Special Attention – Sequestering
Smart Justice Network Canada – June 4, 2022
The Public Safety Canada invited a consultation on sequestering criminal records, i.e. automatically clearing the record of offenders once the sentence of the court is completed. That would mean no more obstacles post imprisonment in housing, employment and the countless other secondary punishments that currently are traceable to the criminal record checks. It would also mean that there would no longer be a need for applications for record suspensions. Kathryn Bliss attended the May 9 consultation and files this report on the initial consultation. Public Safety Canada has called for a follow-up session in early June and SJNC hopes to be able to report on this session as well. Following the Bliss report, we have added the Public Safety Canada website summary.
Automated Sequestering of Criminal Records Consultation with Public Safety Canada:
May 9, 2022
Attended by Kathryn Bliss, Associate Director, Restorative Lab on behalf of the Smart Justice Network of Canada.
This consultation built on the previous government commitments and extensive consultation done over the past 10 years. As far back as January 2016, then Public Safety Minister Ralph Goodale indicated the governments interest in amending the Criminal Records Act. Overall, there was strong support given to the proposal of creating a system that ensures the automatic sequestering of criminal records.
Many of the core organizations working in criminal justice and reintegration in Canada participated in the consultation. This included John Howard Society of Ontario and Quebec, 7th Step Society of Canada, St. Leonard’s Society of Canada, National Associations Active in Criminal Justice, Prison Law, and the Canadian Civil Liberties Association to name a few. A few participants also noted that a coalition of organizations and individuals called the Fresh Start Coalition (https://freshstartcoalition.ca/) has come together around this issue. The Coalition is made up of 85+ civil society organizations that have come together in support of implementing a spent records regime in Canada.
Based on the questions posed and open discussion during this consultation, many of the participants indicated that it would be helpful to look back on previous consultations, recommendations and the extensive data and evidence that suggests the need to reduce the harms associated with the criminal records system. Overall, there was strong support for the need to consider the direct impact of criminal records on a person’s ability to get a job, secure housing, in addition to the challenges of trying to negotiate the bureaucracy of the application process. There were several comments warning of predatory practices from organizations or individuals who are looking to profit from those seeking a criminal record suspension by offering services to assist with the application process for a significant fee.
There were several comments that drew attention to existing research that suggested the direct challenges the current records suspension system has on successful reintegration. Two polls conducted during the session provide a good illustration of the opinions being put forward. The first poll asked “What would you say could be the main benefits of an automated sequestering of criminal records system?” The majority of participants (88%) in the consultation indicated that it would be to increase access to meaningful employment, housing, education. Additionally 67% of participants also indicated a benefit would be facilitate reintegration.
A second poll was conducted which asked: What considerations should be taken into account when implementing an ASCR system? In response the majority (78%) of participants said reducing barriers to accessing meaningful housing, jobs and education, as well as reintegration.
There was some additional discussion highlighting the flawed arguments that the criminal records system helped ensure public safety. It was noted that in many cases the community, public, victim and person seeking a record suspension all have needs that are interrelated in important ways and that it is highly simplistic to differentiate them. Similarly, research shows that the public is not likely to be opposed to pardons if they are given more information and context surrounding different cases. In fact, a Canadian study found that providing a small amount of information about recidivism rates increased people’s agreement to the pardons process.
There were some additional areas identified in this session that would be the focus of further conversations and consultation by Public Safety Canada. This included more focused discussion on issues related to Privacy and Public awareness/education.
If individuals or organizations would like to further engage, they can visit the web-based engagement platform available until the end of June. https://letstalk-criminal-records.ca/ or send an email ASCREngagement-ConsultationRACJ@ps-sp.gc.ca
Public Safety Canada Summary of the First Consultation involving several regional sessions:
ASCR: Summary of the Main Issues Discussed During the Stage 1 Sessions
- Systemic Bias
In Round 1 of our discussions, many participants said they believe that the review process is biased, especially for minority or marginalized groups. They strongly supported ASCR because it removes human judgement from the process, which they thought would reduce bias. On reflection, however, many of the same participants began to worry that an ASCR system could also entrench bias if not carefully developed.
For example, one reason for lengthy wait periods is to see if a person will re-offend. Some participants argued that wait periods are often unfair. Take drug use; in their view, addiction is a medical condition, and one that disproportionately affects BIPOC. Automating the long wait periods for such this type of conviction would simply entrench this bias.
- Safeguards of an ASCR system
When the discussion turned to sex offenders and domestic violence, participants quickly concluded that the suspension process can’t be automated for crimes like these. They are simply too complex to arrive at reliable eligibility criteria. There was general agreement that Canada therefore likely needs a dual program for record suspensions, where one part is automated, and the other is application based. In this case, ASCR would be limited to less serious offences, such as summary offences, and exclude what many considered more serious offences, such as indictable offences.
- Public Safety
Currently, people with criminal records must wait five to ten years before they can apply for a record suspension. Although this wait period is intended to help keep the public safe, most of our participants were skeptical of the result. A criminal record carries a stigma, they said, which greatly restricts the person’s access to housing, employment, membership in organizations, and more. This, in turn, can make reintegration difficult and encourage recidivism. Additionally, some participants expressed scepticism that criminal records enhance public safety.
If the government wants to promote public safety, many of our participants thought that it should shorten or even eliminate wait periods – at least for summary convictions. Once a sentence has been served and the person’s debt has been paid, they should be allowed to rejoin society. Combining ASCR with the elimination of wait times would greatly accelerate the record suspension process, thus reducing the stigma of a criminal record and supporting reintegration. Participants who represent victims felt that wait periods should remain, while others noted that the system should be evidence-based and take into account what research says on recidivism and the passage of time.
- Privacy
ASCR raises important questions around privacy. For example, how will government notify a transient population that the sequestering of their record is under review? Should they be notified? Or consider people with criminal records who have a history of trauma and victimization, such as domestic abuse. They often change their names, emails, phone numbers as they go through the healing process. Many may not want to be contacted and releasing information about their history can be extremely risky, possibly triggering a crisis in their lives.
Additionally, it was raised that permitting employers, landlords, and others to enquire about their criminal records stigmatizes them; it limits their access to basic goods, such as housing and employment, which makes reintegration more difficult.
- Public Awareness
Some participants noted that having a criminal record is a barrier to reintegration and that the common perception is that those who have a criminal record have been convicted of serious and violent offences. Participants felt that a public awareness campaign should address the realities of those living with a criminal record and highlight the fact that most individuals with a criminal record have not been convicted of a serious or violent offence and are contributing members of society. In this view, the best way to promote public safety is through successful reintegration, which, in turn, requires a greater acceptance of people who have been convicted of crimes.
Some participants noted that an effective campaign that could inform those who would benefit from an ASCR system needs to have an outreach element. They voiced that those who have a criminal record do not trust the “system” and would not necessarily be receptive to a standard government awareness campaign. The idea of using community resources, ethnic media, or organizations working with those affected by the criminal justice system were suggested. Others noted that pamphlets at courthouses or through lawyers would also be beneficial.
Published by Public Safety Canada via Lets Talk engagement Portal: June 3, 2022