When the federal government discovered that Karla Homolka – who completed a 12-year manslaughter sentence 5 years ago – would be eligible for a pardon next month (July 5th), it announced that it would move quickly to prevent her from doing so.  That’s why, on June 17th, the Government did something extraordinary: the House of Commons split Bill C-23 (which would make changes to the Criminal Records Act) into 2 NEW BILLS (C-23A and C-23B) and moved quickly to pass one of them (C-23A), while leaving the other one for further debate beginning in the fall (C-23B).

The House of Commons had to pass Bill C-23A a 3rd and final time before retiring for the summer break.   After the 3rd reading, it would go to the Senate for review before becoming law.  June 17th was the deadline for the House of Commons to pass Bill C-23A.  So, without much of a debate, that’s exactly what happened: a motion was passed by all parties to split Bill C-23 into Bill C-23A and B.  Incredibly, as part of that motion, everyone agreed “that Bill C-23A be deemed to have been reported from the Committee without amendment, deemed concurred in at report stage and deemed read a third time and passed.”

Now, to understand why this was so extraordinary, you need to realize how Bills are typically passed into law.  Normally, there is a 1st and 2nd reading of the Bill in the House of Commons.  Then the Bill is referred to a committee for consideration, followed by a report stage and then a 3rd reading.  Amazingly, none of this was done for Bill C-23A!  There was no summary to the bill, no legislative review, no speeches, etc.  So this was a rather strange way of passing Bill C-23A!

What’s so special about Bill C-23A?  Well, this Bill adopts some parts of Bill C-23 (not all of it).  The hope is that it will be passed into law quickly and take effect to prevent Karla Homolka from getting a pardon.  Specifically, this Bill would make amendments to the Criminal Records Act which would increase the time limits for those seeking a pardon. First, those who individuals who were convicted of certain serious personal injury offences under the Criminal Code (including manslaughter – which is what Homolka was convicted for) and who were sentenced to prison for at least 2 years  would have to wait 10 years after completing their sentence before applying for a pardon.  Those convicted of certain summary conviction offences (i.e. less serious offences) listed in Bill C-23A’s Schedule 1 would need to wait 5 years after completing their sentence before they are able to apply for a pardon; this is up from 3 years right now.  Those convicted of summary conviction offences not listed in Bill C-23A’s Schedule 1 would need to wait 3 years (as is currently the case).

In addition to making applicants wait longer, Bill C-23A would give the Board the power to grant a pardon if it is satisfied that:

• the applicant has been of good conduct and has not been convicted of an offence under an Act of Parliament during the applicable waiting period; and
• for applicants subject to increased waiting periods (i.e. 10 or 5 years), that granting the pardon at that time would provide a measurable benefit to the applicant, would sustain his or her rehabilitation in society as a law-abiding citizen and would not bring the administration of justice into disrepute.

For those who are subject to the extra waiting time, they would have the burden of proving whether the pardon would provide them with a “measurable benefit” and would “sustain his or her rehabilitation in society as a law-abiding citizen”.

Finally, in determining whether granting the pardon would bring the administration of justice into disrepute, the National Parole Board MAY consider (so it’s discretionary):

• the nature, gravity and duration of the offence;
• the circumstances surrounding the commission of the offence;
• information relating to the applicant’s criminal history; and
• any factor that is prescribed by regulation.

So now that Bill C-23A has passed 3rd reading in the House of Commons, it is currently being reviewed in the Senate.  The House of Commons has retired for the summer, but the Senate is staying a few more weeks to see if it can get Bill C-23A passed into law.  Right now, it’s being reviewed by the Legal and Constitutional Affairs Committee, who will report back to the Senate for final debate.

Stay tuned!

written by admin \\ tags: act to amend criminal records act, bill c-23, bill c-23A, bill c-23b, criminal records act, karla homolka, pardon, pardon canada, pardons, record suspension

Record Suspension in Canada – what are they all about?

Remember: if you are looking for a pardon or record suspension, try a Canadian Pardon | Record Suspension Service.

In this blog, I’ll be discussing some recent updates to Bill C-23 (now Bill C-23A and Bill C-23B) – which aims to make significant changes to the Criminal Records Act.

Increase in Canadian pardon applications
If the proposed Bill C-23A and B becomes law, people with criminal records will have to wait longer after they’ve completed their sentence before they can apply for a “record suspension” (currently called a “pardon”).  Wait times will increase from 3 to 5 years for less serious convictions (for summary conviction offences) and from 5 to 10 years for more serious convictions (for indictable offences).  Furthermore, some people who are now eligible for a “pardon” will no longer be eligible for a “record suspension” because there are new rules concerning eligibility (again, assuming the Bill gets passed into law as is).  For example, people who have been convicted of 3 indictable offences or offences of a sexual nature will no longer be eligible for a record suspension. With the threat of increased waiting times and more stringent thresholds to be met, people are now rushing to get a pardon before the Bill passes into law (which is currently being rushed through in Parliament).  For example, Peter Dimakos of Canadian Pardons has said: “We’ve doubled our staff to handle applications, and asked them to work Saturdays as well until the new rules come into law” (source: Ingrid Phaneuf, “Pardons Paranoia? Are proposed new pardons rules reason for concern, or simply…”, Truck News (July 1, 2010).

written by admin \\ tags: canada pardon, criminal record, criminal record act, pardon, record suspension

Remember: if you are looking for a pardon or record suspension, try a Canadian Pardon | Record Suspension Service.

OK, this is a bit odd…  When all the hub-bub over the proposed criminal record laws were being discussed, I was interviewed by a whole slew of media (CBC, Toronto Star, Canwest News, Goldhawk Live, etc.).  In that flurry, I missed an article by the Toronto Star that actually cited me…  The article was written over a week ago by Peter Small and Betsy Powell of the Toronto Star…  Here’s my honourable mention:

Michael Carabash, a Toronto lawyer who has written a book on criminal records, takes issue with the government making people wait longer, which he thinks could do more harm than good.

“I don’t know if government has any particular reason on why they want to make people wait longer, other than making the government look tough on crime.”

Not having a pardon means that people with convictions remain exposed to discrimination after they’ve done their sentence, he said.

This is strictly prohibited by the Charter of Rights and Freedoms, which says that once you’ve been convicted and punished for a crime, you’re not to be tried or punished for it again, he said.

So Betsy had interviewed me as part of a larger story on people taking issue with the proposed changes to the Criminal Records Act.  I had previously made comments in my blog to the effect that I didn’t understand why the government wanted to make people wait so long in order to be eligible for a pardon (or “record suspension”, as it is called in the proposed legislation).  I also pointed out to Betsy that people with criminal records have a tough time reaching their full potential in society: they may not be able to get a job, travel to the U.S., adopt a child, immigrate to Canada, and may even be discriminated against by police, the courts, and government agencies.  There’s definitely a social stigma attached to people with criminal records.  And don’t forget that the Charter of Rights and Freedoms says that, once you’ve been convicted and punished, you’re not to be punished again!  But people with criminal records are punished daily because of that stigma.  And not everyone with a criminal record (e.g. for something relatively minor they may have done long ago) deserves that stigma or continual punishment.  We, as a society, need that person to be productive, get a job, pay taxes, etc.  That was the point that I was making…

So even though I should have realized earlier that my interview with Betsy may have ended up in the Toronto Star, I got busy with other things and forgot to follow up to see if she had actually included anything I said in her article!  In the words of Homer Simpson: “Doh!”  Better late than never…

written by admin \\ tags: canwest news, charter of rights, charter of rights and freedoms, criminal record, criminal records, government agencies, immigrate to canada, proposed legislation, record suspension, record suspension canada, rights and freedoms, social stigma, toronto lawyer, toronto star

Record Suspensions in Canada – what are they all about?

Remember: if you are looking for a pardon or record suspension, try a Canadian Pardon | Record Suspension Service.

In this blog, I’ll be talking about Bill C-23′s impact on getting a “pardon” (which may be called a “record suspension” if the proposed law changes).  So we start off with the basics…What is a pardon?  Well, if you have a criminal record, have finished your sentence, and have waited the requisite time, you may be able to hide your criminal record from the prying and (somewhat discriminatory) eyes of the police, potential employers, U.S. border patrol services, Canadian immigration officials, the courts, volunteer organizations, and anyone else.  You see, having a criminal record makes you ineligible or less attractive for certain things – like crossing the U.S. border or getting a job or adopting a child. So hiding your criminal record is a way to be on par with everyone else.

Who deserves to have a pardon or record suspension?
Only those persons with criminal records who have completed their sentence, have been of good conduct, and have generally been rehabilitated after a set period of time are able to apply for a pardon or record suspension.  The government is proposing to increase the length of time someone would have to wait before they can be eligible to receive a record suspension, but I don’t necessarily agree that this would be a good thing.  Making people (everyday folk who want to get on with their lives and who have already paid their debt back to society) wait a number of years before they can go with family and friends on vacation to the U.S. or get a job may not make the most sense – particularly if the crime they committed was relatively minor.  We, as society, and they (as productive members of our society) want to move on with their lives.  Indeed, that’s what our Charter or Rights and Freedoms says: once you’re convicted and found guilty of a crime and punished, you’re not to be punished again for the same crime.  But people with criminal records are punished on a routine basis by the stigma of having a criminal record.  Some deserve that stigma (because of the heinous crimes they’ve done), but others do not.  It’s the latter that we as a society are concerned about.

So what will a pardon or record suspension do?
I’ve previously explained that criminal records supported by fingerprint information are held in the RCMP’s Identification data bank in Ottawa.  So if you have a pardon or record suspension, then your criminal record will still exist, but it will be kept separate and apart from other criminal records.  Unless the Minister of Public Safety determines otherwise (or unless your pardon ceases to have effect or is revoked), your criminal record will remain hidden from the prying eyes of potential employers, the police, court, government agencies, U.S. border patrol services, etc.

written by admin \\ tags: bill c, blog, canada pardons, canadian pardon, criminal records, getting a pardon, record suspension, record suspension canada, suspensions

Record Suspensions in Canada – what are they all about? Well, for now, it is just a proposed name for what Canada’s pardon system.  I’ve previously voiced concerns over Bill C-23, which would make it harder (if not impossible) for those with certain criminal records to apply to get a record suspension.  It would also require those with criminal records to have to wait longer before they become eligible to apply.

The main problem I have with the proposed legislation is the requirement for applicants to wait longer: from 5 years to 10 years if you were convicted of indictable offences (more serious crimes) and from 3 years to 5 years if you were convicted of summary conviction offences (less serious crimes).  The media has been interviewing everyday folk to get a sense of how this increased wait time would affect them.  And, you probably guessed it: it would make them wait before they could become full-fledged members of society.  Stories are popping up everywhere about how John Doe was a little deviant 2 years ago (nothing major – perhaps just a minor drug offence).  He hasn’t been able to travel to the U.S., apply for a job, volunteer, adopt a child, etc. because of the fear that his criminal record would negatively impact the outcome.  So he is unemployed, not paying taxes, and collecting social assistance.  John Doe wants to be a productive member of society.  He has paid the price for what he’s done.  That was over 2 years ago.   So how is making him wait even longer (from 1 more year to 3 more years) going to help him or society?

This begs the bigger question: what does the Conservative government know that we don’t?  Why do they want to make people wait longer?  What effect does it have?  Does the National Parole Board need more time and breathing room to deal with applications (even if it did, that still shouldn’t justify making people wait longer)?  Are there reports that show that people need more time to rehabilitate themselves to enter society again as productive members?  I haven’t seen anything….  So until the government explains why it wants to make people wait longer, I think we should stick to the current timelines.

What about changing the name from pardon to record suspension?  It’s a political move, for sure: the Government doesn’t want to be perceived by the public (and victims in particular) for being in the pardon, mercy, or forgiveness business.  Record suspension is closer in meaning to what actually happens when you get a pardon than the word “pardon” itself: your criminal record is kept separate and apart from other criminal records held in the RCMP’s Identification data bank.

written by admin \\ tags: 10 years, 3 years, bill c, breathing room, conservative government, criminal record, criminal records, drug offence, everyday folk, indictable offences, john doe, national parole board, paying taxes, productive member, proposed legislation, serious crimes, social assistance, summary conviction, suspensions, wait time

Remember: if you are looking for a pardon or record suspension, try a Canadian Pardon | Record Suspension Service.

Record suspensions in Canada…. I think the government should reconsider what it’s proposing (in part).  Ever since the Tories announced that they wanted to amend the Criminal Records Act to make getting a pardon (proposed to be called “record suspension”) more difficult, I’ve been bombarded with phone calls and e-mails.

First came the media, who wanted an opinion from “an expert” (because I wrote a forthcoming book called “Erase Your Criminal Record”).  Next came the record removal services (U.S. Entry Waivers, Pardons, and File Destruction, etc).  They were interested in my take on matters too.  Then came everyone else – such as the everyday people who have a criminal record and who are worried about the impact of the proposed laws passing.  I guess they are most afraid about the time they would have to wait after completing their sentence before they become eligible to apply for a record suspension (for indictable offences, it’s up to 10 years from 5 years; for summary conviction offences, it’s up to 5 years from 3 years).  Then there are some who are afraid that they won’t even get the chance because they were convicted of 3 indictable offences.  Their voices are many, but not mobilized.  One person for example told me that they had 3 indictable offence convictions: 2 thefts under $5,000 and 1 simple assault.  This person (a university student) has been waiting a number of years to apply to get a pardon, but may not get the chance if the new rules pass.

That made me think… Look: everyone makes mistakes.  And yes, we can’t forget about the victims.   But I’m inclined to say that society is better off – in certain situations – by giving people record suspensions even if they have been convicted of 3 indictable offences.  Why?  Because there’s no hard and fast rule that would make sense here.  Why is 3 convictions the magic number?  Maybe 5 is?  Shouldn’t we consider things like how long ago they happened, how rehabilitated this person is, what the victims think, etc.?

And lets not forget how the police charge people and whether they’re charging them with indictable offences when summary ones would do.  Think about this: the police DO NOT HAVE the authority to fingerprint or take your photograph UNLESS they charge you with an indictable offence.  Speaking with pardon and record removal services makes it seem like policy rarely charge people with a purely summary conviction offence (because they want to take their fingerprints and photographs).  If an offence is a hybrid offence (meaning it can proceed by way of summary conviction or indictable offence conviction), then the police would prefer to charge by way of indictment (so I’m told).  But I’ve also spoken with police services, who say they don’t do that: they abide by the law and will only charge a person with an indictable offence if warranted – and not simply for the purpose of obtaining their fingerprints and photographs.  So who’s telling the truth here?  Everyone has their own interests.

But what’s the big deal about getting your fingerprint and photograph taken?  Well, the RCMP’s Identification data bank (i.e. the criminal record database which most law enforcement agencies rely upon to run criminal record checks) ONLY includes criminal records supported by fingerprints.  If a person was charged with a SUMMARY conviction offence, then they won’t get their information included in that data bank.  It will be available with the local police service, but it may or may not get shared with other law enforcement agencies and government departments from there.

So going back to what I was saying before: why should we prevent people convicted of 3 indictable offences to have a record suspension as a hard and fast rule?  If someone committed 3 thefts in their life under $5,000 (lets say $100 the first time, $200 the second time, and $50 the third time) and was charged and found guilty on all 3 as indictable offences, should they pay the piper for the rest of their lives?  Perhaps we should give the National Parole Board the discretion in these circumstances to determine whether the person deserved a record suspension.  Not simply bar them from applying from get go.   Shutting the door seems unfair to those who may be barred, but also may not make sense given that we want these people to go on leading productive lives (long after their deviant behaviour has passed out of sight and mind).

Finally, why is the government so inclined to do this?  Are they trying to target the serious and repeat offenders to prevent them from applying?  But who else gets caught in this hard and fast rule?  The everyday folk who were convicted a while back of 3 indictable offences which weren’t as serious.   Does the National Parole Board need to free up its intake and processing time for applications?  It seems to be doing an adequate job so far, so why not let them decide whether the person – in the specific circumstances of each case – warrants a record suspension?

Apart from this rule and the timing changes (which I have previously criticized), I’m in favour of the other proposed changes which the government has put forward…

written by admin \\ tags: 3 years, canada record suspension, convictions, criminal record, everyday people, forthcoming book, getting a pardon, indictable offence, indictable offences, magic number, pardons, phone calls, police charge, proposed laws, record, record suspension, simple assault, summary conviction, suspensions, that would make sense, tories, waivers, would make sense

Remember: if you are looking for a pardon or record suspension, try a Canadian Pardon | Record Suspension Service.

Following up on my last blog, where I talked about certain proposed amendments to the Criminal Records Act (as discussed in the Public Safety Canada’s website), I have now had the opportunity to look at the actual text of Bill C-23, Eliminating Pardons for Serious Crimes Act.  So now I’ll offer my two cents again in light of what the proposed legislation actually says (instead of what the government website says).  Now I won’t be going through all of the changes – just the more significant ones.

Long Title of Act
The Long Title of the Act changed from “providing relief” to “suspending records”.  As previously discussed, this is part of the government’s stance of not wanting to be in the business of “pardoning”, “forgiving”, or otherwise “relieving” those who have been convicted of criminal records.

Effect of Record Suspension
So my initial thoughts were correct: the effect of a record suspension is more or less the same as a pardon.  So getting a record suspension means that criminal records held in the RCMP’s Identification data banks (which are supported by fingerprint information) are hidden from view.  Specifically, pardoned criminal records are kept separate and apart from other criminal records so that the prying eyes of employers, volunteer organizations, immigration officials, police, courts, U.S. border agents, and others generally can’t see them.

Restrictions on Application for Record Suspension
Here’s the amendment I’m having difficulty with.  The proposed section 4 says that a person will only be eligible for a record suspension after they have served their sentence: 10 years for indictable offences (more serious crimes) up from 5 years, and 5 years for summary conviction offences (less serious crimes) up from 3 years.

I’m actually inclined to question the government’s motives of wanting to make applicants wait longer before applying for a record suspension.  Sure, it makes the government look good (“tough on crime”) by extending the waiting period.  But why else should we agree to it?  Does the government know something that we don’t? Are there reports or statistics showing that way more time is needed for rehabilitation? If, based on the current waiting periods, over 96% of those who have received pardons (approximately 400,000 since the pardon system started) have kept them, that what problem are we trying to fix by making people wait longer?  In fact, unless there is proof to the contrary, making people wait longer actually prevents them from living fuller lives earlier.  Remember: there are approximately 3.4-million records in the RCMP’s Identification data bank and many of them are eligible for a pardon.  Not having a pardon means that they expose themselves to discrimination AFTER they’ve done their sentence.  This is strictly prohibited by the Charter of Rights and Freedoms: section 11(h) says that once you’ve been convicted and punished for a crime, you’re not to be tried or punished for it again.  But those with criminal records are constantly being punished – for example, when they try to go to the U.S. on a family vacation, apply for a job, adopt a child, volunteer, immigrate to Canada, etc.  Many of these people aren’t hard-wired criminals; they are generally law-abiding and tax paying citizens who were deviant in their younger years.  I just don’t see the reason why the government wants to extend the timeline for applying; doing so could cause more harm than good.

Sexual Offenders
This proposed section makes it extremely difficult for anyone convicted of an offence of a sexual nature to be eligible for a record suspension.  The sexual offences are listed in Schedule 1.  The only way a person convicted of one of these offences can still get a record suspension is if: (1)  the person was NOT in a position of trust or authority towards the victim and the victim was not in a relationship of dependency with him or her, (2) the person didn’t use, threaten to use, or attempt to use violence, intimidation or coercion in relation to the victim, AND (3) the person was less than 5 years older than the victim.  The person has the BURDEN of proving these 3 conditions to the Board’s satisfaction.

Convicted of 3 Indictable Offences
A person will be ineligible to apply for a pardon if they were convicted of more than 3 indictable offences.

Record Suspension
This proposed section gives the Board the power to suspend the applicant’s criminal record if it is satisfied that: (1) the applicant has been of good conduct during the relevant waiting period (i.e. 10 years or 5 years, depending on the seriousness of the offence) and not convicted of an offence under any Act of Parliament AND (2) for indictable offences, ordering the record suspension would: (i) provide a measurable benefit to the applicant, (ii) sustain the applicant’s rehabilitation in society as a law-abiding citizen, and (iii) would not bring the administration of justice into disrepute.  The onus is on the applicant to demonstrate the first two things, but no the last one.

Factors which the Board MAY consider
OK, so finally the Board may consider a whole slew of factors when determining whether to order a record suspension.  Recall that this is what I had previously recommended.  Among other factors (which may be prescribed by the Public Safety Minister by regulation), the Board may consider:

(a) the nature, gravity and duration of the offence;

(b) the circumstances surrounding the commission of the offence;

(c) information relating to the applicant’s criminal history and, in the case of a service offence, to any service offence history of the applicant that is relevant to the application.

Inquiries
What’s new hear is the Board’s ability to make inquiries, with respect to applicants convicted of indictable offences, into ANY FACTORS that the Board MAY consider in determining whether ordering the record suspension would bring the administration of justice into disrepute.

Disclosure of Decisions
The Board may now disclose decisions to order or refuse to order record suspensions.  However, it may not disclose information that would reasonably be expected to identify an individual (unless that person consents).

There are more changes to the Act, but these are by far the most sweeping…

If these changes actually become law, I might have to change what I’ve already written about the pardon system in my forthcoming book, “Erase Your Criminal Record”.

written by admin \\ tags: bill c-23, Eliminating Pardons for Serious Crimes Act, erase your criminal record, Michael Carabash, pardons, record suspensions

Remember: if you are looking for a pardon or record suspension, try a Canadian Pardon | Record Suspension Service.

So today, Canada’s Public Safety Minister Vic Toews and Senator Pierre-Hugues Boisvenu announced legislation to change our Criminal Records Act. These are just PROPOSED changes and it may take a few months (if not longer) before they become law.  You can see my previous post here about how quickly and easily it would be to make changes to the Criminal Records Act.

It was my intention to go through some of these proposed amendments and offer my two cents.  Unfortunately, I haven’t been able to see Bill C-23 Eliminating Pardons for Serious Crimes Act, so I’m basing my research and analysis on what the Public Safety Canada website said today.  Once the legislation becomes available online, I’ll have a better idea of how the proposed changes would work.  With that little caveat in mind, on with the show…

For starters, the Government is proposing to eliminate the “pardon” system and replace it with a “record suspension” system.  What’s the difference you ask?  This may simply be political posturing.  A “pardon” implies forgiveness or mercy; a “record suspension” does not.   It seems like the government doesn’t want to appear to be in the business or forgiving people:

“The current system of pardons implies that what the person did is somehow okay, or is forgiven, or that the harm done has somehow disappeared,” said Minister Toews. “Our government disagrees, and is on the side of victims. That is why we are taking action to replace the current system and eliminate pardons for serious crimes.”

Source: Public Safety Canada website.

But other than a name change, what is the EFFECT of receiving a “record suspension” instead of a “pardon“?  I’ve reviewed the government’s proposed amendments but haven’t come across any difference in the EFFECT of getting a record suspension (although there are difference in how to get a record suspension vs. how to get a pardon).  So getting a “record suspension” may have the same effect as getting a pardon: criminal records held in the RCMP’s Identification data banks (which are supported by fingerprint information) are hidden from view.  Specifically, pardoned criminal records are kept separate and apart from other criminal records so that the prying eyes of employers, volunteer organizations, immigration officials, police, courts, U.S. border agents, and others generally can’t see them.

So the first change is simply a name change (as far as I can tell).

What else are they proposing?

Well, as it stands, the National Parole Board has no discretion when it comes to granting pardons for summary conviction offences (less serious crimes). So long as the applicant was of good conduct and not convicted of an offence under an Act of Parliament for the previous 3 years (after completing their sentence), then the National Parole Board MUST give them a pardon.  It’s unclear whether the proposed changes would change that practice.  The Public Safety Canada website says that the National Parole Board MAY order a record suspension if satisfied that the applicant was of good conduct and did not re-offend during the past 5 years (a change in the waiting period is discussed below), but where is the REAL DISCRETION here?   The website doesn’t mention any test or factors (as it does for the ordering of a record suspension for indictable offences).  So overall, this looks a lot like what the National Parole Board was previously doing: issuing pardons so long as the basic requirements were met.  There was no discretion to deny them, and it doesn’t appear as though there will be with the proposed amendments.  Maybe the Public Safety Canada website made a mistake by using the word “MAY” without giving us anything more.  I’ll need to wait for the legislation to become available to see if the National Parole Board actually HAS some discretion in deciding whether to order a record suspension for these less serious crimes.

OK, so far, we’ve tackled 2 changes that may or may not actually do anything substantive.  But what about the real “meat and potato” changes?  Well, there are a few of these worth discussing.

First, applicants seeking a “record suspension” will need to wait longer periods before they can apply.  As mentioned above, applicants would need to wait 5 years after completing their sentence for summary conviction offences (less serious crimes).  This is up from 3 years at present.  Furthermore, those applicants who were convicted of and completed their sentence for indictable offences (more serious crimes) would need to wait 10 years before applying.  This is up from 5 years at present.

At this point, I’m actually inclined to question the government’s motives of wanting to make applicants wait longer before applying for a record suspension.  Sure, it makes the government look good (“tough on crime”) by extending the waiting period.  But why else should we agree to it?  Does the government know something that we don’t? Are there reports or statistics showing that way more time is needed for rehabilitation? If, based on the current waiting periods, over 96% of those who have received pardons (approximately 400,000 since the pardon system started) have kept them, that what problem are we trying to fix by making people wait longer?  In fact, unless there is proof to the contrary, making people wait longer actually prevents them from living fuller lives earlier.  Remember: there are approximately 3.4-million records in the RCMP’s Identification data bank and many of them are eligible for a pardon.  Not having a pardon means that they expose themselves to discrimination AFTER they’ve done their sentence.  This is strictly prohibited by the Charter of Rights and Freedoms: section 11(h) says that once you’ve been convicted and punished for a crime, you’re not to be tried or punished for it again.  But those with criminal records are constantly being punished – for example, when they try to go to the U.S. on a family vacation, apply for a job, adopt a child, volunteer, immigrate to Canada, etc.  Many of these people aren’t hard-wired criminals; they are generally law-abiding and tax paying citizens who were deviant in their younger years.  I just don’t see the reason why the government wants to extend the timeline for applying; doing so could cause more harm than good.  These are just my two cents at this moment…

Another major amendment would make it virtually impossible for anyone convicted of a sexual offence to get a record suspension. Specifically, to be granted a record suspension:

“the applicant must not have been convicted of an offence involving sexual activity relating to a minor – as set out in a schedule of specified offences – unless the applicant can demonstrate s/he was “close in age” and that the offence did not involve a position of trust/authority, bodily harm or threat of violence/intimidation”

Source: Public Safety Canada website.

Then there’s an amendment which would make it impossible for those convicted of more than three (3) indictable offences to receive a record suspension.

Moving on, the National Parole Board will have discretion when it comes to ordering a record suspension for applicants convicted of an indictable offence.  Before, when it came to indictable offences (the more serious kind – particularly involving sexual offences), the National Parole Board’s arms were tied when it came to granting pardons.  So long as the applicant had a clean record (was of good conduct and hadn’t re-offended within the past 5 years), the National Parole Board could do little other than grant that person a pardon.  Indeed, if it did anything else, it would be acting outside of its legislative scope and could end up in hot water.

The proposed amendments would give the National Parole Board what it needed all along: real and meaningful discretion.  Specifically, the proposed amendments would give the National Parole Board the power to order a record suspension if it were satisfied that:

• ordering the record suspension would provide a measurable benefit to the applicant; would sustain his or her rehabilitation in society as a law-abiding citizen and would not bring the administration of justice into disrepute.
• The onus is on the applicant to satisfy the NPB that a record suspension would provide a measurable benefit to themselves and sustain their rehabilitation as a law-abiding citizen.

In determining whether the ordering of a record suspension would bring the administration of justice into disrepute, the National Parole Board may consider:

• the nature, gravity, and duration of the offence;
• the circumstances surrounding the commission of the offence; and
• information relating to the applicant’s criminal history.

Well, I’m glad to see that some of my previous recommendations are being proposed.  In a previous blog, I wrote:

A clause could be inserted into the Criminal Records Act saying that the National Parole Board MUST consider these factors when deciding whether to grant a pardon for certain applicants.

The overall test could, for example, focus on the pardon applicant’s present risk of re-offending and relevant criteria could include: (1) the applicant’s criminal record, (2) psychiatric reports about the applicant, (3) victim impact statements, (4) character reference statements, (5) general statistics about the propensity of those who commit certain crimes to re-offender, (6) the nature or type of offence(s) committed, etc.  I’m just giving you an idea of what the National Parole Board could consider.

These criteria could be developed by the National Parole Board, the Minister of Public Safety, etc. in conjunction with experts, the public, and others.  It may not really matter WHO comes up with the criteria, so long as they are generally agreed upon and published somewhere for public scrutiny.  These criteria may also need to be updated from time to time; to require amendments to the Act may take too long, so we can get around that by inserting a section in the Act that says the Minister of Public Safety can make regulations concerning the criteria which the National Parole Board must follow.

It’s worth mentioning that, even if the Public Safety Minister creates the criteria (e.g. through regulations to the Criminal Records Act), the National Parole Board would still be an independent government agency capable of making decisions without that Minister’s influence.

Finally, the legislation would also require the National Parole Board to submit reports to the Minister of Public Safety with the following information:

• the number of applications for record suspensions made for both summary conviction and indictable offences;
• the number of record suspensions ordered and the number of record suspensions refused in respect of both summary conviction and indictable offences;
• the number of record suspensions ordered, indexed by the offence to which they relate and the province of residence of the applicant; and
• any other information the Minister may require.

So those are my thoughts for now…stay tuned when I actually get my hands on the actual Bill C-23.

written by admin \\ tags: bill c-23, Eliminating Pardons for Serious Crimes Act, proposed amendments to criminal records act

Remember: if you are looking for a pardon or record suspension, try a Canadian Pardon | Record Suspension Service.

So today my blog post about the history of criminal records was featured in the Globe and Mail.  In that post, I talked about how the pardon system used to be administered by a special committee of Cabinet.  Pardons were handed out by that committee and the National Parole Board was merely a recommending body.  That all changed in 1992, when changes to the Criminal Records Act made the National Parole Board the exclusive administrative body to issue or grant pardons.  The National Parole Board is supposed to be independent and impartial from others (e.g. Cabinet).  Here’s where what I wrote in my blog was mentioned:

It used to be that the RCMP would contact neighbours, employers and others to check up on applicants for pardons, according to Toronto lawyer Michael Carabash, who is writing a book on pardons. The decision to grant or deny a pardon belonged, until 1992, to a special committee of cabinet, based on a recommendation from the parole board. It is now entirely within the board’s purview.

Be sure to check out all 14 blog posts which I’ve written so far about criminal records in Canada.  Also, my book (entitled “Erase Your Criminal Record”) should be coming out in a few months…

written by admin \\ tags: criminal records in canada, globe and mail, Michael Carabash, pardons

Remember: if you are looking for a pardon or record suspension, try a Canadian Pardon | Record Suspension Service.

Bruce Cheadle and Jim Bronskill of The Canadian Press wrote an article today entitled “Screening guide oversight underscores confusion over pardoned sex offenders”.  In it, they quote me as saying how disjointed Canada’s criminal record system is:

Lawyer and author Michael Carabash says the disparate criminal records system is a disjointed mass of confusing data.

“The criminal records system needs a complete overhaul. How can people expect to know anything about criminal records if it’s unclear to me, a lawyer who has researched the damn thing for months?”

written by admin \\ tags: criminal records system canada, Michael Carabash, the canadian press