What we Heard - Public Consultations on the Record Suspension Program - Final Report
The Government of Canada has committed to conduct a review of the legislative changes made to the criminal justice system over the past decade. In support of this commitment, a public online consultation regarding the record suspension (formerly referred to as pardons) program, as outlined in the Criminal Records Act (CRA), was held between November 7 and December 16, 2016, with a total of 1,166 submitted surveys. In-person consultations also occurred with approximately 70 criminal justice stakeholders including offender advocates, victims’ advocates, national Indigenous organizations, and Provincial and Territorial representatives between September and December. Written submissions provided by the public were also utilized to draw feedback for this purpose.
The information gathered through these consultations will be used to help inform the development of options for the reform of the CRA. This review is aimed at assessing the reforms made to the CRA over the past decade, ensuring the increase of public safety, providing value for money, addressing gaps, and ensuring current provisions are aligned with the objectives of the criminal justice system.
Amendments made regarding the record suspension program over the past decade included changing the terminology from pardon to record suspension, an increase in wait periods before an offender is eligible to apply for a record suspension, and changes in the eligibility criteria for receiving a record suspension.
The record suspension program supports rehabilitation by removing the social stigma of a criminal record for those who have completed their sentence and demonstrated their ability to live as law-abiding citizens. The facilitation of safe and effective reintegration of former offenders into the community has economic, social, and public safety benefits. Record suspensions are the final step in the reintegration process, and as such, the Government is committed to ensuring they are accessible, fair, and proportionate.
Below is a summary of what we heard during the consultative process, as highlighted by participants, stemming from the online consultation, the targeted in-person consultations, and written submissions provided by members of the public.
Part of the reforms to the CRA in 2010-2012 included changing the term from “pardon” to “record suspension”, which has been met with some criticism for implying that the ex-offender’s past is still hanging over them, rather than having a clean slate. In both the online and in-person consultations there was varying support for both terms, though the online consultations showed that 64% of respondents preferred the term pardon whereas only 19% preferred the term record suspension.
Amongst the online, in-person, and written responses, there was a clear indication that the term used should reflect the purpose of the program itself. Those who preferred the term record suspension noted that it is a more conditional term, less emotionally charged than pardon. Victim considerations were raised as the term pardon implies forgiveness, which many feel should not be up to the government, but rather, for the victims of crime to give.
The respondents that preferred the term pardon liked that it implies a more decisive separation from the offender’s past. The term reflects more of an erasure of the wrong doings in order for the ex-offender to move on. Many believed this better reflects the nature of the system, as it may better promote rehabilitation of ex-offenders by giving them a clean slate or second chance.
Despite which term was preferred, there was an overall consensus that the term used ought to reflect a balance of considerations for both offenders and victims, and that the term should reflect the purpose of the system, highlighting rehabilitation. Some participants brought up other possible terminology, such as “Open/Closed” records, that would be free of any emotional connotation, though concerns were raised regarding the clarity of these terms, and possible confusion regarding their use.
Clarify the Purpose of the Program
Participants in both the online and in-person consultations were asked to express their opinions on what the purpose of a record suspension is/should be. There was a discussion during the in-person consultations regarding whether a record suspension is meant to be a tool for achieving reintegration into society, or a reward for having already successfully reintegrated. Participants indicated that if the purpose is to facilitate reintegration, then enhanced access should be considered, whereas if the purpose is to reward an individual who has already reintegrated, more stringent requirements should be considered. There was a general consensus throughout the written submissions as well as in the in-person consultations that the purpose ought to include the reduction of barriers to allow for reintegration.
In the online consultation, 43% of respondents were of the view that a record suspensions purpose should be to help people move forward and make it easier for them to obtain employment, find apartments, travel, etc. Another 38% of respondents online said the purpose should be to reward good behavior following a sentence and to acknowledge that the debt to society has been paid. During the in-person consultations, participants discussed the idea of changing social perceptions of record suspensions from being a privilege to a right. It was expressed that reasonable access to record suspensions ensures protection from discrimination under the Canadian Human Rights Act and provincial human rights legislation.
Eligibility Criteria & Wait Periods
Changes to eligibility criteria and wait periods were made from 2010 to 2012 and included increasing wait periods to apply for a record suspension from three years to five years for a summary conviction, and from five years to 10 years for an indictable conviction. Most individuals with Schedule 1 convictionsFootnote 1 and any individuals with more than three indictable offences, each which received a sentence of two years or more, on their criminal record were made ineligible to receive a record suspension.
Participants were asked to express their thoughts on existing eligibility criteria, wait periods, exclusions from applying, and what improvements could be made. Respondents from the online consultation showed mixed support for “some” crimes being deemed ineligible, with 48% of respondents saying it sounds fair, while 43% said it was too strict. Some participants in the in-person consultations suggested that eligibility criteria should differentiate between those who are generally law abiding (e.g., first appearance in court, first conviction, minor offence, etc.) and those who have longer criminal histories.
Participants discussed whether conviction type (i.e., summary vs. indictable) is an appropriate factor to distinguish wait periods, and the idea of categorizing wait period by offence type (e.g., violent vs. non-violent crimes) was examined as it may be more reflective of offence severity. Respondents in the written correspondence as well as those in the in-person consultation brought up that whether a case is proceeded summarily or by indictment sometimes has less to do with the offence itself, and more to do with the legal representation working on the case. There was a consensus among participants in the in-person consultations that violent offenders should have to wait longer than non-violent offenders, and some of the data from the survey respondents support this view. Online survey respondents were asked if there are other factors that should be considered when determining waiting periods, and 35% of participants agreed that circumstances/seriousness of the crime was the most important factor, followed by the good behavior or commitment to change on the part of the applicant (24%).
The general consensus among all participants was that wait periods to apply for a record suspension are too long. The majority of online respondents believe that the wait period of five years for a summary offence (74%) and the wait period of 10 years for an indictable offence is too long (69%). These views were reflected in the in-person consultations, as well as correspondence received on the matter. Many people expressed the view that the previous wait periods of three and five years for summary and indictable crimes, respectively, were sufficient. Some were of the view that the wait periods ought to consider the impact of the offence on victims and community as well as both the probability of reoffending and the potential impact on victims and society if reoffending were to occur, and there was discussion on whether the Parole Board of Canada (PBC) ought to consider existing treatment records and existing risk assessment tools in making their determination on eligibility (e.g., higher risk offenders ought to wait longer than lower risk offenders).
Some participants indicated that consideration should be given to replacing pre-determined wait periods with case-by-case consideration of circumstances by PBC Board members. The overarching viewpoint in this respect was that wait periods are too long and both wait periods and eligibility criteria should be reviewed and reformed in such a way that is aligned with the purpose of the record suspension system and is evidence-based, taking into consideration the severity of the crime and external factors pertinent to the offence(s).
Improve Efficiency and Access to Process
Participants in the in-person consultations and the online survey were asked how the record suspension system could be improved. Many of the same themes arise in the correspondence received from the public as well. Many respondents believed that changes made in 2010 and 2012 were unnecessary, and that the previous law should be reinstated.
A major theme was that the process was onerous for the applicant, with respect to obtaining criminal records checks from both local police forces and the RCMP, as well as obtaining all required court documentation and other forms. Many suggested that an electronic filing/application system would streamline the process. There was some discussion in the in-person consultations around the inception of a process by which a file would be created at the time of conviction to consolidate all information that would eventually be required to apply for a record suspension. There were concerns, however, on which organization would be responsible for this record and the mechanisms by which it would incorporate all information from various jurisdictions.
The fee to apply for a record suspension is currently $631, compared to $50 before 2010. Though not specifically asked about fees in this review, respondents in the online survey, participants in the in-person consultations, and members of the public who wrote in with their concerns expressed that this current fee is too high, and stands as an obstacle for many people to receive a record suspension. The point was made that the majority of people who apply for a record suspension do so in hopes of obtaining stable employment.
Participants were asked to express their views on whether an automated record suspension system should be explored. The benefits of an automatic system would include reductions in arbitrariness, access inequalities, and administrative burdens, while increasing efficiency. Some participants believed that all offences should be eligible for an automatic suspension, while others suggest a system where some offences would not be eligible based on type or severity of crime.
In the online survey, 83% of respondents agreed that record suspensions should be automatic for some crimes as long as the offender completed all parts of the sentence (including paying any fines due) and remained crime-free for a prescribed period of time. Most commonly, participants listed property crimes, theft, drug crimes, non-violent crimes, and summary offences as those that should be eligible for automatic suspension. Many participants expressed the view that automatic suspension should be considered for offenders convicted of offences that are no longer considered crimes, including prostitution, consensual gay sex/sodomy, and the possession of cannabis, should it be legalized.
Some concerns were raised in the in-person consultations about an automatic process, including practical issues of how it would work since not all criminal records are kept in the RCMP’s CPIC database, and how other jurisdictions such as provinces/territories and border agents would be able to participate. There were also concerns that an automatic system would lead to less of a review of case information, and impact Canadians’ confidence in the criminal justice system. Some participants expressed concern that an automatic system may not adequately take victims’ issues into consideration. Concerns were also raised that automatically suspending records for minor offences may impact the ability for law enforcement and the Crown to identify patterns/precursors leading to more serious crimes. This was noted as being particularly relevant for cases of terrorism/radicalization to violence and concerns were raised that an automatic system may impact law enforcement’s ability to monitor/investigate these offenders.
Participants in the in-person consultations were asked whether the CRA should address when a record should be wiped clean. Some participants voiced the need for this to be a separate process distinct from the record suspension process, and that this process would be particularly appropriate for offences that are no longer crimes under the Criminal Code (e.g., consensual homosexual activity, prostitution, and potentially simple possession of cannabis in the future). There was some discussion about the challenges this may raise for offences which go back and forth from being criminalized vs. decriminalized (e.g., prostitution). Discussions occurred regarding the circumstances where an expunged record should be disclosed, whether they should be deleted or sealed, and whether the sealing of a criminal record should also seal other documents obtained as a result of a conviction such as fingerprints and DNA.
Disclosure of Suspended Records
There were discussions in the in-person consultations surrounding existing mechanisms for disclosing suspended records and changes that ought to be considered. There were discussions around two circumstances in which disclosures may be considered; upon application for vulnerable sector jobs/volunteering, and upon re-exposure to the criminal justice system.
Some expressed the view that disclosures should be limited to the specific position/purpose and should only occur where there is a link between the type of offence and the position requested. There was some concern that in cases of an ex-offender applying for work in the vulnerable sector, the system may be putting that vulnerable sector at increased risk if disclosure of the suspended record is not made.
Some expressed the view that if the ex-offender has additional contact with the criminal justice system, the system should be aware of the suspended offence(s). Some raised concern that Crown attorneys are not made aware of the existence of a suspended record when new charges are laid (they are only made aware at sentencing). This information may impact the way they prosecute the case (e.g., summary vs. indictable, as well as how they proceed with bail). Discussions were had around the feasibility of either releasing the record to the Crown with the caveat that it is a suspended recorded, or alternatively flagging the existence of a suspended record at which point the Crown could make a disclosure request. Similar concerns were raised regarding police not knowing about the existence of suspended records at the investigative stage.
Alternatively, some were of the view that granting access (or advising of the existence of a record suspension) at either the investigative or charges stages brings into question the value of having a record suspension, and goes against the presumption of innocence. They suggested that if the criteria for a record suspension is met, that suspended record should not be able to come back to be used against an offender in court, and that if they re-offended it should be treated as a first offence. There was some discussion about whether thresholds/limitations might be possible that would satisfy both parties, however, no consensus was reached.
Participants in the in-person consultations were asked to consider all questions through an Indigenous lens, and highlighted several issues. Reintegration into Indigenous communities is unique given the challenges faced by many communities, as well as the history of abuse, disproportionate effects of mental health issues and overrepresentation, and lower education and employment rates, etc. Some expressed the view that the impacts of a prohibitive and expensive system on these communities are more significant because of these factors, and there should be a special emphasis on automatic purging of records for Indigenous peoples. Some participants suggested that the Gladue principles should be reflected in the record suspension process. Participants held the view that restrictions on eligibility based on number of convictions unduly affects Indigenous peoples, and the holistic nature of Indigenous justice means that certain types of offences (e.g., sexual assault) cannot be treated differently than others.
When asked to consider the views and needs of victims, participants in the in-person consultations indicated that victims generally support a law-abiding person wanting to reintegrate into society and move on with their lives. However, they were of the view that it is important to recognize that record suspensions involving sexual offences or which cause serious harm to victims are more sensitive. As a result, they suggested longer wait periods for those who commit such offences and that consideration be given to the harm caused to victims when determining eligibility. Given that victims may suffer long-term or lifelong impacts from the harm caused, it was suggested that the connotation of forgiveness associated with the term “pardon” may not be appropriate. They expressed the view that issuing forgiveness is the place of the victim rather than the government. However, this view was not reflected in the online consultation, as 69% of respondents representing victims supported the term “pardon”.
Participants were of the view that all aspects of a sentence (time served, fines paid, restitution made, etc.) are important and must be met in order for an ex-offender to have their record suspended. Victims expect that restitution orders towards them be paid prior to a record suspension being granted. In exigent circumstances, some were of the opinion that having a payment plan in place may be sufficient, provided there is a mechanism to revoke the record suspension if the payments are not made.
Non-Convictions in Criminal Records
Currently, there is no provision in the CRA for the expungement/record suspension of records that involved a withdrawal of charges or stay of proceedings. This means that charges that never led to convictions may still appear on the criminal record of an individual. The point was made during the in-person consultations that in cases where a stay of proceedings or a withdrawal of charges happened, those charges could remain on the individual’s record indefinitely, whereas if they had actually been convicted and sentenced they would eventually be eligible for a record suspension. There was also the opinion that there should be a way of providing relief for non-conviction information regardless of the reason why it did not result in a conviction (e.g., stay of proceedings, withdrawal of charges, etc.).
An accusation regarding an offender, even if never leading to an arrest, has been cited as a reason for a record suspension to be denied. This was deemed to be unfair by participants and highlights the need for non-conviction information not to be shared. Section 7 of the Charter was raised to provide weight to the idea that a record of anything short of a conviction should not be accessible by law enforcement officials, such as police and corrections officials, and should only be used for intelligence purposes.
Payment of Fines
Currently, any offender who has fines attached to their sentence must complete payment before they can apply for a record suspension. Some participants in the in-person consultations held the view that fine payment should continue to be a prerequisite to offender eligibility, citing that fines and victim surcharges should be considered a part of their sentence. There was an opposing view that fines shouldn’t stand in the way of a record suspension, given that many offenders are unable to acquire employment because of their record. The view that many offenders are unaware of fines or surcharges that may remain on their record and only find out when they are denied records suspension was voiced. Offenders must pay the fine, pay another application fee to reapply for the record suspension, and then begin the imposed wait period again. This process is considered to be unfair by many respondents throughout all consultations.
Many people who wrote in believe there should be more of an effort on the part of the court system to ensure that fines are paid to victims, so victims have fewer obstacles to receive their restitution. This would also help make sure offenders are not being denied record suspensions simply because they had forgotten about/were unaware of surcharges and fines still on their records.
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