Record Suspensions (pardons) are a federal program, which means that people across the country have a right to access them. However, two recent court challenges have created an unequal situation for people living in provinces other than British Columbia and Ontario where unfair pardon laws were challenged.
AllCleared has been an advocate for people with criminal records since 1989. We are concerned that residents of eight provinces and three territories are, in effect, being subjected to rules that have been deemed to be unconstitutional. The Charter applies to all Canadian citizens and they should all be treated the same.
How did the unequal situation happen?
In 2012, the government of Canada made it harder to apply for a pardon by drastically increasing wait times. A person with a summary offence must now wait five years to apply. A person with an indictable offence must wait 10 years. This has increased the difficulty of finding work and being involved in the community for thousands of Canadians. In addition, they added tougher criteria and made some people ineligible.
However, last year, three citizens challenged the retroactive changes in superior courts in BC and Ontario. As a result, two judges declared the retroactive nature of the changes unconstitutional because it extended the “punishment” of the offender after sentencing. This is contrary to the Charter of Rights and Freedoms.
As a result, individuals in these two provinces who were convicted prior to 2012 are able to file under the old wait times of three and five years and some people who are no longer eligible can apply.
What is AllCleared doing about unfair pardon laws?
AllCleared requested a legal opinion on this unequal situation in order to better advocate on behalf of Canadians. We learned that it is “legally unacceptable” for a law within the jurisdiction of the federal government “to be inapplicable in one province and in force in all of the others” (Hendrick c. Québec (2004), 238 DLR (4th) 577 at para. 28, and Dunbar v. Yukon Territory, 2004 YKSC 54 at para. 22).
In other words, you can’t have a federal law that only applies to people in two provinces. We wrote a letter to the Minister of Justice and Attorney General Jody Wilson-Raybould and the Minister of Public Safety Ralph Goodale about our concerns. They advise us that there is no plan to revise this inequitable situation between provinces before they legislate their own pardon reforms.
AllCleared believes that those in the other provinces and territories should be allowed to file their applications if they were convicted prior to 2012 in light of the legal research. These are individuals who have been living a law-abiding life for several years in the hopes that they can seal their records and move forward with their lives.
A pardon is a rehabilitative tool that motivates people to succeed. Unfair pardon laws that hinder the ability of people to find work can be disheartening for many, especially if they are applied unequally. The Parole Board of Canada has a process in place for reviewing 2012 convictions. There is no reason that people across the country should not benefit from these two court rulings.
What can you do?
If you agree, you could write a letter to the Minister of Justice and the Minister of Public Safety. There is no postage needed for a letter to a Member of Parliament. You can refer to the sample letter below as a template. Feel free to add your own experiences and opinions. You can also send a copy to your Member of Parliament. You can look up your Member of Parliament here. Include your name and signature at the bottom. Also make sure you include your address at the top of your letter, so that you can get a response.
House of Commons
Canada K1A 0A6
The Honourable Jody Wilson-Raybould
Minister of Justice and Attorney General of Canada
The Honourable Ralph Goodale
Minister of Public Safety
Re: Changes to the Criminal Records Act regarding the eligibility requirements for a Record Suspension
I am writing to express my concern that people from provinces and territories other than British Columbia and Ontario cannot apply under the 2012 rules even if they were convicted before the law changed. The retroactive nature of these changes was declared unconstitutional by two provincial superior court judges.
Pardons are an important part of the rehabilitation of people with criminal records. A criminal record can make it difficult to find work and contribute to the community fully. Pardons help people get back on track and reintegrate.
I understand that the federal government is drafting legislation to reform the pardon system. In the meantime, please ask the Parole Board of Canada to accept applications of people convicted prior to 2012. This would allow all Canadians to be treated equally.
Sign the petition
AllCleared is the sponsor of the Lift the Burden campaign. This campaign calls on the government of Canada to undo the unfair pardon laws, return wait times to the previous three and five years, and make pardons free. You can sign the petition here.
If you would like to get started on a Record Suspension application, or if you have questions about your eligibility, contact AllCleared today at 1-866-972-7366.