaction.
Convicted of 3 Indictable Offences
A person will be ineligible to apply for a pardon if they were convicted of more than 3 indictable offences.
This proposed section gives the Board the power to suspend the applicant’s criminal record if it is satisfied that: (1) the applicant has been of good conduct during the relevant waiting period (i.e. 10 years or 5 years, depending on the seriousness of the offence) and not convicted of an offence under any Act of Parliament AND (2) for indictable offences, ordering the record suspension would: (i) provide a measurable benefit to the applicant, (ii) sustain the applicant’s rehabilitation in society as a law-abiding citizen, and (iii) would not bring the administration of justice into disrepute. The onus is on the applicant to demonstrate the first two things, but no the last one.
Factors which the Board MAY consider
OK, so finally the Board may consider a whole slew of factors when determining whether to order a record suspension. Recall that this is what I had previously recommended. Among other factors (which may be prescribed by the Public Safety Minister by regulation), the Board may consider:
(a) the nature, gravity and duration of the offence;
(b) the circumstances surrounding the commission of the offence;
(c) information relating to the applicant’s criminal history and, in the case of a service offence, to any service offence history of the applicant that is relevant to the application.
What’s new hear is the Board’s ability to make inquiries, with respect to applicants convicted of indictable offences, into ANY FACTORS that the Board MAY consider in determining whether ordering the record suspension would bring the administration of justice into disrepute.
Disclosure of Decisions
The Board may now disclose decisions to order or refuse to order record suspensions. However, it may not disclose information that would reasonably be expected to identify an individual (unless that person consents).
There are more changes to the Act, but these are by far the most sweeping…
If these changes actually become law, I might have to change what I’ve already written about the pardon system in my forthcoming book, “Erase Your Criminal Record”.
If you have any questions regarding this topic or about Pardons and US Entry Waivers email us at [email protected] or call 1-877-929-6011.