Cherie (not her real name) left her abusive partner three years ago and, with her children, moved to a new community for a fresh start. She signed up to volunteer in her son’s kindergarten class and was told she had to complete a vulnerable sector check with the local police department. She had done this a few years earlier when her daughter started school, so it was not a big deal for her to do it again. However, much to her surprise, the check showed up a criminal record. Her children’s school told her she was not welcome to volunteer.
Her crime? Before she left her abusive relationship, during an assault by her partner, she took a swing at him with her purse to try to get him away from her. She was charged with assault with a weapon. She did not have enough money to hire a lawyer and did not qualify for legal aid, so she represented herself at her trial. Her partner lied about the circumstances and, without proper legal representation, Cherie did not have a good defence. She was found guilty and convicted.
Cherie’s story is not unique. In part because of mandatory charging policies in domestic violence cases, women – especially Indigenous and Black women, as well as women from other marginalized communities – too often find themselves facing criminal charges either because they attempted to protect themselves or their kids from their partner’s violence or because their partner has lied to the police about what really happened.
Escaping the past
This can lead to a lifetime of difficulties, ranging from trying to find housing and employment to volunteering with community organizations to travelling across international borders.
It’s not just survivors of intimate partner abuse who face these difficulties as the result of past criminal records. The present system of both criminalization and lack of access to pardons disproportionately affects the lives of racialized, Black and Indigenous peoples as well as those who are homeless, living with mental health issues or struggling with substance use.
While Canada allows people with a criminal record to apply to have their record suspended, it is a complex and inaccessible system. As a result, many people in Cherie’s situation either don’t bother applying or are unsuccessful when they do so.
Anyone applying for a record suspension must have fully completed their sentences, including payment of all fines and fees, before the eligibility waiting period begins, during which time they must be entirely crime-free. That period is either five or 10 years, depending on whether they were convicted of a summary or indictable offence.
Under the present regime, the application for a record suspension costs more than $650, which does not include the cost to obtain the necessary court documents. Not surprisingly, many people cannot afford this. The forms are complicated, meaning many people are not able to complete them properly and have to make multiple attempts to submit forms that are accepted.
Fresh Start Coalition
Fortunately, a campaign to change this is underway, led by the John Howard Society and the Canadian Civil Liberties Association. The Fresh Start Coalition is the face of a national campaign to reform how Canada deals with old criminal records, with the goal of decreasing systemic discrimination, increasing public safety and, ultimately, transforming the lives of marginalized people.
The Coalition seeks to replace the present record suspension/pardon regime with a “spent” records system, in which people’s criminal records would be automatically sealed after a certain amount of time:
“Records would only be automatically sealed after a period of time, and only if a person has not been convicted of any new offences. . . . [P]olice and other justice system actors could retain access to spent records for specific purposes, such as new criminal investigations and evidence based domestic violence risk assessments. The existing vulnerable sector check regime . . . could also remain in place – ensuring that certain spent records could be disclosed when people apply for these sensitive positions.”
When thinking about the impact of a spent records system in cases of intimate partner abuse, it is important to remember that fewer than 25% of women report this abuse to the police. Even when they do, charges are not always laid against the abuser. When they are, those charges can be withdrawn in exchange for the accused entering into a peace bond or result in a guilty plea and a discharge, meaning there is no criminal record. Put simply, the vast majority of intimate partner situations do not result in a criminal record for the abuser.
Whether or not the abuser has been charged, convicted or obtained a records suspension, the new regime would still allow evidence of intimate partner abuse to be raised in family court proceedings, which is where it is most important for many women. Indeed, the definition of family violence that appears in both the Divorce Act and the Children’s Law Reform Act explicitly states that the conduct need not constitute a criminal offence in order for the family court to consider it when making decisions about parenting arrangements.
In other words, implementation of a spent records regime should have no negative impact on the family court’s assessment of whether or not family violence has occurred. It will, however, have a positive impact on women convicted for actions taken to protect themselves and their children, who, with the proposed changes, will be better positioned to find jobs, housing and to go on school field trips with their children.
Seems like a win-win to me.