The recommendations of a parliamentary committee looking into the criminal record pardon system is a microcosm of a government that has come up short on their promises for criminal justice reform, say criminal defence lawyers.
The Standing Committee on Public Safety and National Security requested the government’s response to its seven recommendations, which included studying the pardon systems of other commonwealth countries, reviewing the complexity of the process to make it more accessible and the possibility of instituting a mechanism to make pardons automatic “in specific and appropriate circumstances.”
The committee recognized a criminal record’s inhibition on employment, travel, education and child care and that the fee structure should be reviewed as the $631 fee is a barrier for the poor.
Entering their fourth year in power, with a fall election, a call for further review and no action on reversing or adjusting their predecessor’s reforms amounts to failure, says Michael Lacy, partner at Brauti Thorning LLP and president of Ontario’s Criminal Lawyers’ Association.
“The Liberal government has fallen far short of their commitment to revisit oppressive legislative changes enacted by the predecessor government arising from the “tough on crime agenda,” Lacy told Legal Feeds via email.
In March 2012, the Stephen Harper Conservative government passed Bill C-51, which increased wait times for those seeking pardons, from three to five years for summary offences and five to 10 years for indictable offences. They also excluded some offences from ever qualifying for a pardon and changed the name of a pardon to “record suspension.”
Lacy says that despite the legislation being ruled unconstitutional in B.C. and Ontario, it remains unchanged and the extended wait periods and increased fees create “unnecessary and unfair” barriers to those convicted and moving on with their lives.
The then federal government’s changes retroactively extended the amount of time that those already having served their sentence would have to wait for a pardon. That part of the law was struck down in Ontario and B.C. after it was challenged on constitutional grounds as essentially increasing punishment for those already sentenced for their crimes.
Michael Spratt, partner at Abergel Goldstein & Partners LLP in Ottawa, and a certified specialist in criminal law, brought the case in Ontario, working in conjunction with the lawyers bringing the challenge in B.C.
“It's been two years since those cases concluded and the government hasn't done anything,” he says. “So what it means is that this government is just fine with unconstitutional pardon legislation.”
The Liberals had ample opportunity to change the law and not doing so means marginalized and impoverished people are prevented from participating meaningfully in their communities, Spratt says.
“It is disgusting that this government has not taken action. And it is repugnant to basic principles of fairness that their solution and what this committee has recommended is to further study this issue and to twiddle their thumbs.”
A spokesperson from Public Safety Minister Ralph Goodale’s office told Legal Feeds in an emailed statement that they are reviewing the report and will respond “in due course.”
“We recognize that pardons are the final step in the rehabilitation process for people who have served their sentence and are living law-abiding lives, and we share the committee's unanimous view that accessibility is an important part of the pardons system.”
The missed opportunity on the pardon system, along with failing to eliminate mandatory minimums is ironic given the action the Liberals have taken on justice reform, says criminal defence specialist Daniel Brown of Daniel Brown Law in Toronto.
“Instead the government pursued relatively rare — what they refer to as ‘zombie laws,’" he says.
The Liberals nixed several criminal code violations including challenging someone to a duel, the possession or production of crime comics, publishing blasphemous libel, practising witchcraft and advertising a reward for the return of stolen property with the promise of “no questions asked,” Brown says.
“These were the offenses that the government sought to address rather than addressing the things that are impacting people's daily lives,” he says.
Mandatory minimums have been ruled unconstitutional by the courts and so along with the pardon system, Brown says these changes would have been easy to make.
“We thought these were always the low hanging fruit,” he says.
Having a $631 fee to obtain a pardon creates a two-tiered justice system by making the system so much more onerous for those living around or below the poverty line, compared to those with high incomes, says Sarah Leamon of Sarah Leamon Law Corporation in Vancouver.
Leamon suggests instituting a program where if a person qualifies for legal aid, they also qualify to have their fee waived.
“It's completely unfair for us to have a system that allows people to access a pardon when they have the monetary means to do so, but does not make the same allowance for an individual who doesn't have that those monetary means,” she says.
Leamon also takes issue with the committee’s suggestion for an automatic pardon for some types of criminal offences, saying such a mechanism would be blind to nuance and the diversity of circumstance within particular criminal code violations.
“It's not always so black and white. An assault and simple assault can range from maybe just like grabbing somebody by the shoulder all the way up to punching them in the face,” she says. “I'm not sure that we can be treating all things alike.”
In October 2018, Public Safety Minister Ralph Goodale announced his government planned on providing pardons for all those convicted of possessing up to 30 grams of cannabis with a waive of the $631 fee. Leamon also wants to see pardons extended for those convicted of all types of cannabis-related offences.
She also sees a glaring hypocrisy in the fact that pardons are being discussed for those convicted of cannabis-related offences, but there is no movement to pardon those convicted of sex work, five years after certain prostitution laws were found unconstitutional by the Supreme Court of Canada in Canada (Attorney General) v. Bedford.
“We're excited about the cannabis pardons, but no one's ever really talked about the sex work pardons,” she says.