Canada’s record suspension system is punitive and must be fixed

March 4, 2019

It’s been more than 200 years since a hot iron was used to mark permanent letters on the bodies of people convicted of crimes in courtrooms across England – the birthplace of Canada’s common law system of justice. ‘T’ for theft, ‘F’ for felon, and ‘M’ for murder. Though this violent branding no longer occurs, we still mark people through the imposition of a criminal record that is often just as damning.

A criminal record is almost as visible a brand as the hot iron markings. An increasing number of organizations, employers, volunteer managers, landlords, educational institutions and government departments insist on criminal background checks as part of their hiring and management practices. This means even those with minor records cannot fully participate in society after they’ve completed their sentence.

Canada’s pardon system, as it existed prior to 2012, provided some relief from the stigma associated with the criminal mark. People could apply to have their record sealed and set aside in order to find employment, return to school, volunteer in their communities or secure housing.

This was not only a benefit to the individual with a criminal record, it was good for our communities too. The research is clear: Pro-social community engagement results in decreased recidivism and increased public safety.

Canada’s pardon system, as it existed prior to 2012, provided some relief from the stigma associated with the criminal mark.

But unfortunately, instead of moving forward on even more progressive pardon laws, the Harper government chose to use the file to further its law and order agenda. Changes made by the Conservatives eliminated pardons in favour of “record suspensions” and made necessary relief harder to come by – especially for those who are already poor and marginalized.

The current 10-step record suspension application is needlessly complex and burdensome. It is a procedural quagmire that is almost unnavigable for lawyers, let alone the general public. The wait times to apply are unnecessarily long: 10 years for indictable offences and five years for the most minor of offences. And then there is the cost of well over $600 to even apply for a record suspension. Bottom line: this two-tiered system means if you are poor, you are branded for life.

The simple truth is that Canada’s record suspension system is punitive and it must be fixed.

Those aren’t our words. They were spoken by Minister of Public Safety Ralph Goodale in January 2016 when he vowed to overhaul Canada’s punitive pardon system. Well, it’s been more than three years and Goodale’s own record has been one of shameful inaction. He has done nothing to overhaul the Criminal Records Act, even after aspects of it were found unconstitutional by courts in Ontario and British Columbia.

Advocates and people with criminal records have grown frustrated by the lack of initiative, but recently we were provided with a glimmer of hope by Sen. Kim Pate, who introduced Bill S-258, An Act to amend the Criminal Records Act.

Sen. Kim Pate, shown here visiting the segregation unit at the Millhaven Institute had introduced a bill that would allow criminal records to expire after a set time period without a complicated application process and with no fee. OTTWP

Bill S-258 builds on decades of research and public consultation to do the work Goodale refuses to do. The legislation would allow criminal records to expire after a set time period without a complicated application process and with no fee.

If passed, this bill would also automatically grant pardons to people convicted of acts that are no longer illegal. For example, the convictions for historic offences based on discriminatory laws or records for non-violent cannabis offences would not be a lasting mark of shame and oppression.

Like all legislation in its early stages, Sen. Pate’s bill can be improved upon through parliamentary committee study, but it represents a monumental step forward for fairness, public safety and evidence-based justice policy.

While the previous federal government offloaded the costs of pardons completely onto people with criminal records, in reality we all pay the price for this broken system. It is in the public interest to have a robust system of pardons, not only because of piles of research that demonstrate sealing criminal records supports reintegration but also because we all benefit from a system that allows for restoration.

The Liberal government seems content with the status quo, but just as we look back on the hot iron with disgust and revulsion, it should remember that future generations will view its inaction in the same way.

Michael Spratt is an advocate for progressive criminal justice reform and a partner at the Ottawa criminal law firm Abergel Goldstein & Partners.

Samantha McAleese is a social justice advocate, a PhD Candidate in sociology at Carleton University, and a member of the Criminalization and Punishment Education Project.

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