Public Consultation on the Records Suspension Program

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Submitted to:
Public Safety and Emergency Preparedness Canada
EKOS Research Associates Inc.
January 2017

Disclaimer

Due to the consultations online delivery and self-report nature, the results compiled from this study may not be generalizable to the general public. The consultation was open to any person who wanted to take part, however, it may be that those already interested in the criminal justice system review and records suspension program were more likely to respond. As such, this sample of responses may not be representative of the values of Canadians as a whole.

1. Introduction

1.1 Background

Under the Public Safety (PS) portfolio, the Parole Board of Canada (PBC) is an independent administrative tribunal that has exclusive authority under the Corrections and Conditional Release Act (CCRA) to grant, deny, cancel, terminate, or revoke day parole and full parole, statutory release, and offenders supervised on Long Term Supervision Orders. The Board also has sole authority under the Criminal Records Act (CRA) for ordering, refusing to order, and revoking a record suspension (formerly called a “pardon”).

A record suspension allows people with a criminal record to have it set aside and apart from other non-suspended records in the Canadian Police Information Centre (CPIC) database. This means that a search of CPIC will not show a criminal conviction for the individual (or that they received a record suspension). Although the CRA applies only to records kept by federal organizations, most provincial and municipal criminal justice agencies also restrict access to their records once they are told that a record suspension has been ordered for an individual. Upon consent of the Minister of Public Safety, or delegate, suspended records can be disclosed in specific instances, such as for court purposes when an offender re-enters the criminal justice system as well as for vulnerable sector checks. 

A record suspension removes the social stigma associated with having a criminal record, and allows individuals to access educational and employment opportunities, and in-so-doing facilitates their reintegration into society as productive citizens. Since 1970, more than 490,000 Canadians have received pardons and record suspensions – 95 percent of which are still in force, indicating that the vast majority of pardon/record suspension recipients remain crime-free in the community.

Between November 7 and December 16, 2016, PS conducted an online public consultation regarding a review of legislative reforms made during the last 10 years concerning the Record Suspension Program, as outlined in the CRA. The review of the CRA is aimed at ensuring that record suspensions are:

1.2 Methodology

EKOS developed a questionnaire suited to the purposes of an online public consultation based on information provided by PS, including many of the major issues associated with the review of the CRA and the provisions dealing with record suspensions (aka “pardons”).

The questionnaire was designed to take an average of approximately 15 minutes to complete (the maximum survey length recommended within the Government of Canada’s standards for public opinion research). The questions were primarily closed-ended in nature, with several open-ended questions asked throughout the survey.

In addition to the substantive questions dealing with the review of the reforms to the CRA, the questionnaire included several demographic questions to identify respondents’ region, age, gender, and education level. In addition, participants were asked a question about their interest in participating in the consultation (i.e., as a concerned citizen, as an individual convicted of a crime, as a trusted third party representing the interests of individuals convicted of crimes, or as someone acting in another professional capacity related to the consultation issues).

The questionnaire was programmed and administered to participants by PS. It was fielded between November 7 and December 16, 2016. A total of n=1,166 participants responded. This executive summary is based upon the data file provided to EKOS by PS as an outcome of the fieldwork.

Demographics

The table below outlines the sample characteristics based on several key demographic variables gathered during the survey. Data from the 2011 federal Census is included in the table for reference purposes.

Subgroup Sample
Interest in Consultation Works in Justice System 29%
Represents Victims 4%
Represents Offenders 12%
Represents (others) 11%
Convicted and Applied for a R.S. 13%
Convicted has NOT Applied for RS 13%
Prefers not to say 19%
Subgroup Sample Census
Province British Columbia 8% 13%
Alberta 13% 11%
Saskatchewan/Manitoba 9% 7%
Ontario 45% 39%
Quebec 16% 23%
Atlantic Canada 6% 7%
The North (NU, NWT, YK) 1% 0.3 %
Prefers not to say 1% -
Age 18-34 30% 28%
35-54 45% 27%
55+ 24% 35%
Ethnicity Caucasian 69% 84%
Visible Minority 9% 16%
Aboriginal 5% 6%
Other 8% -
Prefer not to say 10% -
Gender Male 49% 48%
Female 45% 52%
Prefer not to say 6% -
Education H.S. or less 7% 20%
Some Post-secondary 28% 55%
University+ 62% 25%
Prefer not to say 3% -

Notes: The groups interested in the consultationdo not correspond with populations recorded in the Census, so these comparisons are not available. Ethnicity equates "caucasian" with the Census designation, "non-visible minorities." The Ethnicity numbers do not total 100% as Aboriginal may or may not self identify as "visible minorities."

1.4 Key Findings

The following are the key findings from this consultation.

Purpose
When asked to describe in their own words what the purpose of a record suspension is, participants most often they said the purpose is:

Terminology
When asked about the terminology, participants overwhelmingly said they prefer the term "pardon" (64%) to the newer term "record suspension" (19%). Some (9%) mentioned another alternative, often a "closed" or "sealed" record. Those who preferred "pardon" to "record suspension" often said they liked the decisive break with one's criminal past. Those who preferred "record suspension" often felt that it was a more conditional term that served to reinforce the need to remain free of criminality amongst those who receive one.

Eligibility
Participants were provided information about situations where no record suspension is available and, for each, asked whether they considered this approach too lenient, fair or too strict. On this basis, the consultation finds that:

Waiting Periods
Currently, there is a five-year waiting period after the completion of a sentence for a summary offence to be eligible to apply for a record suspension. When asked if this waiting period is too long, too short or appropriate, three in four participants (74%) said it is too long, while about one in four (23%) said it is appropriate. Only 3% felt it was too short.  Those who said it was too long most often said it should be either one or two years (29%) or between two and three years (35%).

The waiting period to be eligible to apply for a record suspension following the completion of a sentence for an indictable offence is 10 years. When asked whether they felt this period of time was too long, too short or appropriate, nearly seven in ten participants (69%) said they felt it was too long. Just over one in five (22%) said it was appropriate, while 6% said it was too short. When asked how long the waiting period should be, those who said it was too long most often said it should be between one and five years (50%), while a few others said it should be between six and eight years (5%).

Other Factors to Consider
When asked if there are other factors that should be considered in deciding what the waiting period to be eligible to apply for a record suspension should be, participants most often said it should depend on the circumstances or seriousness of the crime (35%), or a history of good behavior after the sentence (24%).

Over four in five participants (83%) agreed that record suspensions should be automatic for some crimes if the convicted person has completed their sentence, paid any fines due, and has remained crime-free for a prescribed period. When asked which crimes they felt an automatic suspension should apply to, participants most commonly mentioned property crimes and theft (21%), drug crimes (21%), non-violent crimes (20%), and summary offences (18%).

When asked what other factors could or should be considered before granting a record suspension, participants said it is important that applicants have maintained good conduct, that the record suspension would help their re-integration into society, and that they have demonstrated an effort to re-integrate by developing a lifestyle not associated with criminal behavior.

Three in four participants (75%) agreed that additional criteria (such as good behavior, the impact of a record suspension, and an effort to re-integrate) were appropriate conditions before granting a record suspension for some crimes.

When asked which types of offences additional criteria should apply to, participants described offences that in their view should not be eligible for a record suspension while others mentioned the same crimes as ones that might be eligible for a record suspension, but which should be subject to the additional criteria indicated. Sexual crimes and crimes against children (29%) as well as violent crimes (23%) were most often mentioned as crimes that should not be eligible for a record suspension at all. Property crimes (23%), drug crimes (15%) and DUI or vehicular offenses (5%) were most likely to be mentioned as ones that could be eligible, subject to the additional factors indicated.

Participants were asked to rate the importance of several factors in deciding whether to order a record suspension or not. Among the tested factors, nearly all participants said remaining crime-free for a prescribed period of time is important (97%). Similarly, 92% said it is important that the applicant has maintained good conduct since completing his/her sentence.  The potentially beneficial impact of a record suspension on a participant was also seen as a key factor (87% say this is important).

Process
About three in four participants (74%) say the process of applying for a record suspension is either very hard (37%) or somewhat hard (37%). One in five (20%) say that the process of applying for a record suspension is easy (only 4% describe it as "very easy").

When asked what changes could improve the system, participants often mentioned the need to "streamline" the process, with some pointing to the need to obtain criminal records checks from both local police as well as the RCMP as a particularly onerous part of the process. Others said that streamlining or reducing the forms that need to be completed would help, while others felt that making it possible to apply online would be useful. Many participants also suggested that making a record suspension automatic, based on some period of remaining crime-free following a sentence, would be particularly helpful. Though this consultation did not specifically ask respondents about their thoughts on user fees, several respondents mentioned them as a significant burden in other open ended responses.

Disclosure of Suspended Records
Participants were asked what factors should be considered in deciding whether to disclose a suspended record. Majorities agreed that each of the tested factors could be important considerations in deciding whether to disclose a suspended record. Most often participants agreed that whether an offence involved vulnerable persons (82%) should be a consideration, followed by the age of the individual at the time of the offence (75%), whether the offence is relevant to the reason for the request (74%), and how much time has elapsed since the offense was committed (71%).

Expungement
Nearly nine in ten participants (86%) say there are crimes where a criminal record should be completely wiped off the criminal record, particularly minor crimes in general, minor drug offenses (particularly possession of marijuana), and consensual sodomy/gay sex (once considered criminal behavior). Many also mentioned the age at the time of the offence as a factor, favoring wiping off a record if the person was relatively young at the time.

2. Detailed Findings

2.1 Views on Purpose of a Record Suspension

Participants were asked what the purpose of a record suspension should be. Most often they said the purpose of a record suspension should be to help people move forward, making it easier for them to get jobs, apartments, to travel (particularly to the U.S.), and other things that people with criminal records find it more difficult to do (43%). In a close second place, nearly two in five participants (38%) said the purpose should be to reward good behavior following a sentence and to acknowledge that the debt to society has been paid. Others mentioned that a record suspension can help the process of rehabilitating offenders and re-integrating them into society (18%). Similar themes in this vein included the concept of forgiveness and giving a "second chance" (12%) and removing the stigma of a criminal record (11%).

Still others more simply described the purpose as eliminating a criminal record (18%).

Graph

2.2 Views on Terminology

When asked to choose, participants overwhelmingly said they prefer the term "pardon" (64%) to the newer term "record suspension" (19%). Some mentioned another alternative (9%), often a "closed" or "sealed" record. Fewer than one in ten (8%) said it does not matter what terminology is used.

While only asked which term they preferred, many participants explained their preference. Those who preferred the term 'pardon' often said it was because they felt that it represented a more decisive expression separating the person from his or her criminal past. Those who preferred the term "record suspension" often felt that "pardon" represented an erasure of one's criminal past. These respondents felt that the more conditional nature of the term "record suspension" could serve to remind those who receive one that further criminal conduct could bring their criminal past out of suspension. The comments below are typical of these views.

"The term 'pardon' should be used and not 'record suspension' as the latter implies a continuing distrust of a character that is still considered delinquent and untrustworthy."

"Pardon is the better term.  The term 'record suspension' may indicate the criminal record is only being suspended while the term 'pardon' implies the criminal record is being pardoned or erased from existence."

"Le terme suspension de casier est approprié. La personne demande à ce qu'on suspende son casier afin qu'il n'apparaisse plus s'il y a des vérifications. Il ne faut pas oublier qu'un crime a été commis et qu'il y a eu des victimes, donc le terme pardon est plutôt inapproprié au regarde du fait que la victime n'a peut-être pas du tout pardonnée à la personne concernée. De plus, comme on ressort le casier dans sa totalité si le criminel récidive, on ne le pardonne pas complètement."

Pie chart

2.3 Views on Eligibility

Participants were provided information about situations where no record suspension is available and, for each, asked whether they considered this approach too lenient, fair or too strict.

Based on the general statement that "some crimes" are not eligible, participants were divided between those who said it sounds fair (48%) and others who said it is too strict (43%). Participants were also divided when told that people convicted of more than three indictable offences for which sentences of two years’ imprisonment or more were imposed are not eligible for a record suspension. Nearly half (48%) said this seems too strict, while two in five (41%) said it seems fair. Views were more clear with respect to the ineligibility of people convicted of sexual offences against children. Nearly three in five (58%) said this sounded fair, while an additional 12% felt it was too lenient. However, one in four (25%) said that the ineligibility of persons convicted of sexual offences against minors is too strict.

Graph

2.4 Views on Appropriate Time Before Eligible to Apply for a Record Suspension

Currently, there is a five-year waiting period after the completion of a sentence for a summary offence to be eligible to apply for a record suspension. When asked if this waiting period is too long, too short or appropriate, three in four participants (74%) said it is too long, while about one in four (23%) said it is appropriate. Only 3% felt it was too short.

Those who said it was too long were asked how long it should be. The majority of these participants said it should be either one or two years (29%) or between two and three years (35%). A few participants said it should be treated on a case-by-case basis (6%) or that offenders should automatically be eligible to apply when their sentence is complete (3%). One in four (26%) say they don't know.  (The few who said the period was too short were also asked how long it should be. They most often said it should be 10 years.)

Pie chart

The waiting period to be eligible to apply for a record suspension following the completion of a sentence for an indictable offence is 10 years. When asked whether they felt this period of time was too long, too short or appropriate, nearly seven in ten participants (69%) said they felt it was too long. Just over one in five (22%) said it was appropriate, while 6% said it was too short.

When asked how long the waiting period should be, those who said it was too long most often said it should be between one and five years (50%), while a few others said it should be between six and eight years (5%). One in ten felt that it should be determined on a case-by-case basis (10%). Three in ten said they don't know how long it should be. (Those who said it the 10-year waiting period was too short most often said that the waiting period should be based on the severity of violence involved in the crime, if any. Others said the period should be as long as 15 or 20 years.)

Pie chart

When asked if there are other factors that should be considered in deciding what the waiting period to be eligible apply for a record suspension should be, participants most often said it should depend on the circumstances or seriousness of the crime (35%). Others said it should take into account the good behavior or committment to change on the part of the applicant (24%). Still others mentioned the length of the sentence or criminal history of the applicant (14%), or the potentially positive impact the suspension may have on the applicant's rehabilitation (10%).

Pie chart

2.5 Views on Whether Record Suspensions Should be Automatic for Some Crimes

Over four in five participants (83%) agreed that record suspensions should be automatic for some crimes if the convicted person has completed their sentence, paid any fines due, and has remained crime-free for a prescribed period of time. Just over one in 10 (13%) disagreed.

Graph

When asked which crimes they felt an automatic record suspension should apply to, participants most commonly mentioned property crimes and theft (21%), drug crimes (21%), non-violent crimes (20%) and summary offences (18%). Fewer mentioned drinking and driving (10%) or all crimes, generally (5%). A few particularly pointed to sexual crimes as ones that should not be eligible for an automatic record suspension.

Graph

Several additional factors for consideration before a record suspension could be granted for some crimes were described, including that applicants have maintained good conduct, that the record suspension would help their re-integration into society and that they have demonstrated an effort to re-integrate by developing a lifestyle not associated with criminal behavior. On this basis, three in four participants (75%) said that these additional criteria were appropriate conditions before granting a record suspension for some crimes. Just fewer than one in five (17%) disagreed, while 8% said they didn't know.

Graph

When asked which types of offences the additional criteria should be applied to, the responses were more ambiguous than the offenses that participants felt would be appropriate for an automatic record suspension (c.f. p.18 above). While few participants feel that all crimes should be treated the same way, when it comes to which crime should be subject to additional factors before providing a record suspension, a wide range of responses were offered. It seems as though interpretation of this question was of a mixed nature, with some responses not clearly relating to the spirit in which the question was asked.

Those who interpreted the question in the spirit in which it was asked differentiated between relatively minor offenses, which could be subject to an automatic suspension, and more serious crimes, which would involve additional scrutiny.

Ces critères font déjà partie intégrante de l'actuelle demande de suspension de casier judiciaire, dans le formulaire 'Bénéfices mesurables.' Néanmoins, dans le cas d'une suspension automatique, ces questions pourraient être posées à un individu ayant commis des infractions de nature sexuelle ou plusieurs de nature violente.
“Not minor crimes like property offences, but more serious crimes where there is significant harm or personal injury to the victim.”

Other respondents answered in a manner inconsistent with the nature of the question., with many participants identifying a simple list of offenses, such as below. However, in a number of cases they indicated crimes (such as property crimes) which were also prominently mentioned as ones that could be considered for an automatic record suspension. 

“Property crimes, assault, drug crimes.”
“Crimes of violence, drugs, fraud.”
“Crimes contre la propriété”
Vols, introduction par effraction, voies de fait, certains crimes sexuels (selon la gravité de l'agression)

Likewise, other participants indicated specific types of crimes which they believe should not be eligible for a record suspension at all (either automatically or with additional factors for consideration). Responses typical of this are indicated below.

“Summary offences and some indictable offences, except those of sexual and/or violent nature”
“All with exception to those where victimization is significant,  such as major white collar crime, assaults and homicide.”
Tout type de crime excluant les sentences vie

In total, the data clearly point to violent offenses and sexual offenses (particularly committed against children) as ones that should - at the very least - receive much more scrutiny prior to a record suspension, if they are to be eligible for one at all. In many comments, there was also a particular focus on the harm involved. For example, a few participants mentioned major financial crimes impacting many victims as ones that should either not be eligible for a record suspension, or which should at least be subjected to further scrutiny. Another way to interpret this would be to say that the category or type of offense is less important to many participants than the significance of the impact the crime had on individual victims.

2.6 Importance of Criteria in Deciding whether to Order a Record Suspension

Participants were asked to rate the importance of several factors considered by the Parole Board of Canada in deciding whether to provide a record suspension or not. Among the tested factors, participants most often said that remaining crime-free for a prescribed period of time is very (82%) or at least somewhat important (15%). Similarly, the overwhelming majority consider it important that the applicant has maintained good conduct since completing his/her sentence (74% very important, 18% somewhat important).

The potentially beneficial impact of a record suspension on a applicant was also seen as a key factor (with 71% describing it as very important and 16% saying it is somewhat important). Evidence that an applicant has made a genuine effort to re-integrate into was considered very important by 61% of participants, while 21% said this was somewhat important.

The payment of fines associated with a sentence was less often seen as an important consideration (43% very important, 34% somewhat important), while the potential impact of a particular record suspension was least often seen as an important consideration (14% very important, 25% somewhat important).

Graph

When asked about changes to the factors considered by the Parole Board of Canada, responses varied from those who emphasized that the process should be better designed to promote rehabilitation to a few who felt that the process should be made more onerous. A particular point of contention for many was the issue of fines, which many felt put an unfair burden on poor applicants, while others said the existence of outstanding fines was often unknown to applicants (and come as a suprise when they learn about them).

2.7 Views on the Process of Applying for a Record Suspension

About three in four participants (74%) say the process of applying to the Parole Board of Canada for a record suspension is either very hard (37%) or somewhat hard (37%). Few participants (20%) say that the process of applying for a record suspension is easy (only 4% describe it as "very easy").

Graph

When asked what changes could improve the system, participants often mentioned the need to "streamline" the process, with some pointing to the need to obtain criminal records checks from both local police as well as the RCMP as a particularly onerous part of the process. Others said that streamlining or reducing the forms that needed to be completed would help, while others felt that making it possible to apply online would be useful. Many participants also suggested that making a record suspension automatic, based on some period of remaining crime-free following a sentence, would be particularly helpful. The cost of applying for a record suspension (currently $631) was also mentioned by several as a significant burden.

2.8 Factors to Consider in Disclosing a Suspended Record

Participants were asked what factors should be considered in deciding whether to disclose a suspended record. Majorities agreed that each of the tested factors could be important considerations in deciding whether to disclose a suspended record. Most often participants agree that whether an offence involved vulnerable persons (82%) should be a consideration, followed by the age of the subject at the time of the offense (75%), whether the offence is relevant to the reason for the request (74%), and how much time has elapsed since the offense was committed (71%). Those who represent victims are more likely to view each of these factors as reasons to disclose a suspended record.

Graph

When asked whether there were other factors than these to consider, most participants (62%) said there were not, gave no response or weren't sure. Among those who responded, many said simply that it should be a judgement call decided on a case-by-case basis. Others said that the potential for a negative impact on the subject's life should be taken into account, while others said if the suspended record was violent or sexual in nature there should be more latitude to disclose that record.

2.9 Crimes that Should be Completely Wiped Away

Nearly nine in ten participants (86%) say there are crimes for which a criminal record should be completely wiped off the record. When asked which types of crimes should be wiped off the record, participants most often mention minor crimes, generally, minor drug possession (particularly possession of marijuana), and sodomy/gay sex (once considered criminal behavior). Many also mentioned the age at the time of the offense as a factor, favoring wiping off a record if the person was relatively young at the time.

Pie chart

2.10 Conclusions

The information gathered from this consultation is now being compiled and a summary of the feedback received will be made public in Winter 2017. This data will help inform the Government of Canada on decisions for the review of the Criminal Records Act.

In summary, the findings show that participants in the consultation value the record suspension as a tool to help offenders move forward in their lives and, in doing so, remain productive members of society free of criminal behavior.

It is from this perspective that many prefer the more expansive connotations to the term "pardon" (64%) over the more conditional term, "record suspension" (19%). Those who prefer "record suspension" often do appreciate the essential objective of rehabilitation in the interests of avoiding recidivism, but would prefer to remind those in receipt of a record suspension that further criminality will bring their criminal history back to the fore.

The majority of participants believe that the record suspension process should involve shorter waiting periods. Three in four (74%) say the waiting period following a sentence for a summary offense should be shorter - most often between two and three years instead of the current five years. Similarly, seven in ten (69%) say the waiting period should be shorter for indictable offences - with a period of five years (or less) most often suggested.  

About three in four participants (74%) say the process of applying for a record suspension is difficult. When asked what changes could improve the system, participants often mentioned the need to "streamline" the process, with some pointing to the need to obtain criminal records checks from both local police as well as the RCMP as a particularly onerous part of the process.

Most respondents (83%) support an automatic record suspension process for some crimes if the convicted person has completed their sentence, paid any fines due, and has remained crime-free for a prescribed period. When asked which crimes they felt an automatic suspension should apply to, participants most commonly mentioned property crimes and theft (21%), drug crimes (21%), non-violent crimes (20%), and summary offences (18%).

Nearly nine in ten participants (86%) say there are crimes where a criminal record should be completely wiped off the criminal record, particularly minor crimes in general, minor drug offenses (particularly possession of marijuana), and consensual sodomy/gay sex (once considered criminal behavior). Many also mentioned the age at the time of the offence as a factor, favoring wiping off a record if the person was relatively young at the time.

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