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PARDON OR RECORD SUSPENSION

Thursday, May 21, 2020 @ 9:06 AM  


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Application by PH for a declaration of constitutional invalidity and related relief. In 2010 and 2012, Parliament amended the Criminal Records Act governing, among other things, the suspension of criminal records for offenders who subsequently achieved rehabilitation. The amendments increased the waiting period to apply for a record suspension and changed the applicable criteria. The transitional provisions within the amending legislation, s. 10 of the Limiting Pardons for Serious Crimes Act and s. 161 of the Safe Streets and Communities Act, stated that the amendments applied to all new record suspension applications regardless of when the offence was committed or when the offender was sentenced. In 2010, the applicant was convicted of a sexual assault that occurred in 2009. Prior to the adoption of the transitional provisions, the applicant would have been eligible to apply for a record suspension in 2018. Under the transitional provisions, the applicant was ineligible to apply until 2023. Prior decisions in British Columbia and Ontario found that the transitional provisions infringed ss. 11(h) and 11(i) of the Canadian Charter of Rights and Freedoms (Charter). Thereafter, the Parole Board applied the old provisions to British Columbia and Ontario residents, but applied the amended provisions to residents of all other provinces and territories. The applicant, a resident of Quebec, sought a declaration that the transitional provisions giving the amendments retrospective application were of no force and effect with related relief. The Crown consented to the relief sought.

HELD: Application allowed. The Federal Court had jurisdiction to grant the relief sought, as it related to the legality of the retrospective application of a statutory grant of jurisdiction to a federal board by Parliament, involving federal statutes dealing with the federal government’s exclusive jurisdiction over criminal law. There was sufficient evidence before the court to support a declaration of invalidity, as the issue before the court was primarily one of law and the prior related cases demonstrated reasonably foreseeable situations where the impugned law applied and established that criminal records significantly affected liberty and security interests. The interests of justice required a consistent application of s. 4 of the Criminal Records Act across Canada. A criminal record constituted part of an offender’s original punishment for the purpose of s. 11 of the Charter. The retrospective effect of the impugned transitional provisions increased the duration of an offender’s criminal record automatically, without regard to personal circumstances, and thus had the effect of adding to that punishment in violation of ss. 11(h) and 11(i) of the Charter. The Crown put forward no arguments to justify the violation pursuant to s. 1. The impugned transitional provisions were declared invalid with injunctive relief granted requiring the Board to consider the applicant’s application for a record suspension in accordance with the pre-amendment provisions.

P.H. v. Canada (Attorney General), [2020] F.C.J. No. 396, Federal Court, S.E. Roussel J., March 19, 2020. Digest No. TLD-May182020008