Update: The Ontario Supreme Court has made a similar decision meaning both BC and Ontario residents can apply if they meet the criteria. Contact us to discuss your situation.
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If you were planning on applying for a Canadian pardon at the beginning of this decade, you may have been caught in new legislation. This legislation made it more difficult for people with criminal records to receive a pardon. One part of these changes, pardon wait times, has been declared as unconstitutional in a British Columbia court. Two of the biggest changes were:
- Pardon wait times were increased
- The fee went from $150 to $631
These changes were introduced in 2010 and came into effect in March 2012. As a result, many people who thought they were eligible suddenly couldn’t apply for years. This is because the Conservative government of the time made the changes retroactive. In other words, they applied it to everyone with a record.
Why was this unconstitutional?
The pardon wait times are the part of the legislation that has been called unconstitutional. The government increased the wait times from:
- Three years to five years (Summary)
- Five to ten years (Indictable)
Justice Heather MacNaughton of the BC Supreme Court said that this decision had the effect of extending the “punishment” of the individual who wishes to apply for a pardon. This makes it unconstitutional, because you cannot increase a sentence after a conviction. For example, if a government imposed a two-year minimum sentence for a crime, they cannot extend the sentence of everyone who received a one-year sentence prior to the law passing. They could not go out and find those people who served a shorter sentence and put them back in jail. They could only apply it to new sentences.
Who does this decision help?
Right now, it’s possible that BC residents who were affected by the change can apply. However, the Parole Board has not made any official policy announcements. We cannot tell you with certainty that your application will be accepted if you were on the 10-year waiting period and want to apply sooner.
However, if you are a BC resident, you may be able to submit an application if you have served more than five years of the waiting period for an indictable offence.
If you had a summary offence, you can apply three years after completing your sentence.
What’s next for pardon wait times?
The next case to be decided is an Ontario case, where a similar argument is being made in the case of two Canadians who saw their wait times extended. In this case the government is challenging the unconstitutional argument. They say this is not the extension of a “punishment” but simply an administrative by-product of having a record.
According to the BC judge, this is false, “A criminal record is ‘punishment,” she wrote in her decision. “It encompasses all of the traditional attributes of punishment: deprivation of liberty; penalty or unpleasant consequence; and stigmatization or public condemnation.”
The case in British Columbia is not binding on the Ontario court. However, the judge may find it persuasive. Similar to the case in BC, the new case may only open the application process up to Ontario residents who would then be eligible. However, it may also be enough to encourage the government to act sooner rather than later on changing the law altogether. It could also wind its way to the Supreme Court of Canada in which case a decision could be made that would change the law for everyone, but that could take some time.
If you are not sure if you are qualified for a Record Suspension, we can help. Call us today for a free consultation at 1-866-972-7366.
I totally agree, every year that the pardon is being extended it’s about 25,000$ average Loss in Income.
If people thinks it’s hard to get a high paying job with pension and benefit try with a Drinking and Driving charge from 12 years ago. You cannot be picky, even if you are the top 10% elite Engineer you are restricted to small company who cannot afford doing a background check. Forget about any government Job or Any Fortune 100 employers. Overall Just for the employment alone each person who ever had a strain in the past, I mean all people does but we are talking about the one who were caught by police. about 100,000 per year in Canada are being pay much less and therefore pay less taxes and also there skills cannot be put to good use.
Second point, The Full extend of the Law, The government will punish you and ask other countries to do the same forever!You made a mistake once, got caught it was stupid you were young it took maybe 5 min of stupidity maybe you were drunk anyways…. Here are the list ( I mean huge list of the punishment) That is not an eye for a eye. This is much more an eye for both your eyes, you limbs you children’s limbs eye and all you family down to the dog being punish.
1. Humiliation
2. Fees, { Lawyers, fine, auto insurance, Breathalyzer fee + more Humiliation and shame, US Waiver 1000$ US per year, Medical assessment, Psychological assessment 1000$, Program from Auto to follow and fees, 1000$ fee for Pardon and so on…. about 10K total. + year US waiver of 1K if you are 20 year old and live until 100… 80 years x 1000$ = 80K
3. Unemployment and no benefit, or small job to survive
4. Cannot adopt any children
5. Cannot do any volunteer work
6. NO Travel to USA (BAN FOR LIFE)
Your personality will change being more angry person. Seeing people texting and driving and risking only a 500$ fine although it has proven to kill more people than driving under influence. They are getting away with it anyways and will have a great life.
While you wait for 3-5 Years to finally put this all behind a new government gets elected and change the law just while you are trying to get your Document from the RCMP to apply to Pardon… the RCMP took 1 year to give the document they were Holding all application until the new law pass…. Then guess what… Wait another 5 years!!!!! Plus all probation time e.g: 18 month that’s 10 Years + 18 Months + 1 – 2 years to process the Pardon if accepted.
Hi B, Thank you for sharing your thoughts. Please, consider signing our petition asking the federal government for a fairer pardon system. https://www.change.org/p/1-in-8-has-a-criminal-record-let-s-lift-the-burden-and-make-record-suspensions-free-and-accessible-for-law-abiding-canadians
Already did last time, spoke with Ralph Goodale safety minister, he agree to look into it but the priority was to focus on the gouvernment selling drugs to teens 18 and up.
You said “Two of the biggest changes were:
Pardon wait times were increased
The fee went from $150 to $631”
There was an even bigger change that involved people with more than 3 indictable offences being prohibited for life from applying. That should not have been retroactive!!!! And is unfair, as people do one thing wrong and end up being charged for multiple things ; e.g. accepting bad paper and passing it on to a bank knowing (or ought to have known) it was false: they charge you for each piece of paper as an offence… it looks bad that the file involved 20 documents and 20 charges, each one is a conviction…. had one known a plea would have been structured or a fight been made to reduce it to 3. They have screwed me on that point. Please see if there is recourse for me. I have already talked to you and you said you will let me know. I really think you need to spear-head a campaign to fight this. I am willing to make a financial contribution to addressing this matter should you wish to fight this or please pass on my contact information to someone that will fight it.
Hi MS,
Thank you for sharing your thoughts. Unfortunately, the recent court decisions would not help in this case. You would need to get a lawyer’s opinion about challenging the constitutionality of your case. If you live in BC or Ontario, you might try one of the lawyers who challenged the wait time law. Eric Gottardi is the BC lawyer and Michael Spratt is the Ontario lawyer.
HI MS,
We received an email from the Parole Board saying they are processing applications for persons living in Ontario and BC with convictions prior to 2012 under the old rules. So, if a person lives in one of these provinces and has convictions dating from before the law change in 2012, they can apply even if they were previously made ineligible by the law change.
Hi,
A decision has already been made in Ontario- the judges declaring the retroactive pardon legislation, unconstitutional. The government has not challenged this decision.
Hi Kelson, Yes, you are right. If you are an Ontario resident you may also be able to put forward an application if you meet the criteria under the old rules.
What if one was put in a predicament where they wrongfully accused of a crime they did not commit?
I only plead guilty so I didn’t have to spend six months to a year behind bars.
I did not commit the crime but the individual that claimed I did gave a false police report.How do I erase this wrongful conviction so I don’t have to wait for another three years as well as the waiting time for processing,fees and paperwork?
Hi Simon, If you feel you were wrongfully convicted you should consult a lawyer. We only handle Record Suspensions, which requires some admission of responsibility on the part of the applicant.
Record suspension and then after five years wipe the slate clean , meaning erase the conviction completely . That record suspension is really a joke , since everything is listed and available to see by employers , they still refuse to employ people who are granted a pardon so a complete erasing would be a more fair solution since one has a conviction free slate . A pardon should be granted one completion of the sentence , and a max of five years for the erasing of the record .
Hi Bill, If you have received a pardon your criminal record will be kept separate from other records in a database that can only be accessed with permission from the Public Safety Minister. It is possible that local police forces may have information related to incidents that could show up in a police check. In this case, you should ask for a purge. Please call us for a free consultation if you think that your information is still being released by local police. In most provinces it is not legal for employers to discriminate on the basis of a pardoned record. If this has happened to you, you might want to contact a lawyer.
Wow lots of pepole affected. I did wait 10 years plus 18 monts (probation and fees paid) I did my application waiyed 1 year for Rcmp file after aending finger prints got court duments and so on send my application in nov. 2016 now July 2017 srill no news. Meanwile pepole do lawsuit in my province Ontario to.skip the line…but I waited my original was refused because the new wait time was just put in place.
Lets sue the gouvernment huge class action lawsuit !!! Its pay back time. We did our time already been punish and ban from doing cruise in the USA and carabean for life. Today im turing 33 still have this shit from my 19-20 years old years of being stupid a drunk with freinds at bars. Who didn’t … Canada trows the first rock!!! Thanks to Harper.