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Tuesday April 14, 2020

Retroactive Record Suspension Eligibility Deemed Unconstitutional, Federal Court says.

Authored by: Terrance G. Sheppard Posted in: Criminal Law

In 2010 and 2012, Parliament enacted the Limiting Pardons for Serious Crimes Act, SC 2010, c 5 [LPSCA] and the Safe Streets and Communities Act, SC 2012, c 1 [SSCA], which amended certain provisions of the Criminal Records Act (“CRA”). One of the amendments increased the waiting period before offenders can apply for a record suspension (formerly referred to as a “pardon”).

In the recent decision, P.H. v. Canada (Attorney General), 2020 FC 393 (“P.H.”), P.H. challenged these provisions that allow them to apply retroactively. The Federal Court agreed and held that the amendments violated sections 11(h) and 11(i) of the Canadian Charter of Rights and Freedoms (“Charter”).

The Federal Court referenced a British Columbia and two Ontario cases1 that similarly found the amendments contrary to sections 11(h) and 11(i) of the Charter. The Court in P.H. held:

[57] … Despite the CRA being a federal statute, the current state of the law in Canada is such that different versions of section 4 of the CRA are being applied in the provinces and territories, resulting in record suspensions being more difficult to obtain for certain individuals outside British Columbia and Ontario. It is in the interests of justice that the amendments to section 4 of the CRA be applied consistently across Canada.

Although the British Columbia decision (“Chu”) was not binding on the Federal Court, the court in P.H. nevertheless found the case to be both “persuasive and authoritative.”2 The Court in P.H. stated:

[85] In Chu, the SCBC examined each of the Transitional Provisions with this context in mind. The SCBC found that the impact of the lengthened ineligibility periods caused by section 161 of the SSCA was analogous to the retrospective change considered in Whaling. The increased duration of the criminal record applied automatically, without regard to the offender’s personal circumstances, and foreseeably disrupted many offenders’ settled expectations and plans, thus constituting additional punishment (Chu at paras 241-243).

As a result, government changes made in 2010 and 2012 that increased the waiting period before people can apply for a record suspension are no longer being applied retroactivity for people who committed their most recent offence before the law was changed. This is consistent now all across the country and not just in British Columbia and Ontario. The Government of Canada website outlines the eligibility criteria:

  1. Before June 29, 2010: After the expiration of any sentence including imprisonment, probation and the payment of any fine(s), the waiting period is:
    • 5 years – an offence prosecuted by indictment.
    • 3 years – an offence punishable on summary conviction.
  1. Between June 29, 2010 and March 12, 2012: After the expiration of any sentence including imprisonment, probation and the payment of any fine(s), the waiting period is:
    • 10 years – serious personal injury offence (within the meaning of 752 of the Criminal Code); including manslaughter; an offence for which the applicant was sentenced to a prison term of 2 years or more, and an offence referred to in Schedule 1 that was prosecuted by indictment.
    • 5 years – any other offence prosecuted by indictment and an offence referred to in Schedule 1 that is punishable on summary conviction.
    • 3 years – an offence other than the ones mentioned above, that is punishable on summary conviction.
  1. On or after March 13, 2012: After the expiration of any sentence including imprisonment, probation and the payment of any fine(s), the waiting period is:
    • 10 years – an offence prosecuted by indictment.
    • 5 years – an offence that is punishable on summary conviction.
    • A person is ineligible if they:
      • have been convicted of an offence referred to in Schedule 1;
      • have been convicted of more than three offences prosecuted by indictment, each with a sentence of two years or more.

A record suspension allows people who were convicted of a crime to remove their criminal record from the Canadian Police Information Centre (CPIC) database. A suspension doesn’t erase your offence, but it sets it aside.

To be eligible for a record suspension, you must have (1) completed your sentence and (2) wait the prescribed number of years. You are not eligible if you were convicted of a sexual offence against a minor, or were convicted of more than three indictable offences, each with a prison sentence of two years or more.3

According to University of Toronto criminology professor, Anthony Doob, criminal records are a poor predictor of reoffending. For example, record suspensions can be revoked if you commit a subsequent crime. According to Doob’s research, the record suspension process in the past 40 years has been largely successful; “approximately 96 per cent of pardons that have been granted have not been revoked,” says Doob.4

Having a criminal record can impact your travel, employment, housing, school, and access to social services. If you are looking to apply for a record suspension or have questions about your eligibility, schedule your virtual or phone meeting with Terrance G. Sheppard today.


1  Charron v the Queen, OSCJ File No. 16-67821 and Rajab v The Queen, OSCJ File No. 16-67822.

2 P.H. v Canada (Attorney General), 2020 FC 393 at para 89.

3 https://www.canada.ca/en/parole-board/services/record-suspensions/who-is-eligible-for-a-record-suspension.html

4 https://ottawacitizen.com/news/local-news/retroactive-changes-to-criminal-pardons-found-unconstitutional/

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