BRIEF TO THE
STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS
HOUSE OF COMMONS
40th Parliament, 3rd Session
AN ACT TO AMEND THE CRIMINAL RECORDS ACT
Presented by the Canadian Criminal Justice Association
June, 09 2010
Background of Canadian Criminal Justice Association
The Canadian Criminal Justice Association (CCJA) welcomes the opportunity to present this brief to the Standing Committee on Justice and Human Rights regarding Bill C-23, An Act to Amend the Criminal Records Act (or Eliminating Pardons for Serious Crimes Act). The CCJA has some concerns regarding C-23. We outline them here and look forward to your questions and comments.
The CCJA is one of the longest serving non-governmental organizations of professionals and individuals interested in criminal justice issues in Canada, having begun its work in 1919 and having testified before this committee on numerous occasions. Our association consists of nearly 800 members and publishes the Canadian Journal of Criminology and Criminal Justice, the Justice Report, the Justice Directory of Services, and the Directory of Services for Victims of Crime. We also organize the “Canadian Congress on Criminal Justice” every two years.
History & Relevant Issues Pertaining to the Legislation
The Criminal Records Act (CRA) was introduced as a private member's bill and enacted in 1970. The purpose of the Act was to enable those who could demonstrate that they had successfully reintegrated society to mitigate the stigma associated with a criminal record. It was designed to alleviate some of the "...legal, economic, and social limitations associated with possessing a criminal record." (Wallace-Capretta, 2000, 3)
Obtaining a pardon was not easy prior to the Act being amended. In the first place, it involved rather extensive RCMP investigations which could pose further embarrassment to the requestor. In addition, being pardoned did not preclude persons from being asked whether they had ever been convicted of a crime.
In its original form, the Criminal Records Act led to a severe backlog of applications due to the extensive process of investigation, and further delays occurred between the recommendation from the National Parole Board and the decision by the Cabinet to grant or not, a pardon.
In 1985, enactment of The Human Rights Act provided protection from discrimination to those who had received a pardon for a criminal conviction. Henceforth, employers were not permitted to probe individuals as to their former conviction. Rather, they are only permitted to ask "Do you have a criminal record for which you have not be pardoned?", to which a pardonee may answer "no".
In 1992, the Act was amended in order to increase efficiency in terms of costs and the delays due to the backlog. First, it gave the National Parole Board the authority to make decisions on pardons, rather than recommending pardons that then had to be approved by Cabinet. It also automatically removed certain criminal record data from police databases. This was done for absolute and conditional discharge cases in which the person had remained conviction-free for one year or three years respectively.
In 2000, further changes were brought to the Act, with respect to the Vulnerable Sector. This Bill, C-7, An Act to Amend the Criminal Records Act, ensured that measures be instituted to protect this sector by enabling the RCMP to "flag" those persons who had obtained a pardon and who had been convicted of a sexual offence. A schedule of offences was included that covered sex-related crimes.
Between 10 and 15% of Canadians have criminal records, and while most applications are successful, only about 11% of all persons with a criminal record ever apply for a pardon. Since the enactment of the CRA in 1970, over 400,000 persons have received pardons and of these, 96% are still in force, demonstrating that the vast majority of recipients remain crime-free in the community.
Current Proposal (Bill C-23):
Bill C-23 proposes a number of changes. In the first instance, it replaces the term "pardon" with the term "record suspension"; it grants "absolute discretion" to the National Parole Board to "order, refuse to order, or revoke" a record suspension; it aims to restrict the type of offender who may be eligible for a pardon (those in Schedule 1 involving children), and introduces a 3- strikes provision, meaning that a person convicted of three criminal offences would no longer be eligible to apply; and the Bill greatly extends the waiting periods, from three (3) to five (5) years for summary offences and from five (5) to ten (10) years for indictable offences.
When considering such measures, the Committee should bear in mind a number of facts. It is worthwhile remembering that in the past five years, 86% of indictable offences pardoned fell into the General Category including Fraud over $5000, Break and Enter, Keep Common Gaming House, and Possession of a Weapon. In contrast, only 9.5% of indictable offences pardoned were for Serious Offences. Furthermore, sexual offences which used to be in the category of "serious offences" are in a distinct category since 2008.
According to Ruddell and Winfree (2006), "the cumulative 96.82% success rate of those individuals pardoned suggests that setting aside criminal convictions is an overwhelmingly successful practice." (461) According to these authors, "...the ability to grant offenders a pardon may be an important step in restoring a person's self-perceptions as a non-offender and, in turn, may actually increase public safety in Canada by reducing recidivism within this population." (454)
Persons convicted of the sexual offences in Schedule 1or 2, who have served their time and have reintegrated the community, need to be able to rebuild their lives, no less than any other ex-offender . A pardon or record suspension facilitates obtaining paid work and reduces unnecessary stigma in other facets of life. While we share the revulsion with respect to behaviour of this type, we believe that public safety is not enhanced when these individuals are further stigmatized, since this leads to a situation of despair, and one that may actually encourage recidivism. We also take the position that the precautions taken with respect to the Vulnerable Sector are a good means to keep vulnerable populations safe from harm.
1. The CCJA is in favour of replacing the term "pardon" by the term "record suspension". In our estimation, the law was not put in place so much as an act of forgiveness than as a way of enabling rehabilitated offenders to reduce the stigma associated with a criminal record, thereby providing a better opportunity to re-integrate society. Recent media coverage aptly demonstrates the problems with optics that the term "pardon" engenders.
On the other hand, we caution legislators to exercise moderation when it comes to this Bill. The extensive media coverage of the Graham James and Karla Homolka cases may lead to repealing parts of the law that serve the greater public purpose, that is, enabling rehabilitated offenders to reduce the stigma that is associated with their criminal record. To our knowledge while Karla Homolka is eligible for a pardon, she has not requested one. Public hysteria over a possibility that has not yet come to pass is not a good reason for changing the law. While the offences listed in Schedule 1and 2 are indeed heinous, they are formally punished at the time of sentencing. (It is important to note that the police have at their discretion the capacity to ‘warn’ the public should a sex offender be placed on parole and should the offender, in their judgment, pose a risk). Once the offender has served his or her time, we do not agree that additional stigmatization serves any purpose and indeed we believe it compounds the difficulties associated with finding work and shelter. Section 11 (h) of the Charter of Rights and Freedoms reminds us that any person charged with an offence, once the sentence for which he or she has been convicted has been served, should not be tried or punished for it again. The reality is, of course, that after conviction as a sex offender the offender carries the stigma for the remaining years of his life. The CCJA believes that the amendments to the current Act with respect to the Vulnerable Sector ensures that minors and other vulnerable populations are protected from having to receive services from such ex-offenders.
2. Further, we do support article 4.1(3) which is a far better response to the rare cases such as Homolka and James which create such great public outrage.
(3) In determining whether ordering the record suspension would bring the administration of justice into disrepute, the Board may consider
(a) the nature, gravity and duration of the offence;
(b) the circumstances surrounding the commission of the offence;
(c) information relating to the applicant’s criminal history and, in the case of a service offence, to any service offence history of the applicant that is relevant to the application; and
(d) any factor that is prescribed by regulation. (Bill C-23, Art. 4.1 (3))
In our view the judicious use of this article by the National Parole Board will better resolve the issue currently before the Government, rather than a wholesale dismantling of the very positive legislation that currently assists community reintegration and ultimately public safety.
3. We disagree with banning three strikes offenders from receiving a pardon or record suspension. If the criminal justice system believes in the capacity of the system to assist in the rehabilitation of offenders, then such persons must be able to prove that they have corrected their behaviour, reintegrate society, and lead crime-free lives. Those who manage to turn their lives around, even after many years of struggling to remain within the law, should have the opportunity to have their record suspended. In addition, given that many crimes are committed by young persons, it would be wise not to condemn a person eternally for his or her mistakes during youth.
4. Similarly, we are opposed to extending the wait times from three (3) to five (5) years for a summary conviction offence and from five (5) to ten (10) years for an indictable offence. The National Parole Board statistics show that the current wait times are sufficient, given that such a high proportion of those receiving record suspensions remain crime-free. There is no indication that longer wait times will benefit society or the offender. Pardon statistics clearly suggest that the current wait times do not endanger society. Seeking employment and housing as an ex-offender is already sufficiently challenging without adding to the barriers by extending waiting periods far longer than is required.
In our estimation, the Bill before the House has some merit. It proposes to alter the term from "pardon" to "record suspension" which more adequately matches the intent of the Bill. Secondly, granting the National Parole Board the means to contend with grievous cases like James and Homolka should put Canadians at ease. However, the extensive restrictions analyzed above (Offences as per Schedule 1 and 2; 3-strikes provisions; and doubling wait times) are not in line with Canadian rehabilitative and societal integration philosophies. Rather than dismantling a progressive law that has merit and which has proven effective, , parliamentarians should consider retaining the status quo with respect to who can apply, and bolster the National Parole Board's ability to exercise discernment in granting record suspensions when the gravity of the offence so warrants.
Should the committee desire more information on pardons, or feel the need for further study of this issue and its alternatives, we would be happy to assist.
References and Supporting Documents
Bill C-23: An Act to amend the Criminal Records Act. 1st Reading, May 11, 2010, 40th Parliament, 3rd Session, 2010. Ottawa: Public Works and Government Services Canada, 2010.
Ruddell, Rick and L.Thomas Winfree Jr. (2006). "Setting Aside Criminal Convictions in Canada: A Successful Approach to Offender Reintegration" in, The Prison Journal, 86 (452-469).
Wallace-Capretta, Susanne (2000). Pardoned Offenders in Canada: A statistical Analysis. Ottawa: Solicitor-General.