Bill C-23B is not one that is likely to have much opposition support. Fact is, Pardons and Record Suspensions, are not politically popular subjects, and therefore not likely to garner much support. As the video below suggests, the bill is likely to be passed.

Below is a summary of the proposed Bill C-23:

Bill C-23, Eliminating Pardons for Serious Crimes Act, would amend the Criminal Records Act and other Acts. The current system of pardons would be replaced, and “pardons” would be replaced by a more restrictive and narrowly defined “record suspension.”

To be granted a record suspension:

• the applicant must not have been convicted of an offence involving sexual activity relating to a minor – as set out in a schedule of specified offences – unless the applicant can demonstrate s/he was “close in age” and that the offence did not involve a position of trust/authority, bodily harm or threat of violence/intimidation;
• the applicant must not have been convicted of more than three (3) offences prosecuted by indictment.

The National Parole Board (NPB) may order a record suspension if it is satisfied that:

(For summary conviction offences):

• during the applicable waiting period, the applicant was of good conduct and was not convicted of an offence under an Act of Parliament;

(For indictable offences):

• ordering the record suspension would provide a measurable benefit to the applicant; would sustain his or her rehabilitation in society as a law-abiding citizen and would not bring the administration of justice into disrepute.
• The onus is on the applicant to satisfy the NPB that a record suspension would provide a measurable benefit to themselves and sustain their rehabilitation as a law-abiding citizen.

In determining whether the ordering of a record suspension would bring the administration of justice into disrepute, the NPB may consider:

• the nature, gravity, and duration of the offence;
• the circumstances surrounding the commission of the offence; and
• information relating to the applicant’s criminal history.

The NPB shall, within three (3) months of the end of each fiscal year, submit to the Minister a report containing the following information:

• the number of applications for record suspensions made for both summary conviction and indictable offences;
• the number of record suspensions ordered and the number of record suspensions refused in respect of both summary conviction and indictable offences;
• the number of record suspensions ordered, indexed by the offence to which they relate and the province of residence of the applicant; and
• any other information the Minister may require.

The NPB may disclose decisions that order or refuse to order record suspensions, though it may not disclose information that could reasonably be expected to identify an individual (unless authorized in writing by that individual).

These measures will come into force on Royal Assent as follows:

• applications received on or after the day of coming into force will be disposed of under the new measures;
• applications received prior to coming into force and not disposed of will be governed by the previous rules.

The Pardon Society of Canada, is keeping a keen eye on the progress of Bill-C23B, the second part of Bill-C23 (Bill C-23A having been passed earlier this year), through Parliament. Bill-C23B seeks to rename Pardons – Record Suspensions.

This same session, resulted in a related request by the National Parole Board to raise processing fees, which were passed in session.

This is the most recent session on the subject before the Canadian Senate Verbatim, as held on November 23, 2010:

The Senate proceeded to consideration of the twelfth report of the Standing Senate Committee on Legal and Constitutional Affairs (National Parole Board User Fees Proposal, with observations), presented in the Senate on November 23, 2010.

Hon. John D. Wallace moved the adoption of the report.

He said: Honourable senators, on September 27, 2010, the Standing Senate Committee on Legal and Constitutional Affairs received an order of reference from the Senate to review and examine a proposal submitted by the National Parole Board to increase the fees collected by the board for processing pardon applications from $50 per application to $150 per application.

Under the User Fees Act, prior to implementing an increase of a user fee, the board is required to table in Parliament a formal proposal outlining, among other things, the reason for the fee increase, as well as performance standards for the service for which the service fee is collected.

The act also requires that, prior to requesting parliamentary approval of the proposed fee increase, the board engage in a consultation process, taking reasonable steps to notify clients of the proposed increase and giving them a reasonable opportunity to comment on or submit a complaint regarding the proposal.

Once a user fee proposal has been tabled in Parliament, it is deemed referred to the appropriate standing committees of the House of Commons and Senate for study. Once referred to the appropriate parliamentary committees, each committee has 20 sitting days after the tabling of the proposal to submit a report to the respective Houses of Parliament containing a recommendation as to the appropriate user fee. Essentially, the committees of each chamber may recommend that the proposed user fee be approved, rejected or reduced.

If a committee in question does not report to Parliament within 20 sitting days after the tabling of the proposal, the committee is deemed to have recommended approval of the proposed user fee.

Following receipt of the committee’s report, the House of Commons or the Senate, as the case may be, may pass a resolution approving, rejecting or amending the recommendation made by the committee.

In the case of this particular “National Parole Board User Fees Proposal,” the proposal was forwarded to the House of Commons Standing Committee on Public Safety and National Security as well as the Standing Senate Committee on Legal and Constitutional Affairs.

The “National Parole Board User Fees Proposal” was tabled in the House of Commons on September 20, 2010. On October 25, 2010, a report recommending that the proposal be adopted was deemed presented to the House of Commons by the Standing Committee on Public Safety and National Security, pursuant to the provisions of the User Fees Act. The House of Commons has, accordingly, already approved the proposed fee increase.

After studying the proposal submitted by the National Parole Board and hearing further testimony from witnesses on this point, the Standing Senate Committee on Legal and Constitutional Affairs likewise recommends that, in accordance with section 5 of the User Fees Act, the Senate approve the proposed user fee increase.

If the Senate passes a resolution approving this proposal, the National Parole Board’s component of the pardon user fee will increase from $35 to $135, as $15 of the current user fee will continue to be allocated to the RCMP, to cover the costs of its role in the pardons application process. This fee increase from $35 to $135 would allow the National Parole Board to cover the direct costs, but not the indirect costs, for processing pardon applications.

The committee is of the view that the fee increase currently proposed is a reasonable one, given the fact that there has been no increase in the fees collected for pardon applications since 1994-95, the number of pardon applications has increased substantially since that time, and the board has been forced to transfer money allocated from its conditional release program to cover the costs in the processing of pardons applications during recent years.

Such an increase also seems reasonable in light of the benefits that are conferred upon individuals who receive pardons, such as timely access to gainful employment and the ability to travel abroad.

It is important to note, however, that the board’s current proposal to increase user fees for pardon applications, from $50 to $150, makes it clear that what the National Parole Board is currently requesting is an interim, or staged, increase. The board explicitly states in its current proposal that it will table another proposal in Parliament in the near future — that is, 2011-12 — seeking an additional increase in user fees that will enable the board to recover fully both the direct and indirect costs of granting pardons under An Act to amend the Criminal Records Act, known as Limiting Pardons for Serious Crimes Act, formerly Bill C-23A.

This act, which came into force in June 2010, introduced amendments to the Criminal Records Act that served to increase the waiting period before individuals are eligible to apply for pardons when they have been convicted of certain offences. It has added new criteria for the National Parole Board to consider when determining whether a pardon should be granted for an indictable offence.

In light of the fact that Parliament may be asked to consider another user fee increase for pardon applications in the near future, the committee has encouraged the National Parole Board, in the observations appended to our report, to make the consultation process it undertakes prior to tabling a proposal for a further fee increase in Parliament as comprehensive as possible.

In particular, the committee has suggested in its observations that the board take steps at that time to ensure that individuals who might be affected directly by an additional user fee increase, such as individuals who have received pardons in the past or who may be eligible to receive them in the future are, to the extent reasonably possible, both informed of the amount of the proposed increase and afforded an opportunity to submit comments or complaints regarding the proposal.

The committee has further indicated that, in engaging in future consultation processes, the board should not regard itself limited or constrained by the consultation process that it engaged in before tabling its current user fee proposal in Parliament.

Honourable senators, in conclusion, and as I have previously stated, the committee recommends that the Senate approve the National Parole Board’s proposed user fee increase.

Hon. Serge Joyal: I would like honourable senators to concur with the report that Senator Wallace has tabled and commented on this afternoon. The only proviso I propose to concurring with the substance of the report is that the Senate was the only chamber that decided to study the issue.

When the other place was first seized with the proposal to increase the parole board fees, they decided to let the delay lapse and automatically, the fee increase was deemed adopted. The committee never called any meetings; never studied the impact of the increase on those who will have to pay the fees in the future; and never asked what consultative mechanism should be followed by the parole board before proposing that Parliament increase the fees. The Senate was the only chamber to take the issue seriously and to hear witnesses. We had four meetings to do so. We studied at length, and I should say at pains, to try to understand what the User Fees Act imposed on the parole board and what kind of monitoring Parliament should make of those fees. That is why there are provisos in the Parole Act to ask Parliament to look into those increases to better protect those who will have to pay the fees.

Honourable senators, I add that point for your own reflection because I think it is part of the mandate of our chamber to exercise due diligence when Parliament recognizes formally a role in the approval of fees. I commend senators on both sides of the committee who took that responsibility seriously and made efficient recommendations for the National Parole Board, especially next year, when they will return with a proposal to cover the full cost. We will want to satisfy ourselves that those who will be touched by that increase will have an opportunity to have their views expressed and taken into account by the National Parole Board because providing that opportunity has important social impacts on the kind of society that Canada pretends to be.

I thank you, honourable senators, and I thank the Honourable Senator Wallace for the report he made today because I think he exercised due diligence in carrying out the role of the Senate.

Hon. George Baker: Honourable senators, to agree with both senators who have spoken on this subject, the Senate committee, not the House of Commons committee, examined this proposal in detail, as we were supposed to do.

There is one thing, however, that bears noting: This proposal will increase the fees for those persons seeking an administrative pardon. When we look at the numbers of people who have criminal records in Canada, it is staggering. About 10 per cent of all Canadians have criminal records. That evidence was given before the committee. That is 10 per cent of all Canadians, or 3.6 million people in Canada today, who have criminal records. That is a little over 10 per cent of the entire population.

There was no breakdown given, and the figures are not available, for the percentage of people with criminal records who are over the age of 16 or 18 years because a one-year-old child could not have a criminal record. As honourable senators know, one must have a mens rea to have a criminal record.

I imagine the figure would be about 14 or 15 per cent of all adult Canadians who have criminal records. As Senator Wallace pointed out, that prevents those Canadians from travelling and going from job to job. It bars them from many things in our society that most of us — all of us here — would take for granted.

Just imagine, 15 per cent of all adult Canadians have a criminal record, so one would have to conclude that if an institution were truly representative of the people of Canada, then 15 per cent of the members of the House of Commons would have criminal records, would they not? Or, 15 per cent of senators would have criminal records. The point is that no one with a criminal record is permitted to be a senator.

In examining bills such as this, we should consider this great number of people, 3.6 million, who have criminal records in Canada and the affect that has on them.

Even more alarming is what is happening in our society in that the number of people with criminal records is increasing. The number of applications for an administrative pardon rose to 30,000 the year before last and then dropped down to 28,000. Just imagine the committee dealing with 30,000 people who apply for an administrative pardon so that their criminal record will be so recognized as not being in existence for certain things.

However, one never completely removes a criminal record, as the Speaker knows, being a professor of law. If one were ever called as a witness before court, one would be examined on the criminal record for which an administrative pardon was received. The only pardon one can receive that wipes out the offence totally is a pardon that we did not examine in the committee because we are not allowed to examine it, and those are the pardons given by cabinet.

However, there was testimony that a substantial number of pardons are given every year wherein an application is made to the National Parole Board for an opinion on pardons given by cabinet, but that has always been the case.

The main point is this: If two years ago, the National Parole Board set a record with 30,000 people applying for pardons, that is less than 1 per cent of the total number of people with criminal records, which is less than 10 per cent. When one looks at the increase in the number of people who have criminal records, one sees an increase of more than 300 per cent. Therefore, the number is steadily rising. At some point, it would be worthwhile to examine what the eventual outcome of this will be. What does one do when the 15 per cent of the adult population that now has a criminal record grows to 30 per cent?

An honourable senator said many of those people should run for politics and try to change the laws. Perhaps we should give consideration to reducing the size of the Criminal Code.

Senator Segal: That’s the new Liberal Party candidate search approach.

Senator Baker: That made the record, by the way, senator.

We did receive testimony recently in the Standing Senate Committee on Legal and Constitutional Affairs about the substantial increases in the number of new laws over the years. In fact, the Criminal Code, which was once just a couple of inches thick, has now doubled in size.

That should give rise to consideration by lawmakers of approving new laws and multiplying the number of counts of unlawfulness against an individual for one delict, as Mr. Speaker would say — one delict being one unlawful act. Twenty years ago, one might have had three charges laid against them for one unlawful act, whereas today one could have five, six or seven charges laid against them for the same delict. Therefore, when looking at someone’s criminal record, one might see 40 or 50 pages for a young man 21 years of age. One must then look at the dates of the commission of the offences where it will be discovered that two or three pages relate to one instance of break and entering with intent to commit an indictable offence.

I wanted to put on the record that at some point, I believe a committee of the Senate should examine this ever-increasing number — today at 15 per cent of all adult Canadians with criminal records — to give consideration to where this is going and what we should perhaps be considering in an effort to try to stop that number from increasing.

In effect, when we pass a law, as we are doing today with the Controlled Drugs and Substances Act, and we give someone a criminal record for passing a drug such as Tylenol 3 — because it contains a substance in Schedule 1 of the Controlled Drugs and Substances Act, namely codeine — or passing an Atasol-30, or passing a marijuana cigarette, and the effect that criminal record has on that individual. The criminal record never goes away. Even if it is a hybrid offence either summarily or indictably, one is still registered under the Criminal Records Act and has a criminal record if convicted. One cannot apply for a pardon until all the conditions have run out on one’s sentence.

For every offence that carries a punishment of over 14 years up to life imprisonment, as the Speaker knows, one will be on probation for x number of years. Under the Criminal Code, there is a condition placed upon the criminal for 10 years wherein they are not allowed to have a firearm in their possession.

When all the probationary instances on one’s sentence after they complete their imprisonment are added up, even if it is conditional and one is serving it at home, it is 10 years beyond that before one is able to even apply for a pardon.

As I said, what is even more alarming is that the number of people with criminal records is steadily increasing and a Senate committee should consider in the future what to recommend that the Government of Canada does about it.