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.
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.