What is punishment? Are criminal records punishment? These are just some of the questions the British Columbia Supreme Court recently grappled with in a constitutional challenge to federal laws passed in 2010 and 2012 making it harder for convicted criminals to obtain record suspensions (commonly known as ‘pardons’).
The federal government passed laws in 2010 and 2012 amending the Criminal Records Act to increase the ineligibility period for a pardon application, and increase the criteria for obtaining a pardon. The amendments were partly in response to public outcry over the parole board’s decision in 2007 to pardon James Graham, a former hockey coach convicted of sexually abusing boys under his care. There was a general concern brewing that the pardon process had become too automatic.
The federal government made the amendments “retroactive” when the laws came into effect, meaning they applied to individuals who already had criminal records and were awaiting their pardon eligibility.
The plaintiff in this case was a 42-year-old property developer who, despite several convictions for drug and firearm offences in his 20’s, is now a law abiding father of three. When the amendments came into force, his pardon eligibility changed from May 2014 to May 2019, and required him to meet the additional criteria to obtain his pardon. He argued this amounted to “increased” or “additional” punishment, contrary to his right under Section 11 of the Charter of Rights and Freedoms to be punished only once for the same offence.
Accordingly, the court was required to consider whether a criminal record in Canada is actually part of an offender’s punishment, or merely an administrative effect of conviction. Of course, if recording the fact of conviction is not part of an offender’s punishment, then increasing the pardon criteria does not increase an offender’s punishment.
What is punishment
The Court canvassed the jurisprudence on punishment under section 11 of the Charter, and determined that “punishment” for a crime goes beyond jail or probation to include other consequences of conviction. Punishment, they say, includes anything that is part of the arsenal of court sanctions which are either (a) imposed to further the principles of sentencing, or (b) significantly impacts an offender’s liberty or security by limiting their ability to engage in lawful conduct, or imposing barriers on them not imposed on the general public.
Criminal records are punishment
The challenge was successful. The court found that the recording of criminal convictions is part of an offender’s punishment. The court notes it has all the hallmarks of punishment: deprivation of liberty, unpleasant consequences, stigmatization and public condemnation. It also notes the Criminal Code, through the discharge provisions, clearly contemplates criminal records as a sentencing option designed to further the sentencing principles of deterrence and denunciation.
Once it was established that criminal records are part of the punishment, the court saw its way to concluding that applying new pardon criteria to existing offenders amounts to increasing their original punishment, contrary to Section 11 of the Charter. The violation was not saved by Charter Section 1, failing both the rational connection and minimal impairment aspects of the Oaks test.
The result: The provisions applying the new pardon criteria to existing offenders are, at least for the time being, of no force and effect.
Take home for citizens and the Canadian government
The court in this case canvassed the jurisprudence and set out a helpful roadmap for what counts as “punishment” under Section 11 of the Charter. The decision may prompt individuals convicted of crimes in Canadian courts to consider whether other legislation passed, or correctional policies adopted since their convictions amount to an unconstitutional additional “punishment”. Further, the Canadian government may wish to consider the decision before passing future legislation designed to negatively impact the circumstances of existing offenders.