The case for automatic pardons

The question of how long criminal records should affect someone's life is the subject of both a bill currently before the Senate and a case granted leave by the Supreme Court of Canada. 

Bill S-212 proposes to create automatic expiries of most criminal records, with some exceptions, so that people involved in the criminal justice system don't need to apply for pardons or records suspensions. 

That would simplify the process and make it more accessible and less costly for people with limited finances or literacy issues, says Senator Kim Pate, the bill's sponsor and a former executive director of the Canadian Association of Elizabeth Fry Societies. 

It would cut out certain entities that have been exposed for predatory practices in assisting people in obtaining pardons. The bill would apply to most types of records in the Canadian Police Information Centre (CPIC) system.

Earlier in March, the Supreme Court of Canada granted leave in the case of Joseph Power, who lost his job as an X-ray technician after an anonymous person alerted his employer to his past record. He hadn't applied for a pardon and was no longer eligible due to changes to the law adopted under the Harper government. 

The Supreme Court is now deciding whether the Crown, in its executive capacity, can be held liable for damages for both drafting an unconstitutional bill and for Parliament passing it, only for it to be declared invalid. Pate notes that Power’s inability to get a pardon, two years after he had been eligible to apply, was unfair and contrary to the goal of getting people training so they can contribute to society and the economy.

Tony Paisana, past chair of the CBA’s Criminal Justice Section, says the bigger public policy question is whether the continued use of historical criminal convictions achieves a public good that outweighs the obvious prejudice that might exist in the use of those records.

“Here you have an individual that had been convicted something in the order of 15 or 20 years earlier, and he is losing his job because he can’t get a record suspension for something that was that old,” Paisana says. “Some people say that’s just desserts; you make your bed and lie in it; other people are of the view that rehabilitation can only be achieved once you no longer have a criminal record, because of the ongoing stigma."

Pate stresses that the public consultations conducted by the Parole Board show support for helping people get on with their lives once they have paid their debt to society. Sheila Wildeman, a professor at the Schulich School of Law at Dalhousie University, also cites a 2022 study from Public Safety Canada, which indicates support for law reform in the area. 

She says we mustn't stop short of extending automatic expiries to more serious offences. It's up to the state to demonstrate that it is reasonable to require that a criminal record be accessible indefinitely, as a risk mitigation measure, in light of the harm it causes to individuals and disproportionately incarcerated communities, Wildeman says. “There is a plausible causal effect between the indeterminate extension of a criminal record and the likelihood that a person will be forced into continued patterns of criminalization and even offending because of exclusion from the kinds of social supports that make one more resilient and more resistant to criminalization and incarceration.” 

Wildeman adds that an indeterminate record could also contravene the Charter right not to be subjected to double punishment. 

According to Wildeman, several U.S. states have enacted clean-slate laws that feature automatic record expiry. Empirical evidence suggests that these expungement measures have effectively reduced crime rates. Wildeman also notes that the current pardon system imposes bureaucratic burdens that discourage individuals from applying, leading some to internalize criminalization. 

What's more, non-payment of fines should not be a barrier to automatic records suspension, as evidence shows they disproportionately affect marginalized groups and hinder equitable engagement in employment, housing, and other social goods. She suggests instead implementing better systems of notification.

While some police chiefs have pushed back against S-212, citing investigative purposes, Pate suggests that relatively easy amendments could be made to the bill, similar to provisions included in the Youth Criminal Justice Act. The John Howard Society has suggested some wording around such amendments, which the committee is examining.

Paisana says that until records that are no longer relevant are expunged, individuals cannot fully rehabilitate or integrate into society, given the ongoing stigma associated with criminal records. 

He also suggests expanding the scope of records to include non-conviction information, which he argued for on behalf of the CBA's Criminal Justice Section to the Senate’s legal and constitutional affairs committee on Bill S-212. Non-conviction information can be exceptionally prejudicial and is irrelevant to criminal records checks, he says. 

"If it shows up on a criminal record check that you were suspected or drug activity or some crime as supposed to being convicted, it doesn’t matter to most people,” Paisana says. “It has the same stigma associated with it.”

Ontario has taken steps to address this issue, but many provinces and the federal government have not. He is calling for legislative action to address this issue, which he says flies in the face of the presumption of innocence.

For her part, Pate hopes that the bill can be completed in committee before the summer recess. She notes that several MPs have expressed interest in sponsoring the bill when it reaches the House of Commons. Pate is willing to withdraw her bill if the government moves ahead with its own legislation.