Law Times

PAGE 10 FOCUS December 12, 2011 • Law Times Pardons become record suspensions But name change just the beginning of new realities, lawyer says BY GLENN KAUTH Law Times F orget the word pardon. With the passage of the omnibus crime bill, the term now becomes record sus- pension. Of course, it's not just words that are changing. Under Bill C-10, the govern- ment has extended the waiting periods to apply for a record suspension to fi ve years from three years for summary of- fences and to 10 years for indictable matters. At the same time, it has made certain people ineligible for a record suspension, including those convicted of a sexual off ence involving a minor as well as those convicted of more than three off ences, each of which was pros- ecuted by indictment or was subject to a maximum sentence of life in jail. "Your entire life is completely de- railed by this one mistake," Toronto criminal defence lawyer Roots Gadhia says of the implications of a criminal conviction as a result of the changes. But it's not just the bigger changes in the omnibus bill that are aff ecting peo- ple with criminal convictions. Smaller changes, such as the increased cost of getting a pardon, are also making things diffi cult for low-income people, says Gadhia, who estimates the process now costs about $650 to $700, up from $75 in the past. Th at's due in part to added steps in the process and new require- ments around things like fi ngerprints, she notes. Bill C-10 isn't the only recent change to the pardon system. In June 2010, Parliament passed Bill C-23A in re- sponse to the looming pardon eligibil- ity of Karla Homolka. Among the many changes, the bill gave the National Pa- role Board the authority to consider whether granting a pardon would bring the justice system into disrepute. In doing so, it can take into account the nature, gravity, and duration of the of- fence, the circumstances of it, and any information on the applicant's history. Th e result, according to Gadhia, is a reduced chance of getting a pardon for some off enders. "Record suspension is no longer automatic," she says. "In the 'The lasting effect of a criminal conviction can't be understated,' says Roots Gadhia. past, you would get your pardon. Th ere was a considerable amount of reliabil- ity or guarantee in the pardon process. Now it's no longer a guarantee. It is a decision to be made as opposed to [say- ing], 'You've done what we require of you.'" Other changes in Bill C-23A includ- ed an extension of the waiting period to 10 years for serious personal injury off ences. In addition, it allowed for a notation in the criminal records system that a pardon had been granted for cer- tain sexual off ences. Brad Heron, owner of Pardon Granted in Toronto, says there has been talk that the parole board will soon increase its administrative fee to $630 from $150 currently. But he doesn't be- lieve the legislative changes so far have altered the landscape that much for the people he sees. He notes that among the clients his fi rm helps to apply for a pardon, the overwhelming majority are successful. "Th e only reason we'll get denied is if a client doesn't disclose something," he says. "When the documents are prepared properly, there's generally no issue in getting a pardon," he adds. Heron notes the process can take a while — often up to 12 to 14 months — but says that's likely due to the vol- ume of applications at the parole board. Nevertheless, he has been seeing more people looking for help recently. "I can tell you, the last couple of months, per- sonally, I've been busier," he says. Th e longest part of the process is get- ting fi ngerprints back from the RCMP, which Heron says can take up to three months. In addition, his fi rm has had to raise its prices somewhat in order to take additional steps to ensure the ap- plicant's success, including getting mul- tiple letters of reference to the parole board. Nevertheless, Heron says getting a record suspension is becoming increas- ingly important for people. Th at's be- cause more and more employers are in- cluding the lack of a criminal record as a term of employment. Even insurers will try to deny coverage to businesses that hire people with criminal records when they've suff ered some sort of loss such as theft, says Heron. Th e result is an even greater incentive to require people to have clean records, he notes. In one case, in fact, Heron has a client who needs a pardon for an im- paired driving conviction in order to go to teacher's college. Others are landed immigrants with a conviction who now want to apply for citizenship. For Gadhia, it's issues like those that make pardons a key issue for people. With 2.8 million criminal records held in the RCMP's central repository in Ottawa, it aff ects a lot of people, she says. "It does aff ect somebody that you know," she says, noting a lot of people end up with criminal convictions for breaches after receiving a conditional discharge and probation for a minor of- fence. Th e result, in her view, is that people now face punishment for life due to the added roadblocks in getting a pardon. "Th e lasting eff ect of a criminal convic- tion can't be understated," she says. Heron, though, doesn't think things are changing that much. "I don't think it'll necessarily become more diffi cult," he says, adding he's not worried about the name change to record suspension either. "Just a diff erent term," he says. Another pardon company, however, says the changes have been signifi cant. Azmairnin Jadavji, president of Pardon Services Canada, notes that when his company began operations in 1989, the pardon fee was $50 and the processing time was about six months. "Now they take about two years," he says, reiterat- ing Heron's comments that the fee is now likely to go up to $630 from the current $150. Like Gadhia, he believes the legisla- tion will aff ect a lot of people, particu- larly since 13 per cent of the population has a criminal record. Still, he empha- sizes that those who might want to rush an application in order to beat the new restrictions are likely out of luck. Th at's because it takes several months to get the information required from the RCMP in order to make the appli- cation, meaning the changes will have taken eff ect by the time they get it. "It's mean-spirited legislation, for my two cents' worth," says Jadavji. UNDERSTAND THE LAW GOVERNING POLICE POWERS NEW EDITION SALHANY'S POLICE MANUAL OF ARREST, SEIZURE AND INTERROGATION, TENTH EDITION IAN SCOTT AND JOSEPH MARTINO AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Salhany's Police Manual of Arrest, Seizure and Interrogation, Tenth Edition is an essential reference for law enforcement officers to ensure compliance with the strongest requirements of the Criminal Code and the Canadian Charter of Rights and Freedoms. In print for 25 years, the pocket-sized manual covers key portions of legislation and case law relating to lawful policing. This edition is written by a new author team from Ontario's Special Investigations Unit, upholding a legacy of exacting erudition established by The Honourable Roger E. Salhany, Q.C. WHAT'S NEW IN THIS EDITION • Updates the discussion of police powers under Federal and Provincial statutes, sealing orders, counterfeit money, recording statements and vulnerable witnesses • Highlights all of the most important case law since the last edition in 2009, including significant cases coming out of the Supreme Court of Canada such as Nesbeth (2008, Ont. C.A.), Grant (2009, S.C.C.) and Harrison (2009, S.C.C.) ORDER # 984882-60607 $64 Softcover 380 pages November 2011 978-0-7798-4882-9 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. www.lawtimesnews.com

• Cover
• Return to Roots
• Religious Guidance
• Focus on Criminal Law