WATCH: Public interest litigation and constitutional litigation is costly and lengthy, and often affects those without the resources to fight, says Ottawa-based criminal lawyer Michael Spratt.
Michael Charron is just one among thousands of convicts affected by a Conservative tough-on-crime move, which one lawyer is hoping the public will help fight.
Retroactive changes to conditions for pardons became law in 2012 and are beginning to take effect, but Ottawa-based criminal lawyer Michael Spratt says the changes are unfair and unconstitutional.
When Charron pleaded guilty as a 24-year-old to selling small amounts of cocaine to an undercover officer three separate times, the law stated he would have to wait five years to apply for a pardon, or what’s now referred to as a record suspension.
That was before Stephen Harper’s Conservatives passed C-10, a massive and sweeping crime bill, that included a clause retroactively changing the wait for a pardon to 10 years for some offences, including Charron’s, and eliminating it for others.
READ MORE: A list of crime measures in Bill C-10
“I didn’t even know until I went back for help to get a pardon,” Charron said of the changes contained in the so-called Safe Streets and Communities Act.
The situation seemed unreal to him; he had served his sentence — four months in jail and one year of probation — and waited five years to apply to have his record expunged, as prescribed by law.
“How could they just change it on us?” he asked.
He says he felt he had done his part. While in the years following his release from jail, Charron, now 30 years old, went for counselling and to school in a computer networking administration program.
He was serious about putting his criminal past behind him and turning over a new leaf.
“Now, the record is just hanging … this isn’t what I signed up to when I pleaded guilty.”
Crowdfunding justice
The fact Charron can’t apply for a pardon, that the rules were changed just months before he would have become eligible under the old regime, is unconstitutional, his lawyer says.
After discussions with Spratt, whose firm had originally defended him in court, the two decided to fight the change. But launching a constitutional challenge against the government is no small feat.
Spratt, a partner at Abergel Goldstein & Partners, decided to turn to the public to help fight the government’s retroactive change to pardons.
WATCH: Harper’s new anti-terrorism law may face constitutional challenge
“The idea to crowdfund the constitutional challenge was born of necessity,” he said in an interview. “Public interest litigation and constitutional litigation is, by definition, costly and lengthy.”
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Exacerbating the issue of cost and time, Spratt said, is the fact that potentially unconstitutional legislation most often affects the people who are least able to afford long and expensive court battles.
A spokesman for Public Safety Minister Steven Blaney wrote in a statement that even though the changes are “tough but reasonable.”
“While a criminal’s jail term may end, in many cases the suffering caused to his or her victims lasts a lifetime,” the spokesman wrote.
Prior to the Conservatives’ first election win, in 2006, the federal government funded the Court Challenges Program, which helped bring constitutional challenges such as this case to court.
READ MORE: Funding runs out for clearing Canada’s pardon application backlog
Cancelling that program and considering who “bad” laws mostly affect, Spratt said, work to “insulate” legislation from challenges. Though these are hurdles, he said they are not impossible to overcome.
The crowdfunding page Spratt set up last month, however, is nowhere near its goal of $20,000 — a sum the lawyer said would “get the ball rolling” but comes nowhere near funding an entire constitutional challenge.
Still, the results are encouraging, he said.
“In addition to the money we’ve raised, we’ve heard from people across the country who have reached out with their stories of how this change has affected them,” Spratt said.
WATCH: The argument against the constitutionality of the retroactive changes to pardons is simple, says Ottawa-based criminal lawyer Michael Spratt.
Most of the convicts caught in the Conservative law that came into effect in 2012 fall into a five-year window that was created by doubling the waiting period for pardon eligibility.
There are others, though. Some people he’s heard from were found guilty of indictable offences in the 1990s, but were forced to wait decades before being able to pay fines because of their financial situations, Spratt said.
The total number of Canadians affected easily reaches into the thousands, he said.
Charron says he’s found that having a criminal record “hanging over” him touches on almost every aspect of his life; the stigma affects personal relationships, he can’t cross borders easily, and getting specific jobs or apartments is often out of the question.
“I’ve been held back a lot,” Charron said while on his way to one of the two part-time jobs he now works, neither of which have anything to do with the computer program he invested in when he returned to school.
Longstanding criticism
The fact Charron is feeling wronged and misled, that his case is being used to challenge the constitutionality of the Conservatives’ 2012 law isn’t a surprise to many experts.
While MPs were studying Bill C-10 at a House of Commons committee, a number of organizations spoke against the provision on pardons, though it got little attention in light of the laundry list of legislative changes contained within the bill.
Michael Jackson, an expert on prison law with the Canadian Bar Association, told MPs a five-year wait was already significant for young people who have demonstrated the will and ability to put their crimes behind them and take their “rightful positions as responsible and accountable members of society.”
READ MORE: Crossing the Canada-U.S. border with a criminal record
There was no evidence, he told the committee, of any problems with the system. In fact, 96 per cent of pardons had never been revoked, he said. Extending pardon eligibility periods would only serve to increase the intensity of a punishment and impede an individual’s reintegration to the community, Jackson said.
Catherine Latimer from the John Howard Society, meanwhile, told the committee members that convicts who have completed their sentence, been crime-free and demonstrated other rehabilitative qualities — as is arguably the case with Charron — risk re-entering a life of crime if the discrimination from their past continues to follow them.
“He has pleaded guilty, he took responsibility, he served his sentence,” Spratt said of his client, Charron. “He repaired relations with his family, went to counselling, went back to school. He has aspirations, he hasn’t had any other criminal charges. He’s done everything we say people should do.”
As for Charron, he says he just wants everything — his record, the changes imposed on him and the fight — to go away. But he knows that won’t happen easily and believes that the fight is worth it for the thousands of others affected by the changes.
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