Campbell: Two bills on criminal pardons. One of them gets it right

Our medieval ancestors had some interesting ideas about crime.

They favoured the swiftness and sureness of physical punishments, and branding with a hot iron had particular efficiencies. It not only punished the offender, it also left the record of criminality visible for all to see. Nothing like a “T” branded on your face or hand to permanently record your offence of theft.

The passage of time brought some reconsideration, and moral punishment became more attractive than physical. “Lock them up!” became the familiar chant in the early 1800s.  Tossing out the branding iron meant a new paper form of criminal record-keeping was needed.

But that created the question: how long do you keep the paper (or later, electronic) record? Should the crime be held against you forever? British monarchs were of the view that that could be a long time to suffer the consequences of some offences, and the Royal Prerogative of Mercy was their tool to erase the conviction, end the punishment or seal the record in highly deserving cases.

In 1970, Parliament decided that the cumbersome process of applying to the Crown or cabinet in more run-of-the-mill cases needed a more streamlined approach. Indeed it was the proliferation of pot-possession criminal records by otherwise law-abiding young people in the swinging ’60s that was the motivation behind the creation of the Criminal Records Act. Once a person had been held accountable through conviction, and had fulfilled the sentence, and had proven through a waiting period that they had turned away from crime, what was being achieved by continuing to hold it against them?  Parliamentarians agreed that the record should be sealed from view and the person no longer subject to its negative effects in job applications and otherwise.

Once a person had been held accountable through conviction, and had fulfilled the sentence, and had proven through a waiting period that they had turned away from crime, what was being achieved by continuing to hold it against them?

The new program worked well. Ex-offenders who had done everything that was expected of them were able to continue a law-abiding life without the stigma of the record. And there was never any evidence that anyone had manipulated the pardon system so as to shield themselves from detection in further crimes.

But the last federal government clung to a more medieval view, one rooted in the belief that if you had committed theft (or, insert any crime), you were a thief, you were nothing but a thief and you would be a thief forever. And so it gutted the Act, more than quadrupled the fee to apply for a pardon, and inserted new criteria, ineligibilities, delays and backlogs to ensure that few would qualify for a pardon. There was an outcry from experts and public alike.

The 2015 Liberal government was well aware of these concerns. Instead of acting immediately, a year passed, another year passed, another year passed. Finally, instead of the coherent overhaul that was needed, the government addressed only those cases where the record was for offences that no longer exist. Now that’s a good thing, no argument. But this piecemeal reform does nothing, repeat nothing, to remedy the other existing problems with the pardon program.

In particular, Bill C-93, the newly tabled pot-pardon bill, retains the requirement that the individual apply for relief (rather than eliminating application backlogs by automatically expunging the record), still refers to it as a “record suspension” (no pardon for you), and is unavailable if you have any other conviction on your record. Mercifully, it removes the $631 fee that is a barrier to so many, especially those from disadvantaged communities – but this only applies to pot pardons.

By contrast, have a look at Bill S-258, a pardon bill tabled by Sen. Kim Pate less than two weeks before Public Safety Minister Ralph Goodale’s C-93. It provides comprehensive reform of the Criminal Records Act – reversing the misguided changes made by the last government, reducing the costly workload of the perennially under-funded Parole Board, and removing the unaffordable fee. All of which promotes, not undermines, public safety.

After three and a half years, Goodale’s bill fails to address the problems he was aware of on Day One in the job. Sen. Pate has covered all the bases. With just 10 sitting weeks left, it will be up to Parliament to decide which bill is the better choice for Canadians.

Mary E. Campbell is a corrections lawyer and former Director General at Public Safety Canada.

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