Government inaction to blame for unequal access to criminal pardons, lawyers claim

A lawyer who fought to overturn a controversial part of the criminal pardon process is calling for change from the federal government, saying his clients are still caught in a tangle of red tape.

Lawyers say it's unfair to expect those outside Ontario and B.C. to mount individual constitutional challenges

Public Safety Minister Ralph Goodale first promised changes to the criminal pardons system in January 2016. (John Woods/Canadian Press)

A lawyer who fought to overturn a controversial part of the criminal pardon process is calling for change from the federal government, saying his clients are still caught in a tangle of red tape.

In 2010 Parliament passed legislation that doubled the waiting period for people to apply for a record suspension — more commonly referred to as a pardon. Those convicted of a serious criminal offence suddenly faced a decade-long wait instead of five years before being permitted to apply for a record suspension.

The law also applied retroactively to offenders who had already been sentenced and even served their time. 

"Every day that goes by where applications aren't processed is a continuation of a charter breach and a violation of our constitution," lawyer Michael Spratt told CBC News.

"This could be a case where if things aren't remedied swiftly, and constitutional norms aren't honoured, then there might indeed be a cause for action."

Offenders most often seek a pardon in order to get a job, volunteer in the community, rent an apartment or travel.

Sections of act struck down

In April, B.C. Supreme Court Justice Heather MacNaughton decided the case of Ricky Martin Chu. MacNaughton struck down the retroactive sections of the Criminal Records Act, saying they violated offenders' rights to not have their punishment increased after they've been sentenced. The federal government chose not to appeal the decision.

Two months later, an Ontario court followed suit in a case where Spratt acted for Michael Charron and Joseph Rajab.

In the decision, which was consented to by the federal government, Ontario Superior Court Justice Ryan Bell declared section 10 of the Limiting Pardons for Serious Crimes Act and section 161 of the Safe Streets and Communities Act unconstitutional and of no force and effect.

Spratt said he immediately wrote to the Parole Board of Canada (PBC) to ask how his two clients should proceed.

Michael Spratt, a criminal defence lawyer in Ottawa, said the federal government's plan to legalize pot could lead to too many criminal charges for youth. (CBC)

"The Government of Canada is currently reviewing this court decision. More information will be shared on our web site once it becomes available," reads the response he received from the parole board.

Spratt, however, says there's not much to review.

"The Ontario decision is very short, there's no nuance there," said Spratt.

Vancouver lawyer Eric Gottardi represented Ricky Martin Chu in the B.C. case decided in April. Gottardi said his client experienced the same rigamarole. 

"It took them a number of months for them to get their act together," he told CBC News, adding that Chu's application is now being processed under the pre-2010 regime.

In an email, a spokesperson for the parole board said applications for record suspensions from B.C. and Ontario have been triaged to figure out what version of the law should be used to process files. 

"The Parole Board of Canada is communicating directly with clients as needed and pardons have been awarded in instances where the application is impacted by one of these court rulings," said the spokesperson in an email.

Regional disparity

But the board said nothing changes for anyone living outside those two provinces.

In the days and weeks after his win in the B.C. Supreme Court, Gottardi said he was deluged with calls and emails from people across the country looking for advice. He told CBC News some even asked if they could open a post office box in B.C. in order to file a fresh application for a record suspension.

"It's really unfair. I appreciate it's how the system has to work but they're only provincial precedents because the feds chose not to appeal the rulings," Gottardi said, noting there's no reason why someone in New Brunswick should be judged on different criteria and pay a different fee than residents of Ontario or B.C..

"The answer that you have to hire your own lawyer to mount a constitutional challenge in your province? It's next to impossible. That's no real remedy."

When asked how many people have applied for pardons as a result of the recent court cases, the parole board said it has no way of knowing.

Swift action needed: Spratt

But after his case in June, Michael Spratt said hundreds of people contacted his office looking for help.

"If you live in a province other than Ontario or B.C., the unconstitutional retrospective increase in waiting periods apply to you and there's nothing the parole board can do about that," said Spratt.

"The only people who can actually effect that change and make sure that everyone in Canada receives the same constitutional protection is the federal government and that is through swift, legislative action."

Spratt said he expected the government would have introduced a tightly focussed bill in response to the B.C. case last spring, but none surfaced.

"We are reviewing the changes to the record suspension system to ensure its fair," said a spokesperson for Public Safety Minister Ralph Goodale.

The spokesperson said there was a series of consultations in 2016 on record suspensions. 

"The results of these consultations are being used to inform future legislation to reform the pardon system," he said.