Canadian Pardons

After having had his minority government overturned by a vote of no confidence, Prime Minister Stephen Harper has triumphed in the ensuing election, with his first majority in Parliament. Canadians can now expect that Harper will be able to follow through on the promises he made. This directly concerns Bill C-23B, which we have extensively discussed. Although this specific bill died together with all other outstanding legislation when Parliament was dissolved in March, Harper has promised to put all crime-related bills that he has not succeeded in passing so far into one bill, and to have it passed within 100 days of the new Parliament convening. This is set to take place in a few weeks, and with a Conservative majority, passage of the crime bill is a foregone conclusion. While there might be amendments along the road, we can expect that the substance of the bill will not change much.

Let us therefore briefly review what the Government wishes to do. Officially, pardons are to be replaced with what the conservatives are referring to as “record suspensions”. A record suspension will work within the framework of existing pardon legislation and will serve the same purpose – to seal a criminal record. But getting it will be more difficult. Specifically:

• The ineligibility period will be lengthened to 5 years after completing your sentence for summary offences, up from the current 3, and from 5 to 10 years for all indictable offences.

• Anyone who commits 3 or more indictable offences will not be able to get a record suspension, a particularly severe measure when you consider that one criminal act often involves committing that many specific offences.

• Whereas at present, pardons are always granted when eligibility criteria are met, record suspension applicants will be required to demonstrate that they have been rehabilitated and the Parole Board will have the discretion to deny a record suspension based on more arbitrary criteria relating to how the offence was committed. On top of that, record suspensions will not be available to particularly serious offenders or to anyone who commits a sexual offence against a child.

This literally means that a critical point could come in a matter of months or even weeks. With the Conservatives in majority, it is no longer a question of “if”, but “when” pardons will be transformed into record suspensions. Once this legislation is passed, pardons will take longer to get, will become a much more arbitrary matter, and will be inaccessible to many. Applying for a pardon as soon as you possibly can is now your last chance to do so under the current rules.

Tags: Bill C-23, canadian pardon process, canadian pardons, pardon, Pardons, record suspensions, Stephen Harper

At last report, Bill C-23B, the proposed law which was set to rename pardons into record suspensions and impose tougher rules on applying for them and on who is eligible to get them, had passed second reading in the House of Commons and was waiting to be considered by a parliamentary committee. Since that time, the political scene in Canada has been shaken up with an early election call. The election is set for 2 May and the different parties are already busy with their campaigns.

Conservative Prime Minister Stephen Harper is hoping for re-election so that he can continue passing legislation in the same vein as that which his government has succeeded in adopting so far. According to an article published in the Toronto Star yesterday, the party plans to formally launch its platform today, but in the past two weeks, Harper has already spoken publicly about the changes his party plans to make if re-elected, which will be laid out in more detail today. Among his promises is that if he is re-elected, all outstanding crime-related bills that have not yet been passed, including Bill C-23B, will be combined into one blanket bill and will be passed within 100 days of re-election.

The election campaign is still young and we cannot be certain of its outcome. The main forerunners are Harper and his Liberal opponent, Michael Ignatieff, who does not agree with all of the conservatives’ measures regarding criminal justice. It could be a tight race, and Canadians need to be prepared for any outcome. A poll released two weeks ago suggests that 43% of Canadians support the Conservative party; if this still holds true come the day of the election, Harper could win a majority government. Should this happen, the Conservatives will take over most of the seats of the House of Commons, and the passage of criminal pardons reform will be a foregone conclusion. All the more reason to apply for a pardon now, before it becomes much harder to get.

Tags: Bill C-23, Canada, Conservatives, criminal pardon, criminal pardons in Canada, pardon, Pardons

Policing is among the more desirable jobs out there – the pay is good, a certain amount of prestige is associated with being a police officer, and it offers a chance to perform a service for the community. The number of applications received by North American police departments every year is staggering; usually, less than 10% of applicants will get hired and in smaller departments, even that is a high figure. Given that it is so difficult to get accepted to a police force, and given that an officer’s job is to uphold the law, does someone who has once been in trouble with the law and has a criminal record stand any chance of being hired by a police department? Common sense would suggest an answer of “probably not” to this question. In theory, however, even a criminal record is not an insurmountable barrier to a police career, provided, of course, that a person has received a pardon.

Once a crime is pardoned, it is removed from the accessible database of the Canadian Police Information Centre (CPIC), the sole authority in Canada for keeping criminal records. While a record of the conviction still exists, it is kept separate and apart from the database used for criminal record checks; therefore, a person requesting a background check will not have a pardoned conviction show up on it (unless a vulnerable sector check is performed, which will reveal a pardoned violent or sexual offence), regardless of whether the check is performed for employment in a police department or a civilian company.

That being said, however, there are theoretically other ways for information on a conviction to reach a police department. If a person applies in the same force that arrested them, they may have access to arrest records or even know the person personally. Additionally, a force could theoretically have an agreement with the Minister of Public Safety to release pardoned criminal records to them, which would override the general rule that a pardoned conviction cannot be disclosed by the CPIC. But if, for example, a person from Vancouver moved to Fredericton and applied for a police job there, there is a better chance that the conviction would not be discovered. Another thing on an applicant’s side is that many provincial human rights codes prohibit discrimination on the basis of a pardoned conviction. In one Quebec case in the 1990s, a woman who had once been found guilty of a petty crime and had received a discharge for it was rejected by the Montreal police department. Although the woman ended up withdrawing her application, the court ruled in her favour on the basis of human rights legislation.

Therefore, a person who regrets their previous mistake and sincerely wishes to give something back to the community through a police career may still be able to do so. Achieving this already difficult goal may be more difficult for such a person, but it is not an impossible one. In any case, though, an essential first step without which nothing can be done is removing criminal record information through a pardon. No police department will hire someone with a live criminal record.

Tags: clear criminal record, pardon, Pardons

The whole purpose of a pardon is to restrict access to a person’s criminal past. As we know, once a pardon is granted for a conviction, it will no longer be disclosed on background checks. The general rule is that the government may not release information on a pardoned conviction, with one limited exception: convictions for a violent sexual or personal injury offence are flagged in the RCMP database and applicants for a background check will be requested to disclose such convictions when applying to work with vulnerable sector people (children, seniors, people with illnesses or special needs). Aside from this, once a pardon is granted, the conviction will not be disclosed on a criminal record check. Presumably, therefore, it is not necessary to disclose a pardoned conviction when applying for a job. Or is this always the case?

Obviously, no one is ever obliged to volunteer information on a past conviction; clearly, when a person has a pardon, if an employer requests a criminal record check, it will come back clean, and the conviction will not come to light through this channel. So let me state a little more precisely what is under scrutiny here. What if a person is directly asked by a prospective employer if they have ever been convicted of a crime? In the interest of honesty, some “experts” would advise admitting that one was convicted of such-and-such an offence, but stating that they have been pardoned. Let us see if this is good advice.

One thing behind the notion that one should disclose a past conviction to an employer when asked about it is the fact that in a number of Canadian provinces, human rights legislation prohibits discrimination based on a pardoned conviction. But while a human rights code may theoretically guarantee protection from discrimination, actually enforcing it can be difficult. An employer may not always respect the letter of the law or even know about it (if the legislation worked perfectly, people approaching retirement age would have 0% fear as regards to their chances of getting a new job, yet it is a known fact that despite age discrimination laws, they are routinely passed over for younger candidates). If a person feels they have been discriminated against, the burden of proof is on them to prove this to a human rights tribunal, a daunting and time-consuming task that most people do not have the luxury of undertaking. As regards ex-convicts, the sad truth is that practically nobody wants to hire them when they can hire someone with a crime-free background. So volunteering this information is like shooting yourself in the foot.

However, the beauty of having a pardon is that formally, one’s clean record is reinstated, and therefore, If one has a pardoned offence, there is no reason to ever have to admit it. First of all, in Ontario at least, most employers who bother to ask about prospective candidates’ criminal past formulate the question as “Have you ever been convicted of a criminal offence for which a pardon has not been granted?” The simple and honest answer to this question for a pardoned individual is “No”. If in the end, someone were to go as far as to ask a person directly if they have ever committed a crime (and they should not), anyone who has obtained a pardon for criminal record offences can truthfully answer: “I have a clean criminal record.” Whatever was the case in the past, at present, the record is officially clean, and nothing beyond that is anybody else’s business.

Tags: clear criminal record, criminal record, criminal record Canada, criminal record check, pardon, Pardons, pardons canada

It may not cross the mind of an average person that they know and associate with someone who has a criminal record. When many people imagine criminals, the kinds of people that usually come to mind are robbers, rapists, gangsters, murderers, and similar offenders, and surely one does not associate with such monsters. But the likelihood of knowing a person with a criminal record in Canada is actually very high: the proportion of Canadians with a criminal record is estimated at 10 to 15%. The possibility of knowing a “criminal” is higher now, isn’t it? The truth is that many criminal offences are of a minor nature, and being convicted of one is relatively easy if one is not careful.

Here are a few situations that can lead to a person getting a conviction and thereby, a criminal record:

• One person insults another in a bar. A verbal altercation ensues, followed by the second person punching the instigator, which ultimately results in assault charges being laid on both of them.

• A 20-year-old man and a 14-year-old teenage girl are mutually attracted to each other. They end up having sex; her parents find out about this, are not happy about it, and press charges against the man for having sex with a person under the age of 16.

• A normally sober person has some alcohol at a party. Driving home, they crash their car into another. The police arrive, administer a breathalyser test, and lay charges for driving under the influence.

• A few joints of marijuana are found in somebody’s possession.

The point is, not all people who possess a criminal record in Canada are of the same ilk as Karla Homolka or Graham James. Many ordinary people have a minor conviction along with a criminal record in Canada to their name. This should serve to demonstrate the gross injustice that would be perpetrated if the government were to succeed in making pardons more difficult to get. Most convictions are for trifling offences that in many cases are relatively easy for an ordinary person to commit. Maintaining a criminal record in Canada for such convictions is not only harsh and counterproductive; it perpetuates the notion that we are a nation of heinous criminals, whereas, in fact, we are not.

Tags: criminal pardons in Canada, criminal record, pardon

Unlike the granting of a Canadian pardon, deciding which applicant will obtain a US entry waiver is a more arbitrary matter. One has to keep in mind that visiting a country other than that of which one is a citizen is always a privilege – even if it has nothing against a person, a foreign state is under no obligation to let them in. As we know, the United States exercises particular discretion regarding who they allow to enter, and routinely turn away at the border people whose name they can match to one in their criminal record database, even if the offence in question was minor and committed a long time ago. It should therefore come as no surprise that the criteria for removing this disability (via a US entry waiver) may be equally stringent. Essentially, the US government wants to be satisfied that the person they are allowing into their country presents only a minimal risk to their population and homeland security.

When considering an application for a US entry waiver, officials will take into account the following factors above all others:

• The reasons why a person wishes to travel. These can generally be summarized under the simple alternatives of business, pleasure, or visiting family. It is important, however, to give specific details about this on one’s application: the degree to which these activities are of significance to the applicant (e.g. cross-border travel being vital to a person’s chosen profession) can influence the final decision.

• The nature and gravity of the offence committed. Obviously, the authorities will be likely to issue a waiver to a person who has only one shoplifting charge to their name, while denying it to a murderer out on parole.

• The risk an applicant presents to homeland security. A person with a history of involvement in a terrorist organization or a person who has not made an effort to lead a settled, honest life after serving their sentence is at a decided disadvantage.

• How long ago the offence was committed. A crime committed when very young will probably be shown more tolerance.

• Finally, the offender’s personal situation. Such factors as having a gravely ill family member on the other side of the border can count in favour of a US entry waiver applicant receiving permission to travel.

Tags: us entry waiver, US Homeland Security, US travel waiver

Today, we will look at a somewhat murky area of Canadian criminal law – conditional and absolute discharges for crimes and their relevance to pardons and US waivers. A “discharge” is an option for leniency available to judges in the case that a person is found guilty of a criminal offence that carries no minimum penalty and a maximum penalty of less than 14 years. In such cases, the judge may grant a discharge, meaning that you are deemed not to have been convicted and will not receive a sentence. Discharges can be “absolute” or “conditional”:

• An absolute discharge is like a “get out of jail free” card. You are let off with no further consequences and will no longer be involved with the justice system.

• A conditional discharge, on the other hand, puts you on probation for a period of up to three years. During that time, you must fulfill certain conditions imposed by the judge; if you fail to do so, or if you reoffend, you can be returned to court, convicted and sentenced for the original crime.

Since a person who has been given a discharge has not been convicted or sentenced, there is a widespread belief that they do not have a criminal record. But this is not quite true. According to the Criminal Records Act, an absolute discharge stays in the Canadian Police Information Centre database for a year, whereas a conditional discharge may be on the record for up to 3 years. That is a relatively short time, and it is therefore not necessary – or even possible – to get a pardon for a discharged conviction. But that’s not the whole story.

In the past, permanent criminal records were kept for discharges, and could be pardoned. Then, on 24 July 1992, the time limits for storing records described above kicked in. If you were granted your discharge after that date, it should not be in the criminal record database after the 1- to 3-year limit ends. If, on the other hand, you were given a discharge before 24 July 1992, the record may still be live; in that case, you may write to the RCMP and request that it be removed from the database.

Besides this, during the 1 to 3 years that the discharge was in the CPIC database, the information may have been shared with the US Department of Homeland Security, in which case it will remain there. It is ironic that a Canadian crime taken off the record in Canada may still be on the record in the USA. This is why, even in the case of a discharge, the only safe way for a convicted Canadian to cross the border is with a US entry waiver.

Tags: canadian pardons, clear criminal record, criminal record, pardon, Pardons, us entry waiver, US Homeland Security, US travel waiver

All Canadian criminal offences can be pardoned except for the few that carry a life or indeterminate sentence. As a rule, a pardoned criminal record will not show up on background checks. There is one exception to this rule, but it is relatively limited in scope.

Criminal records are maintained by the Canadian Police Information Centre (CPIC), an office of the RCMP. A pardoned criminal record is removed from the database that is accessible to criminal record checks. But if you have committed a sex-based offence (sexual assault, possession of child pornography, and so on), your conviction will remain flagged in the database in case you request a “vulnerable sector” background check.

Vulnerable sector checks are performed when you request a background check for the purpose of working with vulnerable persons, which the Criminal Records Act defines as people who “because of age, a disability, or other circumstances, whether temporary or permanent are (a) in a position of dependence on others or (b) are otherwise at a greater risk than the general population of being harmed by a person in a position or authority or trust relative to them”. Thus, a vulnerable sector check is performed mainly when the purpose of a criminal record check is to work with children, ill or disabled people, or senior citizens. The laws of some provinces, such as British Columbia, actually require institutions dealing with vulnerable people (schools, hospices etc) to have background checks done for potential employees or volunteers; even where this is not required by law, you can expect that such institutions will have this requirement.

If you wish to work with vulnerable people and are requested to get a background check done, the CPIC will perform a vulnerable sector check. In plain terms, this means that it will retrieve information on any convictions flagged as sexual, and disclose it on the criminal record check, despite any pardons that were granted. It should be stressed, however, that if you request a background check for a purpose other than working with vulnerable people, the RCMP cannot disclose a pardoned criminal record, even for a sexual conviction. So, if you apply for a job as a camp counsellor, your pardoned sex offence will show up. But if you apply to work in a bank, the information about the conviction will not be revealed.

Tags: criminal record, criminal record check, pardon, Pardons, record check

On 15 February, Parliament passed Bill S-6, the “Serious Time for the Most Serious Crime Act”. The amendment to the Criminal Code is another law in a series of attempts to make Canadian criminal justice tougher and concerns a provision in the Code known as the “faint hope clause”. This clause, specifically Section 745.6 (1) of the Criminal Code, provides that a person convicted of murder or high treason and sentenced to more than 15 years’ imprisonment may apply to the Chief Justice of the province in which they were convicted for early parole. In practice, this means that if, for example, a person was convicted of first-degree murder and given the mandatory minimum sentence of life imprisonment with no chance for parole for 25 years, they may apply for release to a provincial court after only 15 years. The judge reviewing the case may decide to pass it on to a jury, which may recommend the early release to the Parole Board of Canada, which will make the final decision.

Bill S-6 ends this provision completely, if not quite retroactively:

• Those who are convicted of murder or treason after the bill comes into force will no longer be able to apply for early parole after 15 years. They will simply have to serve their full sentence.

• Those who were convicted before the amendment comes into force will still be able to use the faint-hope clause, but will face more stringent conditions for doing so.

Now, how does this concern pardons for criminal records? It does not directly, as no conviction carrying a life sentence can be pardoned; it’s the principle behind the change in the law that gets me thinking. Among the different changes to the law that the Conservatives have been pressing for since coming to power, both harsher sentences and more difficult pardon conditions have been tabled, and with both Bill C-23B and a sharp increase in the price of pardons being currently considered, there is as yet no end to this. It would seem to me that the Government is treating two separate concepts, a sentence and a pardon, as if they both related to the punishment of an offender. Namely, while the sentence itself directly punishes the crime, making it more difficult to pardon a criminal record contributes further to the punitive effect of the law. In my opinion, this is a fallacious approach. It would be far better to make just and substantial punishments for each offence, as the Government did in the case of murder with Bill S-6, and then, once the sentence has been served, to consider the punishment to be fulfilled and help a person re-integrate into society.

The whole hype over pardons started a year ago, when information was made public that hockey coach Graham James, who had been convicted in 1997 of sexually abusing a number of young players, had received a pardon in 2007. This aroused the Prime Minister’s fury and prompted him to target pardons in addition to toughening the Criminal Code. But James’ case is an extreme one and the crimes of people like him should not prevent all convicted Canadians, some of whom have committed nothing more serious than petty theft and have long re-integrated into society from being rehabilitated after they have paid their debt to society. Perhaps more shocking than the pardon James received is the fact that James served only two years in jail for his crimes. If he had received a serious sentence, let’s say seven to ten years, and had to serve it in full, it would have punished him more substantially than not receiving a pardon for his criminal record.

Tags: criminal record, pardon

As we recently reported, a proposal by the Government to raise the cost of applying for a pardon to $631 – after it has only recently been raised from $50 to $150 – was submitted for public consultation. So far, public reactions to the proposal have been divided – and passionate. It seems that this issue is splitting Canadians into two ideologically-based groups:

• People who think that taxpayers should not foot the bill for pardoning a criminal record: whoever commits a crime should have to pay for their own rehabilitation.

• People who think that a person deserves a second chance and that if it is too difficult or expensive to get a pardon for a criminal record, a person will never be rehabilitated.

The whole discussion is part of the wider issue of whether the pardons process in Canada is strict enough as it is or whether it should be made more difficult to get pardons. The fact that the price of pardons is under debate at the same time as the general requirements for pardoning a criminal record (as per Bill C-23B) shows how deeply set the Government is on this issue.

But what would raising the price of getting a pardon achieve? The Government claims it would offset the cost to the taxpayer: pardons are “not an entitlement”, and the offender should have to pay for it, not the public. But is this really fair? One of the uses of taxpayers’ money is to administer the justice system. Courts, prisons and police cost far more than pardons, and they are all paid for from the public purse. Furthermore, raising the price of pardons would deny them to some people simply because they cannot afford it (likely because they cannot get a job due to the very criminal record that a pardon would seal), without any regard to how deserving that person is of getting a pardon. Others will be stumped by the increased restrictions and bureaucracy that Bill-C23B plans to bring about. If otherwise law-abiding people are unable to get pardons on such technicalities, they will not be able to get many jobs or participate in other activities, because of a long-atoned for mistake. We can expect that they will resort to crime and other anti-social behaviour in order to deal with it, and society will pay more in the long run.

While the Government’s proposal to raise the price of pardoning criminal records has met with some support, so far there has also been a strong public backlash against the proposal, and both the Liberal Party and the NDP have criticized it. Perhaps the Conservatives will see reason and not let ideological and populist reasons implement a counterproductive policy. The public consultation ended on 27 February, so the outcome may be seen very soon.

Tags: criminal record, pardon