The Power of Perspectives

The Canadian Bar Association

Kim Covert

Clearing the record: Suggestions for the pardons process

January 11 2017 11 January 2017

At what point does the justice system become unjust to the estimated one in 10 Canadians with a criminal record?

Depending on whom you talk to, a person could likely find injustices throughout – prolonged detention, delays in proceedings, inadequate legal aid funding and prison overcrowding are just some of the ways the justice system works against the people caught up in it.

A person who has served his or her time and been released back into the community can find it difficult to get out from under the stigma of that conviction – in fact, even people who’ve had charges against them stayed can still be negatively affected by their brush with the system.

In August, CBA Council passed a resolution urging the federal government to make changes to the current pardons process.

In December, the Criminal Justice Section wrote to the director of the Corrections and Criminal Justice Division of Public Safety Canada to reiterate its call for reform of the process saying that pardons are an essential part of Canada’s long-standing rehabilitation and reintegration policy.

“Far from being a ‘privilege’ bestowed upon the individual by a benevolent state, pardons were introduced as a necessary part of remedying the injustice caused by retaining criminal records forever,” the letter says, quoting a factum from Peck & Co. presented in R. v Chu at B.C. Superior Court.

Noting that there have been a number of reforms since 2013, the letter says at “at a minimum” the process should be returned to its pre-2013 status, with the new term “record suspension” being abandoned and the word “pardon” being reinstated.

“There is also a societal interest in granting pardons after offenders have paid their debt to society where those offenders have demonstrated they will not reoffend. Imposing unnecessary impediments to full reintegration into society can mean handicaps in obtaining employment, housing and other services. In contrast, granting a pardon can mean a fresh start to the offender and may provide an incentive to avoid returning to the stigma of having a criminal record.”

The letter notes that fees associated with applying for a pardon have risen 421 per cent since 2013, creating an access to justice deficit – the poorest offenders, the ones most likely to need a pardon to find a job and fully reintegrate into society, are also now the least likely to be able to afford it. “If they have no chance of obtaining employment, they have no incentive to go back to school, upgrade skills, become better citizens, or pay more taxes in higher-paying jobs,” the letter says, recommending that the fees be eliminated or significantly reduced, and wait periods returned to pre-2013 levels of between three and five years.

The Section says it would support a policy of automatic pardons, without application or fee, for anyone who does not reoffend within a certain period of time, or where the underlying offence has become legal in the interim, as the U.K. has been doing successfully since 1974. “This regime could be suitable for people convicted of summary offences, recipients of suspended sentences, or persons convicted of minor crimes or crimes that are no longer illegal, which will soon include possession of marijuana, for example.”

The practice of keeping records on people who may have been the subject of police contact without ever having been charged could amount to a Charter violation, the letter suggests, recommending that records kept for anything short of a conviction should be automatically expunged after a specific period of time. “A ‘fingerprint’ can be created from investigations, charges, withdrawals and other practices not resulting in convictions,” the letter says. “The subject of what, if any, non-conviction information should be disclosed by police is a matter deserving of further consideration by Parliament.”

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