Record Suspension (Pardon) Reform

Classification: Unclassified

Branch/Agency: CSCCB

Proposed Response:

If pressed on Cannabis Pardons:

Financial Implications:

Budget 2019 allocated $1.7 million to the Parole Board of Canada (PBC) and the Royal Canadian Mounted Police (RCMP) to implement Bill C-93 and to the streamlined process for the simple possession of cannabis applications.

If pressed on the User Fee CPI Index :

In January 2020, PBC announced that the record suspension application fee would increase from $631 to approximately $644, beginning in March 2020. This increase is a result of the Service Fees Act, which requires all entities charging user fees to increase their fee on an annual basis in accordance with the Consumer Price Index.

Background:

The Criminal Records Act (CRA) underwent significant legislative changes between 2010 and 2012. These changes had the effect of limiting access to pardons, currently known as record suspensions, by lengthening waiting periods before individuals could apply, making some offences ineligible for pardons, introducing new criteria as part of the application review, and changing the term from pardon to record suspension. In addition, the application fee was increased from $50 (fifty) to $150 (one hundred and fifty) in 2010, and then to $631 (six hundred and thirty one) in 2012 to better reflect cost recovery.

The 2010 and 2012 amendments to the CRA were applied to any person who had not yet applied for a pardon, including retrospectively to those who had already committed a crime. In response to litigation (Chu), on April 19, 2017, the Supreme Court of British Columbia ruled this retrospective application violated the Charter, as increased waiting periods and new eligibility criteria were held to constitute an increase in punishment. The Government did not appeal that decision. The Attorney General of Canada conceded in a similar case (Charron and Rajab) in Ontario in June 2017. Similar litigation is pending in other provinces, as well as one case in the Federal Court, where Canada conceded to the unconstitutionality. The Federal Court decision has been under reserve since April 2019. If the challenge is successful, the eligibility period and criteria for obtaining a record suspension would be applied consistently across Canada.

In 2016, the Minister of Public Safety and Emergency Preparedness commented on the changes made to the pardons program, and the government subsequently committed to reviewing that program. In May and June of 2016, the Parole Board of Canada conducted online consultations on the Record Suspension Program User fee. Most respondents found the current application fee ($631) to be a barrier to applying for a record suspension. In November and December of that same year, the Department of Public Safety consulted with stakeholders and partners on the review of the Criminal Records Act and with the public through online consultations. In general, the process for obtaining a record suspension was found to be complex, and waiting periods for applying were found to be too long.

Pardons for Cannabis Offences

On August 1, 2019, Bill C-93, An Act to provide a no-cost expedited record suspension process for simple possession of cannabis, came into force. The Act modifies the Criminal Records Act to waive record suspension application wait periods and application fees for those convicted only of simple possession of cannabis. The Act creates an administrative review process where the application is considered by a Parole Board of Canada (PBC) staff member as opposed to a discretionary review by PBC Board Members. The record suspension will be ordered so long as the individual can show that their only convictions are for simple possession of cannabis.

The Act also offers recourse for those with other convictions on individual’s record by ensuring that simple possession of cannabis convictions will not impact a person’s ability to obtain a record suspension. That is, simple possession of cannabis will not extend a pardon ineligibility period and will not be considered in reviewing good conduct or disrepute.  Finally, the Act ensures that the inability to pay a fine associated with a conviction for simple possession of cannabis will not prevent someone from accessing a record suspension. There is no longer a requirement to pay these fines before applying.

The PBC and the RCMP are seeking $1,743,354 in fiscal year 2019-20 to implement Bill C-93.  Funding will be used by PBC to cover the cost of pre-implementation activities and to maintain sufficient skilled staff levels to implement the streamlined process for simple possession of cannabis applications received in 2019-20. The RCMP will be using the funds to update record entries in the National Repository of Criminal Records and to provide notifications to law enforcement agencies that a record suspension has been ordered by the PBC. The RCMP is seeking $483,354, and PBC is seeking $1,181,443. In addition, there is an amount of $78,557 for Public Services and Procurement Canada.

User Fee Increase – March 31, 2020

In 2017, the Services Fees Act came into force and replaced the User Fees Act. It imposed new requirements on entities charging user fees to increase fees on an annual basis in accordance with the Consumer Price Index (CPI). The first increase for the Record Suspension Program is scheduled for March 31, 2020. The CPI index in 201 8 was 2.2%, which would raise the fee from $631 to $644.88.

Contacts:

Prepared by: Cara Vanayan, Senior Policy Advisor, 613-993-9524

Approved by: Trevor Bhupsingh, A/Assistant Deputy Minister, Community Safety and Countering Crime Branch, 613-991-4281

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