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Bill C-93: An Act To Provide No-cost, Expedited Record Suspensions For Simple Possession Of Cannabis And Bill S-258: An Act To Amend The Criminal Records Act And To Make Consequential Amendments To Other Acts

BRIEF TO

The Honourable Ralph Goodale, Minister of Public Safety and Emergency Preparedness Canada on

Bill C-93 (An Act to provide no-cost, expedited record suspensions for simple possession of cannabis)

– and –

Bill S-258 (An Act to amend the Criminal Records Act and to make consequential amendments to other Acts)

42nd Parliament, 1st Session


Submitted by the Canadian Criminal Justice Association

May 2019


Background of the Canadian Criminal Justice Association (CCJA)

The CCJA is one of the longest serving non-governmental organizations of professionals and lay-persons interested in criminal justice issues in Canada, having begun its work in 1919 and having testified before various Parliamentary committees on numerous occasions. Our Association consists of approximately 700 members from across the country and publishes the Canadian Journal of Criminology and Criminal Justice, and the Justice Report. We also organize the Canadian Congress on Criminal Justice every two years. This year is our 100th anniversary.

Purpose of Brief

To provide a comparative analysis of existing and proposed regimes for the suspension or expiration of criminal conviction records. The comparison of proposed regimes will be between the federal government’s Bill C-93 and Senator Kim Pate’s Private Members Bill S-258. The existing regime in Canada and internationally will also be reviewed.

 

Bill C-93

An Act to provide no-cost, expedited record suspensions for simple possession of cannabis

Purpose of Bill: On March 1, 2019, Bill C-93, An Act to provide no-cost, expedited record suspensions for simple possession of cannabis, had First Reading in the House of Commons.

This proposed enactment would amend the Criminal Records Act to, among other things, allow persons who have been convicted under the Controlled Drugs and Substances Act, the Narcotic Control Act and the National Defence Act only of simple possession of cannabis offences committed before October 17, 2018 to apply for a record suspension without being subject to the period required by the Criminal Records Act for other offences or to the fee that is otherwise payable in applying for a suspension.[1]

Existing law: pursuant to the Criminal Records Act, R.S.C., 1985, c. C-47, people who have been convicted of a criminal offence and have completed their sentence and demonstrated that they are law-abiding citizens for a prescribed number of years, upon application can have their criminal record kept separate and apart from other criminal records. A “pardon” removed a person’s criminal record from the Canadian Police Information Centre (CPIC) database.

Prior to 2012, offenders who had been convicted of a summary conviction offence would be eligible to apply for a pardon if they had remained crime free for at least three years past the expiration of their sentence. In the case of a conviction for an indictable offence the waiting period was five years.

Between 2010 and 2012 the Harper government’s criminal justice agenda included significant revisions to the pardon process. The application fee to the Parole Board of Canada increased from $50.00 to $631.00.  The waiting times post sentence for summary convictions increased from three to five years and for indictable offences from five to ten years. Further restrictions were put in place with respect to the nature of the crime underlying the conviction. The term “pardon” was changed to “record suspension”. Since these amendments in 2012, court decisions in British Columbia and Ontario ruled that said amendments were in some respects unconstitutional. As such in these two jurisdictions there is a reversion to the prior “pardon” regime but the eligibility criteria turns on the date of the conviction and sentence between 2010 and 2012 making the process exceptionally complicated and far from universal.

Strengths and Weaknesses of Bill C-93: While the proposed amendment is a step in the right direction, it is a piecemeal reform that does very little in providing relief against the harsh amendments to the pardon regime that took place in 2012. The process still requires an onerous application process to the Parole Board of Canada which includes collecting police background checks from every jurisdiction in which the applicant has lived for the ten-year period prior to the date of the application. There are also ineligibility criteria relating to the existence of other offences that have nothing to do with the conviction for simple possession of marijuana. A similar proposal in 2018 in California to clear cannabis-related convictions failed, in that, of the estimated 9,400 qualified individuals who met the criteria for application, only 23 had actually applied. People simply didn’t take advantage of the scheme because the process was daunting.[2] This has led to the introduction of an automatic expiry regime that has resulted in over 8,000 convictions for possession of marijuana being removed from individual records.

 

Bill S-258

An Act to amend the Criminal Records Act and to make consequential amendments to other Acts

Purpose of Bill: Bill S-258 was introduced by Senator Kim Pate with First Reading in the Senate on February 20th, 2019. Bill S-258 proposes three key changes to The Criminal Records Act as follows:

  1. Records will “expire” rather than just be suspended;
  2. The process will be automatic as a function of the passage of time therefore eliminating the lengthy application process to the Parole Board of Canada;
  3. There are no application fees thereby eliminating the current prohibitive cost to offenders.

This new “expired conviction regime” proposes that the rehabilitation period post completion of sentence will be two years for a summary conviction offence and five years for an indictable offence, which is much more in line with the provisions of the Criminal Records Act prior to 2012. The Bill has further provisions providing for discretion by the Parole Board to advance the record expiry if the waiting period prevents an offender from enrolling in or pursuing an educational or vocational program, the offender has been of good conduct and the advance of the record expiry will sustain an offender’s rehabilitation in society. Importantly, once a record expiry exists, the record shall be removed from CPIC with the exception that the name, date of birth and last known address of a person in respect of which a record expiry has occurred may be disclosed to a police force if a fingerprint, identified as that of the person, is found at the scene of a crime. There are also schedules to the proposed amendment of the Act setting out offences to which the record expiry will not have effect.

To this we can add the comments to the press by Senator Pate:

“Criminal records perpetuate stigma, poverty and marginalization, and prevent access to what people need for successful community integration, from housing and employment to education and volunteer opportunities. That punishes not only individuals with records but also their families-especially their children-and prevents these individuals from contributing meaningfully to their community”. Policy Options, March 19, 2019- Kim Pate.

Strengths and Weaknesses of Bill S-258: In our view, there are no inherent weaknesses in this proposed amendment to the Criminal Records Act. Its fundamental strength lies in the automatic expiry of a criminal conviction based upon the passage of time having regard to the nature of the offence. The provisions of the Bill live up to the sentiments of Senator Pate expressed at Second Reading debate on March 19th, 2019:

“Desistence research makes clear that after a number of crime-free years, those with a past conviction are no more likely to be convicted again than those who never been criminalized. Over the past 15 years, 95% of those who received pardons or record suspensions have remained crime free. This is not only a strong endorsement of the value of a clean slate in promoting safe successful community integration and positive contribution to one’s community, it also reflects research that the high success rate of pardon and record suspensions recipients is not the result of stringent review criteria, exorbitant fees or longer wait periods. Rather, it is exactly what we should expect from those several years following conviction and sentence expiry. When a person no longer poses a greater risk than anyone else and when they have already completed the sentence that a court imposed to hold them accountable, there is simply no justification for continuing to burden them with a record nor for requiring an application to lift that burden.”

This is all the more persuasive when its provisions are compared to international regimes that also rely upon the passage of time for an automatic removal of a conviction.

International Regimes: The United Kingdom has in place a “spent conviction scheme” with the provision of The Rehabilitation of Offenders Act, 1974. Originally all persons found guilty of a crime and receiving a non-custodial sentence, or a custodial sentence no longer than thirty months were eligible to benefit from the Act’s provisions. The offender must have completed the rehabilitation period prescribed for the sentence without being convicted of an indictable offence during that period. If he/she was successful, the conviction became “spent.” Rehabilitation periods ranged from six months to ten years. In essence, the rehabilitated offender did not have to disclose his or her spent conviction if questioned about it. Evidence of the spent conviction cannot be introduced in proceedings before a judicial authority which includes civil trials and labour arbitrations but does not include criminal trials. Importantly, employers cannot discriminate against rehabilitated offenders on the basis of spent convictions.

However, the Secretary of State publishes an extensive list of professions and proceedings which stand as exceptions to the provisions of the spent regime. Offenders who apply for or engage in one of these excepted professions or proceedings do not have the right to seal the conviction. These exceptions tend to identify occupations that deal with close encounters with young and vulnerable people; involvement with the administration of justice; national security; and where access to drugs is available.

There have been numerous amendments to the legislation since its enactment. The current provisions that exclude sentences from the availability of this rehabilitative scheme include a sentence of life imprisonment; a sentence of more than forty-eight months in custody; and a sentence of preventive detention. Within this regime a custodial sentence of six months or less has a rehabilitation period of twenty-four months after the completion of the sentence; a custodial sentence of more than six months and up to thirty months has a rehabilitation period of forty-eight months after the completion of the sentence and a custodial sentence of more than thirty months and up to and including forty-eight months has a rehabilitation period of seven years after the completion of the sentence.

In many other countries and some American states there is a staggered “good behaviour” spent regime linked to the length of the sentence. In New Zealand the eligibility period is seven years post sentence without further convictions although the eligible offences exclude any that attract a custodial sentence. The Australian federal scheme allows for a conviction to be spent if an offender was not sentenced to imprisonment for more than thirty months and it has been ten years from the date of the conviction [not the sentence]. California has now enacted legislation that has expunged over 8,000 cannabis related convictions without the necessity of an application. A Bill is currently working its way through the California state legislature that will likewise expunge the convictions automatically for a great many misdemeanor and lower-level felony records no matter what the nature of the crime. Again, the expungement will be automatic.

Recommendation:

If we accept that someone has served their sentence, anything other than expiry of their criminal record continues the punishment and stigma. As such, the CCJA endorses the approach to the expiry of criminal convictions as set out in the Private Member’s Bill S-258 put forward by Senator Kim Pate.

At this time, our primary recommendation is to incorporate the process of Bill S-258 into that of Bill-93. While we applaud the federal government’s initiative in eliminating the costs associated with an application to the Parole Board of Canada to obtain a record suspension, the process remains cumbersome and will likely be highly ineffectual. We therefore recommend that the government amend Bill-93 to allow for the automatic suspension without application for all convictions for simple possession of marijuana recorded on or before October 17th, 2018.

We further recommend that the government consider broadening this approach beyond convictions for simple possession of marijuana to include, in future legislation, all appropriate offences, similar to what is proposed in Senator Pate’s Bill S-258.


[1] “Summary” accompanying text of Bill C-93.

[2] “San Franciso Erased 8,132 Pot Convictions At Once. Canada is Another Story” Politics, March 12th, 2019; By-line: Samantha Beattie.

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