Trying to get rid of a criminal record is further punishment: why the records suspension regime needs to be entirely overhauled

Overview

In this post, I will argue that the process of trying to have a criminal record removed is fundamentally flawed and should be considered unlawful. I am not going to put any time into the subject of cannabis possession records possibly being suspended or pardoned without a fee. There has already been substantial attention on this issue, but it is a drop in an otherwise empty bucket. I will will draw attention to the rest of the bucket.

I say the entire regime of trying to get rid of a criminal record is flawed because the process punishes those with criminal records through fees – that are better described as fines – and scrutinizes those with criminal records for new charges even when they did not result in a conviction.

Removal of a criminal record used to be called a “pardon”, but since the former Harper Government’s Safe Streets and Communities Act of 2012, it is now called a “record suspension”. The distinction is significant. A pardon is supposed to mean that the ordeal is over. A suspension means that it continues to hang over a person’s head and can be brought back, which is made clear in section 7 of the Criminal Records Act. This change points out more clearly that one is not supposed to be able to just get rid of a criminal record in the present order.

 

Why is a criminal record part of the sentence?

When does a person’s sentence for a conviction end? You would think that it is at the time that the person completed their actual sentence, which may include jail and a period of probation. In actuality, a criminal record itself acts as an extension of a sentence. As stated by Canadian lawyers Robert Israel and Christine Mainville in a January 2018 contribution to the Globe and Mail:

In our Orwellian world, with damaging personal information merely a click away, a criminal conviction alone can easily become the most debilitating part of a person’s sentence. And so, for many offenders, the ability to eventually obtain a pardon is critical.

Theoretically, once there has been accountability for the crime through a sentence, the punishment is supposed to end. It does not. Criminal records often prevent convicted people from obtaining gainful employment and obtaining housing. It also results in the inability to travel to the United States and other countries. People with criminal records are also often prevented from volunteering in the community, as coaches or in other situations where a criminal record check is done. A criminal record is supposed to be a burden that hangs over a person’s head after a criminal sentence is complete.

 

The process of removing a criminal record

Criminal Records are legislated under the Criminal Records Act. Under this Act, a person with a criminal record needs to meet the following eligibility criteria to remove the record (I’m leaving out the part on “service offences” while in Service of Her Majesty the Queen):

4 (1) A person is ineligible to apply for a record suspension until the following period has elapsed after the expiration according to law of any sentence, including a sentence of imprisonment, a period of probation and the payment of any fine, imposed for an offence:

(a) 10 years, in the case of an offence that is prosecuted by indictment … or

(b) five years, in the case of an offence that is punishable on summary conviction …

(…)

4.1 (1) The Board may order that an applicant’s record in respect of an offence be suspended if the Board is satisfied that

(a) the applicant, during the applicable period referred to in subsection 4(1), has been of good conduct and has not been convicted of an offence under an Act of Parliament; and

(b) in the case of an offence referred to in paragraph 4(1)(a), ordering the record suspension at that time 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.

For those who may not be familiar with the criminal law terminology in this section, a “summary” offence is considered less serious and there is generally little to no risk of jail time, especially for a first-time offender. An indictable offence is considered much more serious and often carries a risk of many months or years in jail (such as robbery, murder, aggravated sexual assault and various firearms offences).

Five years and ten years are already long periods to wait. But the waiting time is actually significantly longer than that. The period does not begin until after the sentence was completed. This means that the clock only starts running after any jail, probation or fine has been completed.

Take an example. Let’s say a person was convicted today of an indictable theft offence, where property worth $10,000 was stolen as part of a break, enter and theft. In this example, the person was convicted and sentenced to a one-year jail term followed by another year of probation. This person ends up waiting 12 years after the conviction before a record suspension is even possible. But the story does not end there. Record suspensions are not automatically awarded. They require a paid application and meeting some very discretionary – and improper in my opinion – standards.

There is no real explanation of “good conduct” under the Act, but I will get into what this means in the next section. As for the “measurable benefit”, those with criminal records of indictable offences also must show how removal of the record would be a of benefit to them and good for society as well. What this translates into is people having to explain opportunities that have been denied due to the record – such as better jobs or any job at all – and how such opportunities would be pursued if the record was removed. There also must be an explanation about how a record suspension is justifiable in their case because they are good examples for society, of the redeemed ones among an otherwise bad lot. The onus is on the applicants to show that they are deserving.

 

Pay the fees and “be good” and a record suspension may be in your future

In order to obtain a record suspension, a person has to pay an application “fee” and convince members of the Parole Board of Canada that they are worthy. See the many steps here.

The application fee is $631. This amount will not be affordable and often impossible for those with criminal records. Those with criminal records will not likely be able to obtain employment which offers enough disposable income for such a huge fee. In my opinion, this is not a fee, but a fine. The distinction is important. A fee is a cost for a service. A fine is punitive. In 2012, the Harper Conservatives increased the amount required for a “pardon” (as it then was) from $150 to the new amount of $631.

There were not suddenly 4-times as many people applying for record suspensions, thus requiring 4-times as many resources. The number of people convicted did not grow four-fold, nor at all for that matter. The enormous increase was part of the former federal government’s “tough on crime” agenda. The amount was designed to make life tougher for those with convictions. In other words, it was a punishment. Because the fines have been re-punishing people for offences for which they were already convicted, these fines ought to be seen a contrary to the Canadian Charter of Rights and Freedoms, section 11(h) (emphasis added):

11. Any person charged with an offence has the right

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again.

Another enormous hurdle is the requirement for “good conduct”. The Parole Board of Canada makes decisions on applications for record suspensions. They are guided by the Decision Making Policy Manual for Board Members . I find there to be a problematic and unconstitutional set of directions in the manual, including the following (Part 13.1 of the Manual)(emphasis added):

Decision-Making Criteria and Process

10. When making a decision on a pardon or a record suspension application, Board members will assess whether the applicant has been of good conduct. For applications that involve offences that fall under paragraph 4(a) of the CRA as it read on or after June 29, 2010 and before March 13, 2012, or under paragraph 4(1)(a) of the current CRA, Board members will also assess whether the pardon or record suspension would provide a measurable benefit to the applicant, would sustain the applicant’s rehabilitation into society, and would not bring the administration of justice into disrepute.

Conduct

11. For the purpose of the CRA as it read on or after June 29, 2010 and before March 13, 2012, as well as the current CRA, good conduct is considered behaviour that is consistent with and demonstrates a law-abiding lifestyle.

12. In assessing conduct, the Board is not subject to the same standards as a criminal court. The presumption of innocence and the relating rights are not applicable in the context of a pardon or a record suspension application.

13. The type of information and documentation that may be considered includes:

(a) information from the police about a non law-abiding behaviour that did not result in a charge;

(b)information about an incident that resulted in a charge that was subsequently withdrawn, stayed, or dismissed, or that resulted in a peace bond or acquittal, especially where the charge or charges are of a serious nature, and/or are related to convictions on the record for which the pardon or the record suspension is requested;

(…)

When I first saw these decision-making directions, I had to double check that I was not reading something before the Canadian Charter of Rights and Freedoms. I was not. The decision-maker’s manual is current and is still applicable. The edition of the manual I cited is from April 4, 2018.

There are a number of directions in the manual that disregard rights in the Charter in my opinion. Section 12 in the record suspensions part of the manual states: “The presumption of innocence and the relating rights are not applicable in the context of a pardon or a record suspension application.”

The Charter says the following about the presumption of innocence:

11. Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

Section 13 of the manual’s section on record suspensions states that “non-law-abiding behaviour” that did “not result in a charge” or charges that were later “withdrawn, stayed or dismissed, or that resulted in a peace bond or acquittal” could still be used to counter a person’s good character. This is incredibly problematic because the effect of this is that unproven allegations are used to extend a sentence. The presumption of innocence is replaced by a presumption of guilt for those once convicted, and the presumption is not even defeated by an acquittal or withdrawal of the charge(s)

People are regularly denied record suspensions based on new charges that were never proven (no conviction). The result is that the unforgiven person remains tied down by the criminal record and is stuck in a life of poverty and negative stigma.

A government decision which results in an unjustified infringement of a person’s security of the person should be contrary to section 7 of the Charter:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Security of the person was defined in New Brunswick (Minister of Health & Community Services) v. G. (J.), [1999] 3 S.C.R. 46 (S.C.C.), at para. 60:

The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety.

A criminal record or any criminal history that can impact on a person’s ability to fully participate in society has a serious psychological impact, which is by design.

This record suspension regime particularly affects those communities who are regularly targeted by police: people with any criminal history in Black, Indigenous and poor communities in general are often charged or at least investigated by police when there is a crime reported in the neighbourhood. Even when someone is investigated as a suspect, the fact that the police spoke to a person as a suspect, without a charge being laid, is likely “non-law-abiding” behaviour.

The stigmatizing, intentionally negative psychological impact, and life impacting effects of a criminal record have been well recognized in Canadian law. In the Ontario case of J.N. v. Durham Regional Police Service, (2011 ONSC 2892), the court stated (emphasis added):

[127] … to many people, our work and our chosen career is a primary source of our own self-worth and, in fact, is considered a major component of one’s own value as an individual. Many people choose as a goal a certain career; as in the present case, they train for it and can find it devastating when, despite their best efforts, they cannot obtain employment in that field. … in the present case, the inability to obtain work is not connected with the job market or inability to perform, but rather with a withdrawn criminal charge and blemished CIR …

[128] Accordingly, if J.N. is unable to ever be able to obtain employment in her chosen field and is forced to work in unrelated fields of work or rely on public assistance, it can be easily understood to cause serious psychological impact on the applicant. When this results from something arising from your reputation or the stigma attached to criminal charges, this impact would only become more severe. On an objective basis, then, I am able to find that the applicant’s inability to obtain employment resulting from her inability to clear the CIR is, objectively, something which would cause serious psychological impact. This accordingly is something that can affect the security of the person within the meaning of s. 7 of the Charter.

In the Supreme Court of Canada case of R. v. Malmo-Levine (2003 SCC 7), the intentionally stigmatizing and punitive effects of criminal records was noted:

[172] … There is no doubt that having a criminal record has serious consequences. The legislative policy embodied in the [Narcotics Control Act] is that a conviction for the possession of marihuana should have serious consequences. Therein lies the deterrent effect of the prohibition. The wisdom of this policy is, as mentioned, under review by Parliament. It appears that this review has been prompted, in part, by a recognition of the significant effects of being involved in the criminal justice system. For instance, background information from Health Canada states:

[B]eing prosecuted and convicted in a criminal court bears a stigma that can have far-reaching consequences in an individual’s life in such areas as job choices, travel and education. Participating in the criminal court process can also involve personal upheaval.

(Health Canada, “Information: Cannabis Reform Bill”, May 2003)

While courts have very clearly stated that a criminal record has a negative impact on a person’s psychological integrity, they have (so far) not found breaches of security of the person if a person simply has to apply for a record suspension. The existence of a process has been considered fair (See for example: Chu v. Canada (Attorney General), 2017 BCSC 630)

However, being denied a record suspension based on unproven charges, and having the criminal record hang over a person’s head, is something beyond a simple waiting period and going through a process. Such a denial ought to be considered arbitrary and not in accordance with the principles of fundamental justice.

 

Federal Government has claimed they aim to address the injustice but have not

The injustice of the fee was addressed, along with a number of other problems, in consultations with Public Safety Canada in 2016, and a report released in 2017. Among the findings was a staggering drop in record suspension applications. 2011/12 there were 29,829 pardon applications, but the number dropped massively to 12,743 records suspension applications by 2016. The reasons for the drop are those mentioned above: the fines (or “fees” as is wrongly portrayed) and the increased waiting times were particularly emphasized.

Public Safety Minister Ralph Goodale vowed to to overhaul the record suspension regime, removing the punitive elements. Nothing has happened so far.

Now that some attention has been focused on the issue of wiping records for pot convictions, it is time to focus on the bigger picture of injustice. Enough people have been struggling through poverty needlessly, and unlawfully in my view, due to criminal records for offences that occurred many years ago and due to failure to be deemed good and worthy by the Parole Board.

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