Class Action Lawsuit Claims Charter Breaches for Criminal Records

Quebeckers are taking on the federal government in a class action lawsuit for unfair application of the Criminal Records Act. The proposed class action alleges Charter violations and seeks damages for Quebec residents who were prevented from applying for a criminal record suspension pursuant to the Criminal Records Act, due to the retroactive effect of amendments made to the Act in 2010 and 2012.

The representative plaintiff in the criminal record class action lawsuit, P.H., allegedly had to wait until 2023 to be eligible for a suspension as per the amendments, for a crime he committed when he was 25. According to P.H., had he been in Ontario or British Columbia, he could have applied for a suspension of his criminal record two years ago. This is because the federal government did not apply the Act equally across Canada’s provinces.

“Thousands of Canadians have been illegally subjected to this unconstitutional regime for almost three years. This case is about the inaction of the Government of Canada and its stubbornness in enforcing a law that it knew and admitted was contrary to fundamental rights,” according to the criminal record class action lawsuit.

The lawyers representing the plaintiff and Class Members argue that the amendments to the Criminal Records Act were applied in an “unfair and discriminatory” manner by the federal government. The crux of the case put forward by the plaintiff is that it is unconstitutional for the criteria for a criminal record suspension to depend on the place of residence of the person applying for a suspension.

Criminal Records Act Amendments

In 2010 and 2012, the federal government restricted the suspension process by extending the waiting period to qualify for a criminal record suspension from three to five years for summary conviction offences – which are less serious – and from five to ten years for indictable offences. According to the criminal record class action, this reform has negatively affected the 3.8 million Canadians who have a criminal record.

The retroactive nature of the amendments for criminal record suspension applications, regardless of the date of the crime or conviction, stirred an uproar among criminal record holders across the country. These amendments were particularly detrimental for P.H., who was sentenced to 30 days in prison for sexual assault committed in June 2009. Before the amendments, he could have applied for a criminal record suspension in January 2018, but the new measures required him to wait until 2023.

In 2017, courts in Ontario and British Columbia deemed the amendments’ retroactive effect unconstitutional. As a result, federal authorities stopped imposing these measures on the residents of these two provinces, but continued to impose them on Quebeckers until a recent Federal Court decision.

In light of the unfair and unconstitutional manner in which the Criminal Records Act has been applied across Canada, P.H. brought the issue before the Federal Court. His goal was for all Canadians to benefit from the same application of the Act as in British Columbia and Ontario, where the amendments do not have a retroactive effect. In March, the Federal Court ruled in his favour.

Lawyers representing the plaintiff make note of the stigma associated with having a criminal record, and its barrier to rehabilitation, finding a job and housing. The Criminal Records Act, continues the application for authorization, offers Canadians the possibility to have their criminal record suspended, thereby limiting others’ access to their criminal record.

Importantly, suspending a criminal record does not expunge it. Rather, a suspension significantly limits access to a suspended criminal record.

The criminal record class action lawsuit seeks $1,000 in damages to Class Members and an order that all criminal record suspension applications be processed according to the criteria in effect at the time the crime was committed.

There are three sub-groups of eligible Class Members:

• All Quebec residents who completed a sentence before April 18, 2007, and those who completed their full sentence after March 19, 2015;
• All Quebec residents who completed their full sentence before April 18, 2012, and those who completed their full sentence after March 19, 2017; and
• All Quebec residents who completed their full sentence before April 18, 2007, and those who completed their full sentence after March 19, 2015.

Did you or someone you know have trouble suspending a criminal record? Share your experiences with us in the comments below!

The plaintiff is represented by Coupal Chauvelot S.A.

The Criminal Record Class Action Lawsuit is P.H. v. Procureur général du Canada Case No. 500-06-001059-209, in the Superior Court of Québec, Canada.

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