Criminal Records in Canada (Part 14): Proposed Changes to the Criminal Records Act…

Criminal Records in Canada

Remember: if you are looking for a pardon or record suspension, try a Canadian Pardon | Record Suspension Service.

So today, Canada’s Public Safety Minister Vic Toews and Senator Pierre-Hugues Boisvenu announced legislation to change our Criminal Records Act. These are just PROPOSED changes and it may take a few months (if not longer) before they become law. You can see my previous post here about how quickly and easily it would be to make changes to the Criminal Records Act.

It was my intention to go through some of these proposed amendments and offer my two cents. Unfortunately, I haven’t been able to see Bill C-23 Eliminating Pardons for Serious Crimes Act, so I’m basing my research and analysis on what the Public Safety Canada website said today. Once the legislation becomes available online, I’ll have a better idea of how the proposed changes would work. With that little caveat in mind, on with the show…

For starters, the Government is proposing to eliminate the “pardon” system and replace it with a “record suspension” system. What’s the difference you ask? This may simply be political posturing. A “pardon” implies forgiveness or mercy; a “record suspension” does not. It seems like the government doesn’t want to appear to be in the business or forgiving people:

“The current system of pardons implies that what the person did is somehow okay, or is forgiven, or that the harm done has somehow disappeared,” said Minister Toews. “Our government disagrees, and is on the side of victims. That is why we are taking action to replace the current system and eliminate pardons for serious crimes.”

Source: Public Safety Canada website.

But other than a name change, what is the EFFECT of receiving a “record suspension” instead of a “pardon“? I’ve reviewed the government’s proposed amendments but haven’t come across any difference in the EFFECT of getting a record suspension (although there are difference in how to get a record suspension vs. how to get a pardon). So getting a “record suspension” may have the same effect as getting a pardon: 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.

So the first change is simply a name change (as far as I can tell).

What else are they proposing?

Well, as it stands, the National Parole Board has no discretion when it comes to granting pardons for summary conviction offences (less serious crimes). So long as the applicant was of good conduct and not convicted of an offence under an Act of Parliament for the previous 3 years (after completing their sentence), then the National Parole Board MUST give them a pardon. It’s unclear whether the proposed changes would change that practice. The Public Safety Canada website says that the National Parole Board MAY order a record suspension if satisfied that the applicant was of good conduct and did not re-offend during the past 5 years (a change in the waiting period is discussed below), but where is the REAL DISCRETION here? The website doesn’t mention any test or factors (as it does for the ordering of a record suspension for indictable offences). So overall, this looks a lot like what the National Parole Board was previously doing: issuing pardons so long as the basic requirements were met. There was no discretion to deny them, and it doesn’t appear as though there will be with the proposed amendments. Maybe the Public Safety Canada website made a mistake by using the word “MAY” without giving us anything more. I’ll need to wait for the legislation to become available to see if the National Parole Board actually HAS some discretion in deciding whether to order a record suspension for these less serious crimes.

OK, so far, we’ve tackled 2 changes that may or may not actually do anything substantive. But what about the real “meat and potato” changes? Well, there are a few of these worth discussing.

First, applicants seeking a “record suspension” will need to wait longer periods before they can apply. As mentioned above, applicants would need to wait 5 years after completing their sentence for summary conviction offences (less serious crimes). This is up from 3 years at present. Furthermore, those applicants who were convicted of and completed their sentence for indictable offences (more serious crimes) would need to wait 10 years before applying. This is up from 5 years at present.

At this point, 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. These are just my two cents at this moment…

Another major amendment would make it virtually impossible for anyone convicted of a sexual offence to get a record suspension. Specifically, to be granted a record suspension:

“the applicant must not have been convicted of an offence involving sexual activity relating to a minor – as set out in a schedule of specified offences – unless the applicant can demonstrate s/he was “close in age” and that the offence did not involve a position of trust/authority, bodily harm or threat of violence/intimidation”

Source: Public Safety Canada website.

Then there’s an amendment which would make it impossible for those convicted of more than three (3) indictable offences to receive a record suspension.

Moving on, the National Parole Board will have discretion when it comes to ordering a record suspension for applicants convicted of an indictable offence. Before, when it came to indictable offences (the more serious kind – particularly involving sexual offences), the National Parole Board’s arms were tied when it came to granting pardons. So long as the applicant had a clean record (was of good conduct and hadn’t re-offended within the past 5 years), the National Parole Board could do little other than grant that person a pardon. Indeed, if it did anything else, it would be acting outside of its legislative scope and could end up in hot water.

The proposed amendments would give the National Parole Board what it needed all along: real and meaningful discretion. Specifically, the proposed amendments would give the National Parole Board the power to order a record suspension if it were satisfied that:

  • ordering the record suspension would provide a measurable benefit to the applicant; would sustain his or her rehabilitation in society as a law-abiding citizen and would not bring the administration of justice into disrepute.
  • The onus is on the applicant to satisfy the NPB that a record suspension would provide a measurable benefit to themselves and sustain their rehabilitation as a law-abiding citizen.

In determining whether the ordering of a record suspension would bring the administration of justice into disrepute, the National Parole Board may consider:

  • the nature, gravity, and duration of the offence;
  • the circumstances surrounding the commission of the offence; and
  • information relating to the applicant’s criminal history.

Well, I’m glad to see that some of my previous recommendations are being proposed. In a previous blog, I wrote:

A clause could be inserted into the Criminal Records Act saying that the National Parole Board MUST consider these factors when deciding whether to grant a pardon for certain applicants.

The overall test could, for example, focus on the pardon applicant’s present risk of re-offending and relevant criteria could include: (1) the applicant’s criminal record, (2) psychiatric reports about the applicant, (3) victim impact statements, (4) character reference statements, (5) general statistics about the propensity of those who commit certain crimes to re-offender, (6) the nature or type of offence(s) committed, etc. I’m just giving you an idea of what the National Parole Board could consider.

These criteria could be developed by the National Parole Board, the Minister of Public Safety, etc. in conjunction with experts, the public, and others. It may not really matter WHO comes up with the criteria, so long as they are generally agreed upon and published somewhere for public scrutiny. These criteria may also need to be updated from time to time; to require amendments to the Act may take too long, so we can get around that by inserting a section in the Act that says the Minister of Public Safety can make regulations concerning the criteria which the National Parole Board must follow.

It’s worth mentioning that, even if the Public Safety Minister creates the criteria (e.g. through regulations to the Criminal Records Act), the National Parole Board would still be an independent government agency capable of making decisions without that Minister’s influence.

Finally, the legislation would also require the National Parole Board to submit reports to the Minister of Public Safety with the following information:

  • the number of applications for record suspensions made for both summary conviction and indictable offences;
  • the number of record suspensions ordered and the number of record suspensions refused in respect of both summary conviction and indictable offences;
  • the number of record suspensions ordered, indexed by the offence to which they relate and the province of residence of the applicant; and
  • any other information the Minister may require.

So those are my thoughts for now…stay tuned when I actually get my hands on the actual Bill C-23.

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