Tough-on-crime criminal record change held unconstitutional by BC judge

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Last month, a BC Supreme Court judge held a change in the criminal pardons process is unconstitutional. In 2012, the Conservative government changed the Criminal Records Act to double the amount of time a person convicted of an indictable offence must wait to apply for a criminal record suspension, from five years to ten years. The change was also made retroactive, meaning that it affects all decisions made in the past. For Ricky Martin Chu, whose sentences for offences expired in 2009, this meant he had to wait till 2019 rather than 2014 to apply for a criminal record suspension.

Mr. Chu brought a case against the government of Canada, arguing that the increase in wait time was unconstitutional. The time an offender must wait to apply for a criminal pardon significantly affects many aspects of their life. Having a criminal record affects a person’s ability to get a job, housing, loans, and more. Mr. Chu had put off finishing his higher education because he did not think he would qualify for professional certification while he waited till 2019 when he could suspend his criminal record.

Justice McNaughton found the rule was contrary to the Charter of Rights and Freedoms. The Charter states that an offender cannot be punished twice for their offence. The change to the criminal pardons process was considered a second punishment by the BC judge, because it deprives a person of their liberty, it has unpleasant consequences, and there is stigma or public condemnation attached to it.[1] Justice McNaughton wrote that she was “not satisfied that the Crown has established a rational connection between the increased ineligibility periods […] and the enhancement of public safety or support for the sustained rehabilitation of individuals with criminal records.”[2]

It is of note that the current Liberal government continued to defend the increase in waiting time made by the Harper administration. Public Safety Minister Ralph Goodale had previously said in January 2016 that some changes made by the Conservatives were “punitive” and would be reviewed. However, in a similar case being heard in Ontario, the government argued that having a criminal record is administrative, and not punitive in any way.

The government is reviewing the decision by the BC Supreme Court, which could include determining whether to make changes to the criminal record system, or whether to appeal the judgement.

This blog post was written by a CCLA summer student. Views expressed do not necessarily reflect the view of the CCLA.

[1] Chu v Canada (Attorney General), 2017 BCSC 360 at para 129.

[2] Ibid at para 276.

1 Comment on "Tough-on-crime criminal record change held unconstitutional by BC judge"

  1. Peter Madison | 01/06/2017 at 2:37 pm |

    Hi,

    I just wanted to make you aware of the fact that, although I wrote to the Parole Board of Canada twice, seeking to submit my application for pardon under the pre-existing rules and criteria, they are refusing to process any such record suspension applications, submitted by B.C residents, their reason being:

    “Since the Government of Canada is still reviewing this court decision, there are currently no procedures set out at this time”

    Interesting since this Attorney General chose NOT to appeal this B.C. decision.

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