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Rights + Justice

Undoing Harper’s ‘Tough on Crime’ Legacy

Independent Sen. Kim Pate calls for updates to mandatory minimums, record suspensions and more.

Michael Harris 23 Dec 2021TheTyee.ca

Michael Harris, a Tyee contributing editor, is a highly awarded journalist. Author of Party of One, the bestselling exposé of the Harper government, his investigations have sparked four commissions of inquiry.

There aren’t many tidings of comfort and joy when you are in prison.

Nor do things improve much after you’ve served your time. Canada’s system for record suspensions — once known as pardons — leads to sentences that in some ways never end — bad news for the 3.8 million Canadians with criminal records. Kim Pate wants to change all that.

For 35 years, Pate has been standing up for the rights of people who society would rather abhor, punish or simply forget. First as a lawyer, then as the long-time executive director of the Canadian Association of Elizabeth Fry Societies, and now as an Independent senator from Ontario.

Who has she helped?

Privacy concerns prevent Pate from citing individual cases, but here are some generic examples of who she has gone to bat for: Indigenous women, who now make up almost 50 per cent of female inmates in the federal prison system, and racialized Canadians, who are grossly overrepresented behind bars. Indigenous people represent just under five per cent of the general population, but more than 30 per cent of the federal inmate population. Black Canadians account for three per cent of the population, but 7.2 per cent of those in federal prison. And then there are the people who get caught in the gears of the justice system because they are poor and have an addiction problem.

“So many of these problems are rooted in poverty,” Pate told The Tyee.

Pate has intervened in countless court cases, listened to inmates’ stories firsthand inside the prisons that hold them and often hired people at the Elizabeth Fry Society when they are released. She’s even co-signed housing applications for people in dire straits.

Now Pate is in a fight with the ghost of Stephen Harper. As prime minister, Harper’s tough on crime agenda made life miserable for anyone with a criminal record. And made it very difficult for a progressive like Pate to make the case that compassion, early intervention and treatment was a better way to deal with offenders than locking them up.

The Harper government’s lurch to the right at both the national Parole Board and in Canada’s pardon system came after the controversial case of Graham James.

The former junior hockey coach was sentenced to three and a half years for sexually assaulting two of his teenaged players. James was pardoned in 2007; when the pardon was reported on three years later, after a new accuser came forward, the pardon ignited a national uproar. Theoren Fleury, one of James’s victims, issued a statement saying he was "shocked and mystified" that James had been pardoned.

In the public’s response, Pate saw a double standard.

“James received a pardon, and people flipped. This is about the inherent biases of who is deserving of caring about, and who is not,” Pate said. “If it’s a high-profile man, like a hockey player, or hockey coach, the place goes up. We still don’t treat violence against women, especially Indigenous women, very seriously.”

Harper reacted to the Graham James case by introducing mandatory minimum sentences and tearing up the pardon system. The fee for applying for a pardon, for example, went from $50 to $631. He also doubled the waiting period before an ex-convict could apply for a pardon, extending it to 10 years.

Why was that so crushing?

First, coming up with the cash to apply was often onerous for people leaving prison and trying to make it back into society. The effect of Harper’s hike in the application cost was to dramatically reduce the number of former offenders applying.

That exacerbated the far graver problem of the ongoing stigma of having a criminal record when an ex-convict looked for work, tried to rent an apartment, get a loan or do volunteer work. Many employers do criminal records checks before hiring, and very few will put someone on the payroll who has been in prison.

To Pate and other like-minded reformers, this is nothing short of continuing the punishment after the offender has completed their sentence. And, she says, it makes society less, not more, safe.

Part of Pate’s solution is a system of automatic pardons, now known as record suspensions, for former offenders that comes without a crushing fee or the onerous application process. Her measures are contained in S-212, a bill she recently introduced and spoke on in the Senate.

Pate is now waiting for other senators to speak to the bill before it goes to committee and then, hopefully, to the House of Commons. The senator already has a sponsor on the government side in the person of Liberal MP Judy Sgro.

“The challenge is that although people privately say they support the measures I have introduced, no politician wants to be seen as soft on crime,” Pate says. “But if you leave these people without resources, they will remain caught in a cycle of criminalization and trauma.”

“Very few people think longer, more punitive sentences will actually solve anything,” she adds.

Under S-212, most former offenders would qualify for an automatic record suspension. For those convicted of a summary offence — the least serious kind of offence, which generally carries a sentence of six months or less — the waiting period would be three years after serving their time. For those convicted of an indictable offence — a more serious offence — the waiting period would be five years.

But the big difference is that if S-212 were to become law, there would no application process or fee, and almost all offenders would be automatically approved for record suspensions. The exceptions would be for those convicted of sexual assault and those serving life sentences.

Pate would prefer it if the government simply took over her bill, but so far there has been no official sign it might do that.

“Let’s face it, ministers are not going to say, ‘OK, Kim, we’ll do it.’ But many inside the [public safety] department are encouraging me to press on,” Pate says.

And press on she has.

Pate has introduced a series of bills in the Senate that would change the face of the criminal justice system in Canada. From automatic record suspensions to ending mandatory minimums to establishing a guaranteed livable income, this senator is looking for transformative rather than incremental change.

At the heart of her approach is the belief that the current system doesn’t invest in people who have been left behind. Instead, it puts roadblocks in their path to reintegration.

“The current system actually challenges people to face impossible situations and overcome them. It just keeps heaping on the hurdles to see if you can get through. That makes people hopeless,” she says.

For Pate, the problem is not crime and punishment. The problem is that the system fails poor Canadians, which often leads indirectly to jail and a cycle of reoffending.

“Poverty costs us in emergency health care, policing and incarceration,” Pate says. “Fighting it is the way to have far fewer people in prison.”

To do this, Pate says, the government needs to expand beyond the current scope of supports for workers and offer a richer array of services to everyone who finds themselves in need.

S-212 is actually a good fit for the Trudeau government, which has already made some progress on reforming how criminal records are handled. Back in 2018, the prime minister personally apologized to the LGBTQ2S community when he announced Bill C-66. That legislation expunged the criminal records of anyone convicted of a “gay crime.”

The Liberals also passed Bill C-93 in 2019. It did away with the $644.88 record suspension fee for people convicted of simple possession of marijuana. At the same time, the government waived the 10-year wait before a record suspension could be made.

Most recently, the government announced it would drop the fee to apply for criminal pardons from nearly $658 to the pre-Harper rate of $50, effective next year.

When C-93 was passed, then-public safety minister Ralph Goodale noted that it was only a small step, and many more reforms to the Criminal Records Act were needed. Kim Pate is offering the government a chance to complete unfinished business.

But it is far from certain that the government will take her up on S-212. This is the third time Pate has put forward this legislation, first as Bill S-214, then a reintroduced version, S-208, and now S-212. Given the political realities, she knows it will be an uphill battle.

But she thinks the legislation may pass this time for an unusual reason: COVID-19.

“The pandemic has demonstrated to politicians and the general public that we sometimes have to act collectively. We need to remember that if some are not okay, then all are in some way impacted,” she says.

And if it doesn’t pass?

“If it doesn’t pass this round, there will be another one. I will be back. I am determined.”  [Tyee]

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