Retroactive changes to criminal pardons violate charter rights, B.C. judge rules

A British Columbia court has ruled that one of the changes to the criminal pardons system made by the previous Conservative federal government violates offenders' charter rights. 

In 2010, Parliament changed the Criminal Records Act to double the period people convicted of indictable offences have to wait before applying for a criminal record suspension to 10 years from five.

The amendment was also made retroactive to anyone who had already been sentenced under the old law and was awaiting a pardon. The changes came into force in March 2012.

In a decision handed down Wednesday, B.C. Supreme Court Justice Heather MacNaughton ruled that move to make the changes retroactive violated offenders' rights to not have their punishment increased after they've been sentenced.

The person at the centre of the case is 42-year-old Ricky Martin Chu of Vancouver.

He was released from prison in the fall of 2004 after serving time for drug and weapons offences when he was in his 20s. His sentences for the offences expired in May 2009 and he had expected to be able to apply for a record suspension in 2014, until the government changed the law.

Chu, a married father of three who now works as a property developer, had completed a bachelor of science and three years of graduate studies in nanotechnology and synthetic organic chemistry after his release from prison. But according to court documents, Chu abandoned his education because he said he didn't believe he would ever qualify for professional certification or licensing while he waited until 2019 for the opportunity to apply for his criminal record to be suspended.

Chu eventually sought relief from the courts after years of anxiety related to living with a criminal record for longer than expected.

At court, lawyers for the federal government argued the amendments don't increase the severity of an offender's punishment and are simply an administrative result of having been convicted.

Criminal record a punishment: judge

Several experts testified that criminal records do further penalize offenders because they make it harder to obtain housing, jobs, loans, licenses and permits, not to mention participation in community activities that may require a record check.

"A criminal record is 'punishment,'" wrote MacNaughton. "It encompasses all of the traditional attributes of punishment: deprivation of liberty; penalty or unpleasant consequence; and stigmatization or public condemnation."

She concluded the amendments violate two subsections of the Charter of Rights pertaining to offenders not being punished twice for the same offence and having the benefit of the lesser punishment when rules change while they're in the criminal justice system. 

MacNaughton also expressed doubts about the previous government's motivations to change the Criminal Records Act at all, not just the retrospective elements.

"I am not satisfied that the Crown has established a rational connection between the increased ineligibility periods and additional criteria and the enhancement of public safety or support for the sustained rehabilitation of individuals with criminal records," she wrote.

Chu's lawyer, Eric Gottardi, said the ruling means his client may now apply for a record suspension under all the old rules and criteria.

"(Chu) took this one on and he mounted a difficult, expensive constitutional challenge on principle. He wanted to change the law. Those clients, those litigants are rare," Gottardi said.

Law has had 'dramatic impact'

Many legal observers were surprised the current government continued to defend their predecessors' changes to the pardons system — and that it is also fighting a similar case in Ottawa involving Michael Charron, who served four months after pleading guilty to a cocaine trafficking charge.

Charron's lawyer, Michael Spratt, said that while the B.C. ruling is persuasive, it is not automatically binding on the Ontario Superior Court, where his client's case is being heard.

"I would hope given the dramatic impact this Conservative law has had on fully rehabilitated offenders and in light of the government's purported commitment to the Charter of Rights and Freedoms, and given government's claim to be reviewing what they describe as 'punitive' legislation, they will not further burden the courts with additional litigation on this matter," Spratt told CBC News.

A spokesperson for Public Safety Ralph Goodale said the government is reviewing the B.C. Supreme Court decision to determine next steps, including changes to the record suspension process.

Correction : An earlier version of this story incorrectly stated B.C.'s Supreme Court is the province's top court. In fact B.C.'s top court is the Court of Appeal. (Apr 19, 2017 8:55 PM)