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2 036-9 BBJOW c; ' ~Gfl,Z> - JULY 20, 1991 TIT 'D... Aw.~ P. al for R form of the criminal Records Act ISSUE There is a need for legislative reform to create a more effective pardons system, to improve service to increasing numbers of eligible offenders, to achieve cost savings and reduce delays in the granting of pardons and to address anomalies in the current Act. The primary aim of a pardon, granted under the Criminal Records Act (~) is the removal, as completely as possible, of the negative consequences of conviction once the offender has fulfilled the sentence and enough time has elapsed to establish, with some degree of certainty, law abiding behaviour. The system of granting pardons has been under pressure due to rising numbers of applications and inevitable delays caused by _ the cumbersome process for review, investigation and decision for ' all applications. Rising volumes of pardon applications have resulted in lengthy process times, backlogs throughout the systemand rising costs. Service to the public has suffered. The current provisions of the CRA, which require a multi-phased interdepartmental process for pardon decisions, introduces delays, creates duplication of effort and leads to increased workloads and costs. The issue is how to best reform the system, while maintaining the important balance required by the objectives of providing relief from the disabilities of a criminal record to an ever increasing number of eligible ex-offenders, ensuring that the public is protected and creating a more efficient criminal records system. BACKGROUND The ~ has been the focus of reform initiatives on three occasions during tbe past decade. These previous efforts at reform resulted in cabinet submissions and draft legislation. While none of these attempts resulted in new legislation being proclaimed, they did identify problems and suggest solutions for comprehensive reform. Problems identified in the process of granting of pardons have been the focus of both administrative and legislative reform efforts. Initiatives in these two areas must be complementary and support the overall objectives of the AQt. Past HV :::onsul tat ions also reve.al support for increased granting of 7315 pardons in a more simplified process, as long as there is not the.a6 appearance of undue leniency. P

3 Copyright of this document does not belong to the Crown. Proper authorization must be obtained from the author for any intended use Les droits d'auteur du present dccument n'appartiennent pas a I'Etat. Toute utilisation du contenu du present document doit etre approuvee prealablement par!'auteur. An interdepartmental Committee, chaired by correct1ons Branch of the Ministry of the Solicitor General Secretariat, has recently reviewed the relevant issues. The goal of the Committee was to propose legislative amendments to improve the current Act and streamline the pardons process. The Committee did not carry out a fundamental review of the purpose and principles of pardons but rather focused on an examination of legislative changes required to direct resources to the more serious cases for pardon, reduce delays and costs for the processing of applications, address anomalies in the current law and respond to criticisms of the Act identified in past consultations. CURRENT PROPOSAL FOR REPORM The Committee has reviewed legislative options for reform of the CRA identified during previous consultations, recommendations which had more recently been proposed by the Chairman of the NPB, options which were contained in legislation proposed by the former Solicitor General (C-64} and by a private member of the House of Commons (Mr. Blenkarn} and those recommendations of an administrative study "Most Efficient Organization" (MEO} of the pardon granting process which would require legislation to implement. It has prepared a set of recommendations for reform of the ~ which are set out, in this its final report. SUMMARY OP PROPOSID RIPORM TO THI CRA Authority to grant all pardons will rest with the National Parole Board. To be eligible for a pardon, all offenders with a record for an offence proceeded with by way of indictment, for a serious drug offence or for a drinking and driving offence, would require as a 1\ minimum, five years of conviction free behaviour in the community 1 after warrant expiry. In addition, a determination of good behaviour would be integral to "decision-making" for these offenders. Additional guidelines could be developed which would identify offences which would normally be the focus of extensive investigation before a decision was made to grant or deny a pardon. This group of offences would involve personal harm or violence, sexual offences and serious drug offences. All other { indictable offences, as well as drinking and driving offences, would require a slightly less rigorous procedure. Parole Board members could request a community investigation if they felt their recommendation would benefit from additional information. Any offender in these categories who commits another indictable offence will have a previous pardon revoked automatically. Upon

4 - 3 - conviction for a summary offence, the pardon could be revoked by the granting body on notice from the RCMP, the Office of the Crown Attorney or local police and following assessment against criteria approved by the Minister. Eligibility for a pardon for offences proceeded with by summary conviction would require a period of three years without conviction in the community following warrant expiry. This would be confirmed through police indices checks at the national and local levels. No additional community investigation of "good behaviour" would be required. After a thorough check that the eligibility criteria had been met, the pardon decision would be non-discretionary. Final authority to issue these pardons would rest with the Clemency Division of the NPB and would not require review of the file or decision by members of the Appeal Division of the NPB. Revocation would also be automatic for conviction for a future indictable offence. If convicted by way of summary procedure, revocation could take place after notice to the granting body. Conditional and absolute discharges will not be treated as convictions for which a pardon is required, and the record will be purged from the record keeping system after the elapse of the relevant eligibility period. The purging would take place one year from the date of receiving an absolute discharge and three years from the date of a conditional discharge. To ensure fairness and in response to the Canadian Charter of Rights and Freedoms, those offenders denied a pardon on the basis of information received during a community investigation would have the right to be informed of the information on which the decision was taken, subject to the provisions of the Access to Information Act and the Privacy Act. StJMMARJ Ol BICOIQIIJDATIOJ!S 1) Relievinq the Reqiatrar General of responsibility to issue all pardon 4ocuaents. The Committee recommends that as an administrative matter, the form of notifying successful pardon applicants could be streamlined and accelerated. Instead of a formal certificate being issued by the Registrar General, such persons would be notified by a letter from the Solicitor General or directly from the National Parole Board (NPB), enclosing an Annex recording the offences for which the pardon was granted.

5 - 4 - As the NPB already notifies the pardon applicant that the pardon has been approved, this will remove a small but unnecessary duplication in work and a significant time delay while achieving the same result. This change was proposed in Bill C-64 and will require legislative amendment. 2) Deleqation of 11 Decision-Kakinq 11 (Relieving the Governor in Council of Order in council decisions) Currently, the Governor in Council (GIC) must review all recommendations for pardon and render decisions in all cases. Delegation or transfer of "decision-making" from the GIC to the NPB could significantly benefit overall processing time. It is recommended that final authority to grant pardons be transferred to the National Parole Board for indictable offences requiring more extensive investigation and eligibility criteria, as well as drinking and driving and certain drug offences (identified in Bill C-64). The NPB would apply more limited criteria and issue pardon certificates for the remaining (summary conviction) offences. Discretion in granting such pardons, if the eligibility criteria was met, would be eliminated. The certificate would be issued as an administrative act after confirmation of crime free behaviour. This function would be carried out jointly by the RCMP and the Clemency Division of the NPB. Clear policy regarding investigation of those cases requiring decision, criteria for decision-making and procedures to govern the application and decision process will be developed. All such policies and guidelines will require Ministerial approval. Rationale a The purpose of the proposal is to reduce delays resulting from the burden of Board recommendation and GIC approval for all pardons under the CRA. It is proposed throughout the reform proposals that investigative and discretionary "decision-making" resources be focused on those cases of a more serious nature, while ex-offenders who are perceived to pose less risk to the

6 - 5 - public be dealt with following a less extensive procedure. The authority to investigate and grant all pardons under the CRA would be removed from the GIC and delegated or transferred to the Parole Board. The Board could be assigned absolute authority for "decision-making" in all cases, including those requiring a discretionary decision following an assessment of the applicant's behaviour, beyond the criteria of crime free status. Such responsibility would be consistent with the Board's authority for conditional release decisions. This would expedite the process and reduce delays and possibly costs in the granting of pardons. Removing the requirement for GIC authority for offences proceeded with by way of summary conviction would further reduce delays by removing one step in the process of granting pardons for these applicants. The delegation from the GIC to the NPB of this more administrative review function, as well as the discretionary "decision-making" role, would also be consistent with current Parole Board responsibilities. 3) Addressinq the anomaly of requirinq those persons receiving discharqes (and therefore no conviction) to apply tor a pardon. Under the current ~' discharges are deemed to be convictions for the purpose of granting pardons and sealing the record. It is proposed that Section 3 of the ~, which deems a person who has been discharged to have been convicted for the purpose of granting a pardon be repealed. This would remove discharges from the ambit of the ~. It is further proposed that information relating to discharges should be recorded and noted as discharges on the "record" and not as "criminal convictions". Limitations on disclosure of the record (~ Sec. 6) would, with appropriate modifications, apply to discharges and, by way of regulations, the RCMP would be obliged to "purge" discharges from the record keeping system. Both benefits would take effect: one year from the date that it was ordered in the case of an absolute discharge; and, three years from the date that it was ordered in the case of a conditional discharge.

7 - 6 - Removal of discharges from the ambit of the pardons scheme would reduce delays for all other applicants and costs for the pardons process. Based on a survey of convictions registered by the police information system in the past year, about 16,721 offenders who received a discharge only are eligible each year to apply for a pardon. The retention of information relating to the discharge, for the periods outlined above, would satisfy the requirements of cc Sec 667 (proof of previous conviction, appeal, autrefois convit) and cc Sec 736 (discharges - Court may consider previous discharges in considering the granting of a discharge). The notation would be purged from the record after the required time had expired from the date of the last entry. This would provide the same protection to persons receiving a discharge as they have now by receiving a pardon. PUrgingwould take place after a delay consistent with the current eligibility period for such applicants to receive a pardon. While the current eligibility periods differ according to the nature of the charge (indictable or summary), it is considered more appropriate to reflect the court decision, and base the waiting period on the granting of either a conditional or absolute discharge. This will ensure that the seriousness and conditions of the case are respected and allows for a responsiveness to judicial "decision-making". It is also essential to ensure that the waiting period is sufficient in all cases where a conditional discharge has been granted to expire after the expiration of any conditions regardless of whether the offence was indictable or summary. currently the grant rate of those applying for a pardon for an offence for which a discharge was given is virtually loot. An additional provision would allow those granted a discharge to request the return of their fingerprints and documents related to the offence for which they have received the discharge from the arresting police service and the court where their case was tried at the end of the specified waiting period. Those applicants who currently receive a pardon may make such a request under the current scheme.

8 - 7-4) Re~orainq Bliqibil i ty Criteria for Pardon Currently, eligibility for all pardons requires a determination of good behaviour. In fact, extensive investigations are rarely, if ever, carried out for summary conviction records. For even serious cases the number of investigations may be unnecessarily large. It is proposed that for offences proceeded by way of indictment (and drinking and driving and certain drug offences identified in Bill C-64) a pardon continue to be.granted only after a determination of both a conviction free period and good behaviour. community investigations, conducted by the police to determine "good behaviour", could be requested, if required by the NPB Appeal Division member reviewing the case, for those offenders applying for a pardon for a record of an indictable conviction. For offences proceeded with by way of summary conviction, the Solicitor General (or the NPB) would cause a pardon certificate to be issued, upon application by the offender and following confirmation of a conviction free period in the community. No additional investigation, by the police or the NPB, of good behaviour would be required. The issuance of the certificate would be an administrative function and not require decision or review by NPB members. It is felt this would lead to substantial reduction in delays in granting pardons and achieve other efficiencies for the system. The length of time for eligibility would be extended from the current two, to three years in the case of these summary conviction offences to help ensure that this conviction free period truly indicated changed behaviour and crime free status. A provision in the ~ (or the accompanying regulations) would be made to allow for a mandatory delay of limited duration in "issuing" a pardon certificate, where the applicant is the subject of an ongoing police investigation or charge. The criteria to be used in determining an ex-offender's status as a "law-abiding" member of the community was reviewed. The requirement of a community investigation of loosely defined indications of "character" for all offenders may be an unnecessary adjunct to determining eligibility on the basis of conviction free behaviour.

9 - 8 - It is probable that of those denied, few, if any, would be applicants who have a record for a summary conviction offence, other than drinking and driving. Focusing investigative and "decision-making" resources more clearly on indictable offences and drinking and driving offences is both possible and efficient. The criteria for eligibility for a pardon for summary conviction offences would require three years of conviction free behaviour in the community following the expiration of the sentence. This eligibility period is extended from the current two years to make it at least as long as the proposed waiting period for conditional discharges (three years from date of discharge) and to provide even greater assurance that the period is an adequate measure of continuing crime free behaviour in the community. A check of police indices would be conducted to verify that the criteria of conviction free period was met. If an investigation at the national or local police levels indicated that an ongoing investigation of criminal activities was underway, the pardon application would be delayed pending the outcome of the investigation. A full community investigation of good behaviour would not be required. After a thorough check that the eligibility criteria (conviction free period) had been met, the pardon decision would be non-discretionary. Final authority to issue a certificate of pardon would rest with the Minister (or be delegated to the NPB), without the requirement for a review of the case by a NPB Appeal Division member. These offenders, if convicted of an indictable offence at any time in the future, would have their previous pardon revoked automatically. A new conviction for a summary offence could result in a revocation upon notice to the granting body and assessed against criteria approved by the Minister. The sealed records would also be accessible to the courts for sentencing if future crimes were committed, upon application to the Solicitor General, as is currently the case. By setting the pardon eligibility criteria for these offenc.. trictly as a period of crime free behaviour, decision to issue a certificate could be rendered by authorized staff of the NPB. The proposal would result in a reduction in processing time as the pardon would be "issued" immediately after police indices checks. It is felt that this would result in substantial delay reductions for the granting of pardons for summary conviction offences.

10 - 9 - The proposal to delay decision in the instance of an ongoing criminal investigation would allow for the consideration of community and police information regarding the renewal of criminal behaviour while still applying the concept that denial of a pardon for a summary conviction should result only from proof of new criminal behaviour. 5) Retaining the features of Bill C-64. It is proposed to retain the features of Bill C-64. These provisions delay eligibility for pardon for five years for all drinking and driving offences, as well as serious drug offences. Under the proposed amendments, drinking and driving and drug offences would require the same eligibility criteria for pardon as indictable offences. It is important to identify drinking and driving offences, as well as serious drug offences, whether proceeded by way of summary or indictable conviction, as requiring a delayed eligibility to respond to the public concern over the tragic consequences of these crimes. This recommendation is compatible with the Directions for Reform discussion paper. 6) creating a Sch.. e ot Automatic Revocations Revocation of pardons currently requires an application to the Minister, an investigation and a decision. The Committee recommends that revocation of a pardon should alwaya be permitted in cases where it is proven that the pardon waa granted on the basis of false or fraudulent statements. It is also proposed that revocation should be automatic tor those who are convicted of new indictable offences. Revocations for those persons convicted of offences proceeded with by way of summary conviction would require application and decision in line with current practice.

11 The structuring of the current discretionary grounds that the offender is "no longer of good conduct" was discussed. Revocation only takes place after conviction for a new offence and only for certain offences. The purpose of a pardon should be to provide protection in the community to ex-offenders who are law abiding, and should not extend to providing protection to offenders who have committed further serious offences. The provision would reduce delay in revocation for serious offences and balance the possibility that an offender may have received a pardon for a summary conviction (based on conviction free period) yet be engaged in serious criminal activity that was unknown at the time the pardon was granted. 7) Expandinq Extent of Relief The Committee recommends maintaining the status quo in that - no "deeming" provision be added to the ~. Proposals have been made in the past to add a "deeming" provision to the ~ to allow those who receive a pardon to deny the conviction. The Committee recommends that this not be added to the ~ but that publications of the NPB explaining the pardon process indicate the practical effects of having records "sealed", pointing out that information will not be released except upon a decision to "unseal" the record or the revocation of the pardon. In light of the prov1.s1.ons of Sec. 736 of the Criminal Code it would be correct for individuals, having received an absolute or conditional discharge, to state that they have never been convicted of that offence. This protection could be extended to pardon recipients. such provisions were contained in a number of previous proposals for reform of the ~ and currently apply to young offenders (Young Offenders Act Sec. 36 "Right of deniability"). While not havinq any legal consequence in foreign jurisdictions, which will act on mere suspicion of past arrest in many cases, and while not having a practical value in smaller communities where word of mouth knowledge of past conviction would contradict the denial, such a change would provide enhanced protection to the vast majority of pardoned ex-offenders in urban areas who request a pardon for employment, insurance and bonding purposes as well as for ease of mind. It is however difficult to legislate in this area as the federal

12 government has little control over the types of questions which could be asked of an ex-offender (i.e., if it was deemed that the conviction never took place, employers might ask if a job applicant had ever been arrested). In addition there has been some resistance in the past to what has been referred to as legislated lying. 8) Improvinq access to pardoned records for police and courts It is recommended that the record of convictions, discharges and related information contained in pardoned records, continue to enjoy the current level of protection. Access to this information would only be allowed upon application and decision by the Solicitor General. It is further recommended that, notwithstanding the fact that a person has received a pardon, his/her name, date of birth, and last known address only, be immediately released to accredited police agencies when a fingerprint has been positively identified to the subject during: a) an investigation of a crime where the fingerprint was found at the scene; b) an attempt to identify a deceased person; c) an attempt to identify an individual suffering from amnesia. This proposal would be initiated through an amendment to the existing Ministerial Directive on the release of criminal History Information, or could be prescribed by regulations accompanying the ~- Rationale a Each year there are many instances where a great deal of time, effort and human and fiscal resources are expended in an attempt to identify individuals under the circumstances noted above. Even though authorities make every effort to expedite the matter, disclosure is often delayed for days or weeks before the Minister has the opportunity to review the case and rule on the matter. In the interim, family members of deceased or amnesia victims are denied important information and investigative resources are needlessly expended. In some instances, criminals are given ample time to leave the area and avoid apprehension. The release of name, date of birth and last known address, without

13 reference to the pardoned record, would be in the interest of the public. While release of this information is desirable, there are too many identified difficulties in providing law enforcement agencies and courts with the criminal record itself without following the normal disclosure route and access to this additional information is not recommended. 9) compatibility of proposed changes to CRA with other federal statutes It is proposed that a Schedule, which could be amended by the GIC, be created and appended to the ~- It would list federal Acts, federal Statutes or specific provisions of statutes which may require exemption from the ~- This could be amended to ensure that certain specific provisions, or prohibitions or disqualifications which flow from a - federal statute or Act, which are not part of the sentence itself, remain in force notwithstanding the granting of a pardon. It is further recommended that a reference be added to the effect that nothing in the A&t would prohibit the keeping of some records by the Department of National Defence in respect of members (and former members) of the Canadian Forces for such bona fide employment purposes as are necessary for the internal discipline and administration of the Canadian Forces, and for security clearance purposes, subject to the Canadian Human Rights Act. It is important to create a vehicle to address future anomalies and exceptions, without the requirement that the legislation itself be amended in every instance. One example would be the need to ensure that a prohibition against owning a firearm, imposed by a court, which may extend past the eligibility period for a pardon continue in force. While the applicant would be able to benefit from the other protections of a pardon, a provision would be made to explicitly state, in the Schedule, that prohibitions imposed under the Firearms and Offensive Weapons Sections of the Criminal Code would continue in place. A similar exemption might be required for lifetime driving bans imposed in addition to any other penalties in a case of vehicular homicide.

14 --- -~ -~ It is also necessary to ensure that the provisions of the ~ address the unique needs of the military for record keeping for personnel and other administrative matters. 10) Creatinq a Pea-for-service Schedule RecoDIJilendation: It is recommended that there be prov~s~on for creating a schedule of fees, which could be set out in Regulations and amended whenever necessary in the future. If, after study, it is decided to impose user fees for pardons, the fee for service structure should be clearly set out in regulations subject to approval by the GIC upon recommendation by the Minister. TBCJDfiCAL AMBHDXBNTS 1) Transfer of Offenders Act It is recommended that the provisions of the ~ apply to the records, in Canada, of those offenders repatriated under transfer of offender agreements pursuant to the Transfer of Offenders Act. The availability of pardons to persons transferred under the Transfer of Offenders Act is necessary to permit such exoffenders to request that their institutional and other correctional records be sealed at some point. This proviaion would apply to relatively few offenders per year. It stands to reason that offenders transferred to Canada should be afforded the same remedies as are offenders convicted in Canada. Currently, offenders are advised, prior to transfer, that their transfer to Canada will not constitute a criminal record pursuant to the ~. Experience has shown however that other forms of records are maintained, their effect being equivalent to that of a criminal record. Conse~ently, transferred offenders now have records in both countries with the inability to obtain a pardon from either. The Correctional Service of Canada

15 currently has one documented case of such inequitable treatment. 2) compatibility ot proposed chanqes to ~ with the Code of service Discipline in the National Defence Act It is proposed to revise the current wording of the CRA which categorizes all offences under the Code of Discipline as requiring five years of conviction free status and good behaviour to be eligible for a pardon. The military is proposing a system of "serious" and "less serious" offences based on the sentence awarded. This categorization would be followed by the NPB for the purpose of determining waiting periods for eligibility for persons with records for military offences. All offences under the National Defence Act are treated in the same manner, and not categorized as either summary or indictable. To deal with this group of offences in a way compatible with the Canadian Charter of Rights and Freedoms requires some categorization, but the traditional distinction of summary or indictable does not apply.

16 HV 7315.AS P Proposal for reform of the Criminal Records Act (CRA)