Law Times

Law Times • may 30, 2016 Page 11 www.lawtimesnews.com Legal Aid Ontario calls for return of pardons BY YAMRI TADDESE Law Times L egal Aid Ontario is calling on the federal government to bring back the criminal record pardon process for former offenders who no lon- ger pose a threat to society. The pardon process was replaced in 2012 with a record suspension system that comes with more stringent eligibility criteria and huge costs. With the changes in 2012, the application fee for record sus- pension went up to $621 from $150. The Parole Board of Can- ada is currently holding an on- line consultation on those fees as part of "a costing validation exercise." The consultation runs from May 9 to June 6. The amendments to the Criminal Records Act also meant those who were convicted of summary offences had to wait five years, instead of the previ- ous three years, to apply for re- cord suspension. For indictable offences, the wait time went up to 10 years from five years. Earlier this year, Legal Aid Ontario CEO David Field spoke to the Standing Senate Com- mittee on Legal and Consti- tutional Affairs. In one of his recommendations, Field said it's time to bring back the previous pardon process. "Canada's new record suspen- sion process, which replaced the pardons process, is costly, com- plicated, and a barrier to finding employment and participating fully in the community, includ- ing through volunteer work," Field later wrote on LAO's web site. "LAO's Aboriginal Issues Advisory Committee to the Board has advised LAO that the record suspension process has a particularly negative impact on Aboriginal people." Danny Morton, policy coun- sel at legal aid, says the cost of the new system is the biggest issue for LAO's clients. "We do represent primarily or almost exclusively low-income Ontarians. The increased cost makes it really prohibitive for most of our clients to access [the] pardon system," Morton says, adding this effect is more pro- nounced for indigenous com- munities, visible minorities, and those with mental illnesses. "The cost and complex pro- cess, and secondary conse- quences, affect these vulnerable sectors far greater than the gen- eral population," Morton adds, noting the prejudicial effect of having a criminal record also compounds existing discrimi- nation in employment, rental housing, education, travel, and gaining custody of children. The cost of applying for re- cord suspension does not in- clude the fees former offenders have to pay to collect documents from courthouses, police, and fingerprinting agencies. Within a year after the fee to apply for pardon quadrupled, applica- tions dropped by one-third compared to the previous year, Morton says. With a new federal govern- ment, there's some appetite for revisiting the rules. According to the CBC, Liberal Public Safety Minister Ralph Goodale wants to review what he called "puni- tive" changes to the system. "The punitive purpose of a sentence should ultimately end with the expiry of that sen- tence," Morton says. "Really, there shouldn't be any punitive effects upon somebody with a criminal record once their sen- tence has expired." The Parole Board assesses whether the former offender has been of "good conduct" after completing his or her sentence and fulfilling other orders. Criminal lawyer Jordan Donich says because a former offender now has to wait longer before he or she can apply for record suspension, the Parole Board has to scrutinize the per- son's conduct over a long period of time before making a decision. "Less things can go wrong in a year that can be used against you, [but] in 10 years, there is more that can be dug up," Donich says. "The new system is highly scrutinized, it's very sub- jective. Even if you go through all the work of getting an ap- plication completed . . . a good chunk of them are still denied by a board member." Donich also takes issue with the kind of things the board looks at to determine whether a former offender has been of "good conduct" since having served his or her sentence. "What the Parole Board will do is not only pull criminal re- cords, they'll pull every single interaction you've ever had with the police since the offence. They'll even pull your driving [record] and they'll use, I guess subjectively, some of those rea- sons as a basis to deny the appli- cation under the Criminal Re- cords Act," Donich says. "Most of the conduct for which a per- son is denied isn't criminal, and that's important." Donich would also like to see a longer appeal window for applications that have been re- jected. There is currently only a 90- day time frame to appeal deci- sions, he says, adding that's not enough time to prepare for ap- peal. Under the current rules, anyone who has more than three indictable offences, or is convicted of a sexual offence in- volving children, is not eligible for record suspension. When a criminal record is suspended, it is sealed and kept away from other criminal records. The change to the Criminal Records Act also resulted in a massive backlog for applications received before 2012 at the Parole Board of Canada, which determines if convicted individuals have met the burden of proof required to have their records suspended. In May, the board was pro- cessing applications from Au- gust and September 2011. On its web site, the board said the backlog is a result of the amend- ments to the Criminal Records Act in 2010. "These changes to the CRA significantly increased the com- plexity and amount of work re- quired by the PBC to process a pardon application," it said. LT FOCUS Danny Morton says the prejudicial effect of having a criminal record compounds existing discrimination in other areas. 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