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The collateral consequences of criminal convictions

CBA releases updated guide for lawyers.


The Canadian Bar Association has released an updated version of its guide to collateral consequences for criminal convictions, which outlines the many ways a criminal conviction can impact a person's life and the possibility of jail time. 

Tony Paisana, a partner at Peck and Company in Vancouver and co-author of the report, says the guide serves as both a manual for the accused and a tool for their lawyers to thoroughly consider all potential repercussions of a conviction on their clients.

"Today, more than ever before, collateral consequences are becoming a regular feature of sentencing for a number of reasons," Paisana says. "One is the ubiquitous nature of criminal record checks and the ability to access that information by potential employers or volunteer leaders. Secondly, because of how severe the consequences have become over the past several decades, be it in the realm of immigration consequences, access to being able to work in the securities markets, or being a foster parent."

Criminal convictions have taken on a much greater significance than they once did, says Paisana. Defense lawyers need to know their broader implications, for example, in various professional or other regulatory contexts. A case in point is the matter of Joseph Power, which will be heard by the Supreme Court this month. Power had a criminal record on two sexual assault charges, and when his employer found out about them, it suspended him. He eventually lost his job and became ineligible for membership with provincial bodies governing his field of employment.

The CBA guidance documents allow an accused layperson to understand their jeopardy if they take a plea deal, says Paisano.

Amid the rising call for tough-on-crime policies, Paisana says that not everyone recognizes the broader consequences of criminal convictions that extend beyond the sentencing that gets most of the attention.

When people think about the severity of a penalty, they rarely consider the myriad of other consequences for an individual, as the media seldom reports on these. "For example, they might hear that someone gets a six-month jail sentence and thinking that it's low, not realizing that it's probably because the person is a permanent resident and if they get nine months, they're going to be automatically deported with no right of appeal. To account for that disproportionate collateral consequence, the judge has reduced the sentence to three months."

Paisana adds that the guide is an effective public education tool highlighting that a criminal conviction is more than just an entry on a record and a penalty -- be it a number of days in custody or a fine.

Paisana hopes the document will influence and reshape the discourse on the criminal justice system. "There are those political actors who aim to politicize the criminal justice system and, in particular, sentencing," he says. "And they conveniently leave out these collateral consequences that explain why we have a more flexible justice system that accounts for all of these circumstances in sentencing. That is particularly around the debate over things like conditional sentences."

In some cases, the collateral consequences may be so severe that a sentence becomes disproportionate -- so much so that the Crown may decide it's not in the public interest to prosecute a crime and suggest dealing with the offender with alternative measures.

There's also the possibility the offender gets sued for the same action that led to the conviction. A conviction or a guilty plea on the criminal standard will cause an almost insurmountable barrier to defending oneself in a civil case.

"The standard of proof is much higher in criminal law, and there is a whole doctrine of abuse of process that is concerned with this concept of double-litigation—the idea that if you are convicted under the higher standard, how can you possibly defend yourself in a civil suit?" Paisana says. "That is a collateral consequence, and it is front of mind for some people going through this process."

The CBA has been active in advocating for limits to the overuse of criminal record checks, particularly for non-conviction police records, says Paisana.

"There is a completely different landscape today compared to the past about what dealing with the criminal justice system means to your daily life going forward," Paisana says. "We have to be cognizant of those sorts of systemic issues because the ones that are being disproportionately felt by marginalized communities."

Independent Senator Kim Pate, who previously served as the executive director of the Federation of Elizabeth Fry Societies, says that providing this kind of information to lawyers is essential. 

"I hope they, in turn, read, understand and provide such information to clients," Pate said in an emailed reply. "My worry, however, is that even if these details are known, there are so many other issues that impact how and why people make decisions, especially when it comes to sentencing and plea bargaining."

Pate adds that in addition to ensuring that lawyers are aware of the consequences of criminal records when it comes to immigration, employment, housing, education, and even long-term care, she also hopes for more advocacy on other reforms, such as the automatic expiry of criminal records and the setting aside of mandatory minimum sentences.