An estimated one in seven Canadians has a criminal record, and while the government’s new bill to expedite suspensions of criminal records for simple cannabis possession convictions is definitely a step in the right direction, it’s far from a full response. Bill C-93, the only gesture the government has made to reform a broken criminal record suspension system, offers precious little to Canadians who have waited too long for meaningful change.

That’s why I have proposed my own bill in the Senate. Bill S-258 would allow for expiry of criminal records after two years (for summary convictions) or five years (for indictable offences) after the completion of a sentence. If there are no subsequent convictions or pending charges, the RCMP could simply monitor during this period, without onerous and unnecessarily complex application procedures. The cost savings from cancelling this bureaucracy would be used to eliminate the current $631 application fee and, with it, a significant barrier to record expiry.

Criminal records perpetuate stigma, poverty and marginalization, and prevent access to what people need for successful community integration, from housing and employment to education and volunteer opportunities. That punishes not only individuals with records but also their families — especially their children — and prevents these individuals from contributing meaningfully to their community.

I could wait no longer to act. More than three years ago, Public Safety Minister Ralph Goodale described the current record suspension application process as “punitive” and committed to overhauling it. Since then, the findings of a parliamentary committee and public consultations carried out by Public Safety Canada and the Parole Board of Canada have been nearly unanimous in describing the current criminal record suspension system as inaccessible and unjust.

However, the government has taken a decidedly piecemeal approach. Legislation for expunging discriminatory records for members of the lesbian, gay, bisexual, transgender, queer and two-spirit (LGBTQ2S) community (Bill C-66) became law in 2018 and has already demonstrated the inadequacy of application-based processes. Even with a more accessible process than the one for regular record suspensions, most recent data indicate that only 7 out of an estimated 9,000 affected individuals have made applications for expungement: that is, definitive deletion of a criminal record.

This experience does not bode well for the success of Bill C-93. This bill also relies on an application process and will add to bureaucratic and administrative confusion by creating a fourth process for the Parole Board of Canada to manage: cannabis record suspension applications on top of the original pardon applications from pre-record-suspension days, record suspension applications and record expungement applications under Bill C-66.

Lost in the discourse around cannabis amnesty is the fact that many individuals who pose no increased risk to public safety — including those covered by Bill C-93 — live with the ongoing burden of punitive criminal records. Most criminal records can be sealed only through onerous and costly application processes. This need not be the inevitable consequence of a criminal conviction. Yet Canada’s criminal record regime chooses to exact ongoing punishment for adults.

Those previously convicted of criminal offences are most likely to remain crime-free if they have a place to live, the means to support themselves and something meaningful to do with their time. These opportunities for successful community integration are too often foreclosed to those with criminal records simply because they have records.

Moreover, the punitive effect of criminal records is increasing. In Canada, the number of civil record checks — that is, checks performed by the police at the request of employers, landlords, volunteer organizations and others in the community — has increased by about 7 percent per year.

At the same time, application processes for suspending criminal records have become more costly and complex. Between 2010 and 2012, Canada entrenched a “tough-on-crime” approach to pardons. Fees increased from $50 to $631, wait periods increased from 3 and 5 years, to 5 and 10 years, and pardons became “record suspensions,” requiring a more invasive and complex review process.

The result? Criminal records have become a lifelong stigma.

And to what end?  Available data tell us that the 2012 changes restricting access to pardons have not made us safer. Furthermore, the rate of those who have continued to meet stringent “good conduct” requirements after obtaining a pardon or record suspension has remained steady; across all of these changes, it has remained more than 95 percent.

Instead, those 2012 changes made the process punishingly inaccessible and effectively barred access to record suspensions for those who are poor. Since 2012, the number of people applying annually for record suspensions has dropped by about 40 percent. As a result, these changes actually risk making communities less safe by effectively barring access to housing, jobs, education and the community connections necessary for people to participate and contribute fully in the community and move ahead with their lives.

Maintaining onerous application and review processes is all the more senseless because they are not necessary in order to measure one of the most important indicators of successful community integration: that is, living a number of crime-free years after conviction. Jurisdictions such as France and Germany allow criminal records to expire automatically after a fixed amount of time. In Canada, we take the same approach with records for youth. Where individuals pose no increased risk to public safety, there is no justification for a punitive application process to suspend a record.

If we truly believe in human rights and the ability of people to correct their behaviour and become contributing members of communities, we must end the punishment of a lingering criminal record.

Photo: Shutterstock by David Alary

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Kim Pate
Kim Pate is a senator. She is an adjunct law professor who has also spent the past four decades working with and on behalf of marginalized, victimized, criminalized and institutionalized youth, men and women.

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