Time for automatic pardons for single summary offences | Paul Doroshenko

By Paul Doroshenko

Law360 Canada (February 3, 2021, 2:11 PM EST) --
Paul Doroshenko
For more than 10 years now we have had the Immediate Roadside Prohibition (IRP) scheme in British Columbia, and the sky has not fallen. What has fallen, the B.C. government tells us, is the rate of deaths due to impaired driving in B.C.

While it is arguable that this was not due to the effect of the legislation itself, but instead an aging population, safer cars and a general shift in societal attitudes, one thing remains clear: first-time impaired drivers do not seem to need the stigma of a criminal record to deter them in the future. The decriminalization of impaired driving in British Columbia has become a model for other provinces. Manitoba, Saskatchewan, and Alberta have all enacted similar schemes and hope to see similar outcomes.

Immediate Roadside Prohibitions are issued in cases where the alleged offender would otherwise be taken back to a police station, compelled to blow into an evidentiary breath tester and face a conviction for impaired driving. Instead, the driver is issued a roadside prohibition with consequences ostensibly designed for rehabilitation. The alleged offender never faces the prospect of a criminal record.

Police, for their part, laud the system. Not only does it purportedly decrease the rate of fatal accidents, but it is also quick, easy and complete in minutes instead of many hours. No longer do police need to leave the road for hours to conduct the investigation, write their reports and ultimately appear in court.

I have been one of the most critical voices about the shortcomings of this legislation in British Columbia. I have observed the de-skilling of the police, which is manifest when it comes time to investigate serious cases involving fatalities or severe injury. Many police officers are no longer equipped to conduct a proper impaired driving investigation because, through the administrative system, violations of Charter rights become academic, irrelevant and are often dismissed with the swoop of an adjudicator’s pen.

Nevertheless, the Immediate Roadside Prohibition scheme has revealed something very important: it is not necessary to burden people with a criminal record to accomplish the goals of denunciation and deterrence. Simply put, in B.C for over 10 years we have not given criminal records to the vast majority of impaired drivers and that has been just fine. Society continues to function. And all of those people who were deterred without having a criminal record were able to go on to lead constructive lives without the burden of a record. 

Having practised criminal law for over 20 years, I have read decision after decision, and heard judges give reasons countless times in cases involving the question of whether a discharge is appropriate, or whether something more, such as a suspended sentence or a fine, should be imposed instead. I have heard dozens of Crowns pound the table and emphasize the need to impose a criminal record for the protection of the public.

The problem is the unintended consequences of a criminal record. Aside from the broad public humiliation, is the ever-present worry that a potential employer will stumble upon the record or that a post-secondary school will reject you due to your criminal past, or that you are barred from a profession due to your one mistake.

I have seen it. I have had people in my office who have lived less of a life in fear that their criminal record from decades past will surface. The stigma of a record is often life-destroying. One mistake on one bad day becomes a life sentence. 

As a lawyer you may say to yourself that a criminal record is not an automatic bar to employment or even to a profession, including the legal profession. The problem is that this is not how criminal records are understood by the general public or indeed, by people who have a record. Most people are of the view that all of their life options are closed or very limited when they get a record.

You may point out that pardons are available. This implies that the particular person with their particular motivations, frailties and busy life will have the time, energy and devotion to navigate the pardon system. Most people are deterred from seeking a pardon by the complex rules and for fear that they will be rejected in any event. 

There are many thousands of Canadians who have received a conviction for one offence on what was very likely their worst day. Their lives were forever changed and they have been held back by it ever since.

And it is more than a personal tragedy. It is a societal and economic tragedy as well. People with this stigma are much less likely to live up to their potential. They are less likely to study and go into the medical field, for example. In many cases the burden of the record means leaner earnings, less contributed to the society and less taxes paid. Should people really be condemned to a lesser life for one conviction?

Perhaps unexpectedly, the Immediate Roadside Prohibition scheme, now used in several provinces, shows that there is no societal good in giving criminal records to first-time impaired drivers.

This is not insignificant. Indeed, it appears to run contrary to Parliament’s intent. When Bill C-46 came into effect in December 2018, the only avenue to avoid a criminal record in impaired driving cases was removed. The curative discharge provisions were reformulated into something that would still result in the purported stigma of a record, while maintaining all of the so-called curative elements. Parliament was clearly signalling that a criminal record is a mandatory condition of an impaired driving conviction.

But if so much success has come from the elimination of the criminal record through the imposition of a provincial system for rehabilitation and penalty without the corresponding life-altering record, maybe the life-altering record really is not necessary to change behaviour and divert people from a pathway of criminal behaviour.

The Immediate Roadside Prohibition and the government’s so-called success with it should be a sign to government that forgiveness and second chances are more effective at changing behaviour than the imposition of harsh life-long consequences.

Recognizing this and the life-altering impact of a criminal record, I would argue that it is time to automatically pardon people who were convicted of summary criminal matters that did not involve violence, sexual offences, or offences against the administration of justice. Provided the person has not received another criminal conviction, there should be an automatic pardon. An automatic pardon after five years would act in almost the same way the provincial legalization operates. After all, your driver’s abstract no longer shows your IRP after five years.

The sky has not fallen in British Columbia, even though offences for which a person streamed through the criminal process would receive a mandatory criminal record. By all accounts, everything is better with just a minor administrative sanction. People who receive Immediate Roadside Prohibitions can effectively take their lives back upon completion of their consequences and after the passage of five years.

The same courtesy should be extended to other people facing offences generally considered less serious.

A pardon for summary offences should be automatic after five years.

Paul Doroshenko, Q.C. is a Vancouver lawyer who has been defending impaired driving cases for over 20 years. His Twitter handle is @pauldoroshenko.

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