Question Period Note: Record Suspension (Pardon) Reform

To provide an update on the review of the record suspension program.

• Our Government remains committed to a pardons system that is fair and proportionate and that achieves its goal of allowing people living crime free to become fully contributing members of society.

• Our Government is working to review changes made to our criminal justice system and sentencing reforms over the past decade.

• This review includes changes to pardons and we are currently reviewing the input from our public consultations.

• Protecting Canadians is our number one concern and we will do this by implementing evidence-based criminal justice policies that are proven to keep our communities safe.

If pressed on Cannabis Pardons:
• On August 1, 2019, Bill C-93, An Act to provide no-cost, expedited record suspensions for simple possession of cannabis, came into force.

• This legislation amended the Criminal Records Act to provide an expedited record suspension process for those convicted only of simple possession of cannabis. These changes waive record suspension application fees and wait periods for those previously convicted only of the simple possession of cannabis.

If pressed on M-161:
• The Government is committed to using the Committee’s recommendations to inform our ongoing efforts to improve the record suspension system.

The Criminal Records Act (CRA) has undergone significant legislative change between 2010 and 2012. These changes had the effect of limiting access to pardons, currently known as record suspensions, by lengthening waiting periods before individuals could apply, making some offences ineligible for pardons, introducing new criteria as part of the application review, and changing the term from ‘pardon’ to record suspension. In addition, the application fee was increased from $50 (fifty) to $150 (one hundred and fifty) in 2010, and then to $631 (six hundred and thirty one) in 2012 to reflect full-cost recovery.

The 2010 and 2012 amendments to the CRA were applied to any person who had not yet applied for a pardon, including retrospectively to those who had already committed a crime. In response to litigation (Chu), on April 19, 2017, the Supreme Court of British Columbia ruled this retrospective application violated the Charter, as increased waiting periods and new eligibility criteria were held to constitute an increase in punishment. The Government did not appeal that decision. The Attorney General of Canada conceded in a similar case (Charron and Rajab) in Ontario in June 2017. Similar litigation is pending in other provinces, as well as one case in the Federal Court, where Canada conceded to the unconstitutionality. The Federal Court decision has been under reserve since April 2019. If successful, the eligibility period and criteria for obtaining a record suspension would be applied consistently across Canada.

In 2016, the Minister of Public Safety and Emergency Preparedness commented on the changes made to the pardons program, and the government subsequently committed to reviewing that program. In May and June of 2016, the Parole Board of Canada conducted online consultations on the Record Suspension Program User fee. Most respondents found the current application fee ($631) to be a barrier to applying for a record suspension. In November and December of that same year, the Department of Public Safety consulted with stakeholders and partners on the review of the Criminal Records Act and with the public through online consultations. In general, the process for obtaining a record suspension was found to be complex, and waiting periods for applying were found to be too long.

Pardons for Cannabis

On August 1, 2019, Bill C-93, An Act to provide a no-cost expedited record suspension process for simple possession of cannabis, came into force. The Act modifies the Criminal Records Act to waive record suspension application wait periods and application fees for those convicted only of simple possession of cannabis. The Act creates an administrative review process where the application is considered by a Parole Board of Canada (PBC) staff member as opposed to a discretionary review by PBC Board Members. The record suspension will be ordered so long as the individual can show that their only convictions are for simple possession of cannabis.

The Act also offers recourse for those with other convictions on individual’s record by ensuring that simple possession of cannabis convictions will not impact a person’s ability to obtain a record suspension. That is, simple possession of cannabis will not extend a pardon ineligibility period and will not be considered in reviewing good conduct or disrepute. Finally, the Act ensures that the inability to pay a fine associated with a conviction for simple possession of cannabis will not prevent someone from accessing a record suspension. There is no longer a requirement to pay these fines before applying.

Report on M-161, Record Suspension Program

In December 2018, the Standing Committee on Public Safety and National Security (SECU) released its thirtieth report on M-161, Record Suspension Program. This report listed seven recommendations and observations in support of record suspension reform, including, but not limited to, reviewing the record suspension process, examining record suspension in other jurisdictions, considering regulating third party entities, and examining a mechanism to make record suspensions automatic in specific circumstances. The Government tabled its response to SECU on April 10, 2019, reaffirming its commitment to help reduce barriers associated with having a criminal record and addressing the issues of accessibility, terminology, and automatic record suspension.

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