This is The Every Lawyer presented by the Canadian Bar Association

Julia Tétrault-Provencher: Hi, I'm Julia Tétrault-Provencher, and welcome to The Every Lawyer. I am sure you've heard the phrase ‘tell your client the whole story,’ or something like it. Increasingly these days for lawyers, the ‘whole’ in telling the ‘whole story’ can feel like a rabbit hole, especially when it comes to criminal law. The ubiquity of criminal record checks and precarious residency requirements for new Canadians are among some of the key areas where the punishment doesn't stop when the sentence has been served. There are also consequences for Family Court, employment, and even housing.

Welcome the newly updated CBA toolkit on Collateral Consequences of Criminal Convictions to the rescue, by and for lawyers, but really for everyone involved in the criminal justice system, including clients – well, especially clients. The collateral consequences toolkit serves as a checklist and starting point to understand the increasingly complex range of fallout surrounding a criminal conviction.

Please welcome with me from the CBA Criminal Justice Section Tony Paisana and Tyler Schnare. Tyler is a first-year criminal defence attorney at Cremer Barristers in Toronto where he manages a high volume of files including complex trial-bound matters and files with charter issues. It is therefore amazing that he also managed to find time to help with the recent update of the CBA Collateral Consequences toolkit. His focus was primarily on immigration.

Tony is a long-time CBA member and a former chair of the Criminal Justice Section. In addition to working on the update and the original Collateral Consequences toolkit in 2017, Tony has testified before Parliament on behalf of the CBA on criminal law policy and legislation, and has argued cases at all levels of court including the Supreme Court of Canada. He is a partner at Peck and Company in Vancouver where a demonstration was underway outside his office window on the day we recorded this conversation, so we can barely hear it, but it's okay.

Welcome, Tony and Tyler. So, what prompted the original toolkit?

Tyler Schnare: Tony, I'll let you take that. I wasn't in the profession when it was started, so perhaps you have –

Tony Paisana: The grey hair in my beard gives me a bit of authority to give a history.

Julia: Exactly.

Tony: So this was the brainchild of, as I understand it, [Keaton Scharmer? 00:03:29], who was a very important CBA employee who was in charge of the Criminal Section and identified this need to identify collateral consequences. And I think what really gave rise to that is the ever-increasing complexity of collateral consequences. That as criminal records and related checks became more relevant and prevalent the CBA identified a need to collate all of that information in one place so that practitioners could know, when dealing with a conviction, what are the different kinds of fallouts that might happen as a result of one of these cases going to a sentencing or a conviction. So it was a sort of response to this ever-increasing use of criminal records and the complexity of the fallout of criminal convictions.

Julia: So you’d say it's more addressed to practitioners, mainly?

Tony: Well, I would say it's addressed to practitioners, the judiciary, but there is a component of public awareness and information sharing that's the spirit behind this. The public interact with the criminal justice system and they believe that the sentence that a person receives is the start and the end of the penalty. And I think it's important that the public understand that that isn't the case, that these criminal convictions can last a long time in a person’s life, well beyond the sentence that they get. And having that public awareness, I think, increases confidence in the sentencing regime that you see play out every day in court.

Julia: Yes. I really liked it, I must say. I don't practice criminal law but I still find it very interesting, so I do believe it's for a broader discussion as well. And now I understand that there has been an update, and what is new since – so the first time it was released in 2017, so now it's five years – yes, five, six years from now – what is new? Is there any difference? Did you add anything to this new version?

Tyler: I think that there were a few new things. Tony had said there are so many complexities, and so in the first version, especially when we're having something that's very volunteer-driven, you didn't get everything in the first place. However, I think that this new version is just more detailed and more comprehensive. One new thing that I know I added was with respect to the serious criminality provision in the Immigration and Refugee Protection Act. Namely, there was a Supreme Court case that ruled that conditional sentences of longer than six months do not satisfy this provision.

And so what that means is that if you get a conditional sentence or a house arrest type sentence, that's not going to be the basis to deport a permanent resident if they get a sentence like that, for longer than six months. Which was, I think, a very important question and one that defence lawyers can now take in terms of trying to find resolutions with Crown attorneys that are going to respect their clients’ immigration status as well as find the perfect balance between punishment and being unduly harsh.

Julia: So you would say that was one of the main changes?

Tyler: At least from the immigration perspective. I did some work on the immigration part of this as well as a little bit of the record suspension part.

Julia: And anything that hasn’t changed that you wished you would have changed that when you were doing the update?

Tony: From my perspective I wanted to include additional information about specific professions. So one of the things I've realised over the years, as I've practised longer, I'm dealing more with people who are accused while working or hoping to work in professional settings, and so what do the securities regulators say about a conviction? What about if you're wanting to be a lawyer, what are the requirements for the Law Society or the College of Physicians and Surgeons? So some specific updates about particular professions.

I think maybe the next logical step for an update is to highlight those specific professions that have clear legislative or policy-based restrictions on criminal convictions. The challenge for that is that that is very varied from province to province. They all generally seem to have something to say about those things, but the precise [wording is? 00:08:01] where specific restrictions can differ from place to place. So it makes it challenging to create a universal document such as that, but I do think it’s an area that might prove to be useful for practitioners.

Julia: Thanks. And so after that I think we're going to go a bit more into a more geeky conversation. We'll geek out a little bit about the toolkit, but we wanted the toolkit, it was intended to stimulate a dialogue between [real event? 00:08:28] officials and agencies, and do you think it worked? Do you think this is something you've managed to do with that? Have you reached out to various officials to create it, but also now that it's there, have you received any email or a welcoming email saying, “Thank you for this update, or this toolkit”, or have you shared it with various – I think you talked about immigration here – have you shared it with immigration officials or people like that?

Tyler: I've shared it with colleagues and junior associates and I think that we've all found it very useful as a starting point to understand how to work with our clients. In terms of inter-agency collaboration, I think that it is still very siloed. The toolkit perhaps needs to become implemented in a more standard way. One idea might be to have legal aid implement it, or a training around it as mandatory for criminal practitioners and perhaps towards their CPD hours or something like that.

I think it should also be included in the Crown Prosecution Manual or the Crown’s [unintelligible 00:09:43], because in my brief experience I've encountered a Crown that's had no idea about any of the immigration consequences. Which is, I think, very concerning, particularly because they're the ones who create the first plea position, and I think that in making that plea position they should really be informed or aware of the potential consequences and take that to take a measured position.

Tony: The only thing I'd add is that's why we're here today. We're doing a bit of that work right now. It's early days for this toolkit, we're very much trying to get the word out through different channels, and I am getting that feedback. I've randomly had a Crown counsel come up and say, “I saw that article about the toolkit [unintelligible 00:10:28].” So it is seeming to get out to that group of people that we're intending for it to get out to, and it is a bit of a slow burn. But these sorts of activities are important to getting this really helpful practice tip, practice kind of document out to people because it is a great short cut for people.

Julia: Yeah, very much. And I think you're right, that's exactly why we're here today, is also to spread it out and to talk about it. But I think, Tyler, even if you say your brief experience, I feel like you're giving very good ideas here that we can pick up on for later. So talking about the toolkit, because I do have many questions and I'm sorry if some of them might sound very junior, it's just because this is something when I was reading it, I found very interesting. First because the idea is to talk about the collateral consequences of criminal convictions, and from what I understood when I was reading the appendix, is that some potential consequences, they vary between provinces because, of course, in Canada everything all depends on the province and the territory. So do you have some specific consequences by provinces or territories?

And I don't know if you have any, if you've made up your mind about that, but if you know what are any major differences that are very strikingly different from some province and territory that you've seen? Like this one is really the only province that is doing that, or the only territory where this could happen, or do you also have any examples of good practice that you're on the opposite? You're like, well, this province is doing that, it's very nice and I think this is something we should push forward for the other provinces, you know, share good practices?

Tony: Well, I could pick up on that last point. So one of the things that the toolkit also addresses is the consequences of what we call non-conviction information. So interactions with the police that got resolved in a criminal record but was often some sort of database entry that could live long past that interaction. The CBA has been working on this, and I've personally been involved in this work for the last seven years, of trying to get the rest of the provinces to adopt something similar to what's going on in Ontario.

So in Ontario they've passed a piece of legislation that specifically restricts the dissemination of non-conviction information in police record shares, and it's a very progressive, very successful Bill that bi-partisan support, police support and so on. And through the Uniform Law Conference of Canada, the CBA put forward a uniform Act for other provinces to adopt modelled on the Ontario legislation. And it very much is a stand-alone leader in this area, Ontario, that the CBA is on record with policy suggesting that the rest of the country should catch up on.

Julia: Nice. Thanks, that's exactly what I was looking for. And would you say maybe in dire need of improvement or necessary, I think, if you see something that you're like, “Yeah, I think all the provinces, all the territories, they are ...” But I think the example you just gave, Tony, is very, quite speaks for itself.

Tony: Yeah, it's a big one. So if you read the reports that were produced at the Uniform Law Conference of Canada, they'll all be online, there is a wide difference between how non-conviction and conviction is treated in Alberta versus Ontario versus other provinces, and even within provinces. So you could get a different criminal record check come back depending on what city you are within the same province. Which is kind of wild when you think about it. So it's definitely an area in need of uniform.

Julia: I think this toolkit is a good starting point because at least it gives us a bigger picture of where it's different. And I think if you don't have that you might get lost in it as practitioners because also you'll probably be working in your own province so you don't necessarily see what's happening elsewhere. So that's very useful for that. And also since I know this podcast is being listened to mainly by practitioners but also by law students and by, I hope, not only the people from the legal profession but lots of practitioners are listening to it, so we wanted to have a brief section a bit more about conversation, discussions for practitioners. And the first question that I have for you was which – and it can be maybe more in the province you're working in, or even if it's since you did the toolkit maybe you have a broader picture as well – but which are the most serious consequences that you've heard of, and which one you know practitioners are not thinking about, that when you tell them that they're like, “Oh, I really did not think of it as a consequence that could happen from that.”

Tyler: I mean, not to harp on the section that I did, but –

Julia: No, yeah, of course, let's go. [Laughs]

Tyler: – I think immigration is a really, really big, big one. I had a client this year that I had to really work hard. I put together a 200-page sentencing, it just hammered down that this person cannot get a sentence longer than six months because they will be deported to a country where they were targeted by neo-Nazis. And immigration can have such profound effects on one’s life. It can affect the family unit because if one part of the family stays behind and then this individual goes back, they have that, they could be deported back to danger. It really is something that needs to be at the front of all criminal practitioners’ minds.

In terms of under, or things that are not thought about, I think that the family law implications are probably less thought about. Any sort of conviction, any sort of really involvement can lead to family law implications. And when we're talking about cases where domestic violence is involved, I think particularly do not communicate or do not attend orders that happen as a result of a conviction, can be – I think a lot of people say that as an after-thought – but if someone has a child with somebody or that was their only home or only residence, if you don't think about that you've effectively made them homeless or not have any contact with their child, notwithstanding the issues they may have had with the complainant, and it's something that needs to be thought about.

Tony: Yeah, so I echo all of Tyler’s concerns about the big-ticket items. You know, immigration work, volunteer, are the ones that usually come up, but there are a host of others that I myself was quite surprised about. You know, your eligibility to be a foster parent can be affected, your participation in securities markets, your admission into certain educational opportunities or your ability to travel to different countries, in particular the United States. These are all areas of day-to-day life that will be significantly affected by the existence of a criminal record and conviction and probation that don't jump off the page like work and volunteer opportunities do, but then they'll ask you significant embarrassing questions.

Julia: So, again, because for me it is the kind of thing that practitioners will not necessarily know at first. Before this toolkit, before it existed in 2017, how were you aware of these things? Is it in the law, is it you can find it in a different piece of legal legislation, or it's just practice that has shown that these consequences were arising?

Tony: Well, in the before time, if I can call it that –

Julia: Yes.

Tyler: [Laughs]

Julia: The before. [Laughs]

Tony: – the decision for a defendant called Pham, P-H-A-M, which recognised, I think for the first time in a very explicit way by the Supreme Court Canada, collateral consequences that [unintelligible 00:18:03] was a recognised factor that could be incorporated in someone’s sentencing. People were talking about things that I'll call collateral consequences before that, that really crystallised with that judgement and people started thinking about it a lot more. And I think it was a mixture of things that your client told you about that you just had no idea would be a consequence. You know, they told you about their professional setting or what have you, or others say it was experience. You know, you've dealt with this kind of professional issue before and you had learned from that previous occasion, but there was no real checklist or place you could go to check yourself, as it were, to see if you were dealing with someone that might suffer a collateral consequence.

Tyler: I'll be a little bit shameless and admit to using Criminal Law Notebook as my starting point to finding most things out. As someone with relatively brief experience and just maybe someone who hasn't read all of the case law in the world, that usually is a good starting point to then branch out. But it's not, I think, readily apparent to everybody in perhaps the way it should be.

Julia: And maybe sometimes do you think that some practitioners just won't think about them because they're just doing their job and they kind of feel like it requires them to go beyond their duty or their legal obligation to service their client? Or have you received some backlash or some people saying, “Do we really need to think about collateral consequences?” Do you have some people who are, I don't want to say against, but just not seeing the importance of the toolkit, or what do you tell those people? Or if they say “no, we do our best, we cannot know everything.” As you just said, Tyler, we don't know all the jurisprudence, we don't know all the consequences, so where does the checklist end because it will always have new, factor new various stories, various situations, various consequences. Especially in immigration law, I'm thinking, it's always moving around, so have you received those kind of thoughts?

Tyler: I haven't received those types of thoughts, but I would just say that it isn't outside of the scope. I think it's squarely within the scope, particularly the situation where you're advising somebody to plead guilty, I think you're doing a disservice to your clients if you don't really advise them of the consequences that they could face. And part of your job when it comes to pleading guilty or sentencing or any of that is to get as much background information from your client as possible and to think about those issues and to inform them of that. That's part of the plea inquiry that we're all required to do when they plead guilty. We don't necessarily have to describe every consequence on the record in court, but that's sort of the contemplation, that the client or the accused person understands what's going to happen if they do this.

Tony: And practitioners should be aware that this is a part of their professional obligation. Now courts have said that it can be a basis of [unfair decisions? 00:21:00], it can also be to notify someone of the collateral consequences, it can be a basis for striking a guilty plea. In fact courts have said not properly advising an accused of the collateral consequences, if significant enough, is a miscarriage of justice. So there are serious consequences for not advising the consequences. And so you have to be alert and alive to those issues. When you're not sure, you should be consulting secondary sources or referring clients to independent legal advice because it is something that is part of a valid plea, whether or not you are aware of all the consequences that reasonably arise from a conviction.

Julia: I think I'll say if you're not sure, you need to do it as part of your duty. You must not answer whatever you think is a good answer just to give an answer.

Tony: Yes. In my experience I certainly over the years have seen people, whether it's commentary in the middle of a sentencing from the Crown or the judiciary saying, “Where does it end, what qualifies as a collateral consequence?” And what develops in Pham is a burgeoning area of case law where all sorts of things would be considered collateral consequences, right? Lost relationships, lost employment, immigration consequences, volunteer opportunities. As long as you can show that it arises out of the charged and/or sentenced, or were convicted, and if it will have a meaningful deterring effect on a person, it should be relevant. And we did have these things beforehand, like there was case law for the 90s and 2000s about media, right? So if you were the subject of negative media attention it was considered a collateral consequence, and that was an easy one that people could wrap their minds around, and we're just sort of with the cases of Pham, coming to identify more and more of these things that can be the fallout of a criminal conviction or in sentencing.

Julia: Can you just explain a bit more the media thing? I think it's an interesting example.

Tony: So there is, for example, there's a case called Bremner from our Court of Appeal in British Columbia from 2000, that recognised that when people suffer from negative media attention with respect to their charge or offending, it can have a deterring effect on that person and on the public generally. So, for example, if you are outed as a sex offender or a fraudster or a murderer or a manslaughterer into the media, that is something that will exist forever more. And that's even more so today than ever before because of the advent of the internet. It is a deterrent moving forward, it's like an online criminal record, if I can put it that way, that will follow you forever. Every job application, any personal relationship where someone feels the need to Google you, it will always be there, and a real deterring – and for some people it's a far more deterring impact than an actual criminal record, which is not usually publicly accessible.

Julia: And that's a very good example, I think, again, it's a lot thinking outside of the box. Also there are some people – I think the toolkit touches on that as well – some people that you believe deserve more attention. So we did mention people involved in the immigration processes, our family law, but also Indigenous people or persons with disabilities or any other people we might not be particularly thinking as deserving more attention, but who do. Why and what do you think practitioners can do in addition to having the toolkit very close to their [heart? 00:24:28]?

Tony: What's apparent now – it's been well recognised and now the Supreme Court of Canada is starting to make comments to this affair – is that there are communities like Indigenous people, Black Canadians, others who are disproportionately affected by interactions with the police and justice system, and what that means from a very practical perspective is that they're far more exposed to these collateral consequences than others. And so to the extent that that disproportionality affects them, you can expect that the collateral consequences will also disproportionately affect them.

And what I'm thinking in particular of is Indigenous people who have a very negative history with the Ministry of Child and Family Development or similar registries across the country, others who have longer or a disproportionate history of being carded by police. So there has been a great deal of recent media attention on the practice in Ontario of Black Canadians being disproportionately – some 300 percent more – carded by police, so that's carried a lot of non-conviction information disproportionately for them. So to the extent you're dealing with people who are from marginalised over-represented communities, people with mental health and addiction issues, those are people that are generally by and large going be having bigger interactions and more frequent interactions with the police, which give rise to these collateral consequences.

Julia: Thank you. And I have other questions for you. I'm sorry, I keep having many, many questions, but thank you, I feel like you are very well-versed in that domain, so you can answer all of them. But there's a section in the report, if I can quote a report, that talks about the difference that they can make when it comes to prison consideration. Can you elaborate a bit on that? Why is that so and is it the same for everybody?

Tyler: Not to harp back yet again on immigration, but –

Julia: [Laughs] Please do, honestly, it's super interesting.

Tyler: – back to that sort of six-month threshold in terms of deporting permanent residents. If you can get the Crown really, what's the difference between six months and six months less a day in terms of – you’re really, you're showing the deterrents, you're showing denunciation, you're achieving all of these goals but you're not taking someone away from their family and the life that they've built. That one day can be the entire difference between a deportation order and just a regular sentence.

Julia: Wow. I mean, that's something you have to know.

Tony: When I think of prison situations there are other things too that – again, just [for? 00:26:50] the listeners – there are other things that can be collateral consequences related to how a person does their time. So one of them is where are they going to do their time? So it comes up when you're dealing with someone who’s away from their home community, that particularly is an issue that can arise from Indigenous communities. And if they are very far away from their Indigenous community or their community generally, it can make their time harder to do because you're going to get less visits. It's just going to be more difficult, you're in a foreign place that you're not familiar with. And it's been recognised that doing time further away from family where they can't come to visit with you makes your time harder, and then it should be considered as part of the calculus in determining someone’s sentence.

Tyler: And if could just add to that, yeah, I actually had a client, unfortunately, where this was a consideration. This individual had been serving pre-sentence time in a provincial facility in Brampton where his family lives and his children live, but the nearest penitentiary is going to be in Kingston. And so it's already quite difficult to visit the provincial jails with lockdowns and things like that, but there isn't exactly a whole lot of penitentiaries around and they're not necessarily spread at the most convenient places. So what turned from a 20-minute drive to potentially visit someone is now three hours if the location isn't locked down, if the location is able to accommodate visitors, etc.

Some people, strangers that might actually, may want to serve in a penitentiary over a provincial facility if they're at that fold, just because the availability of programming is generally greater at a penitentiary than it is at a provincial facility. And so a lot of people are only able to access drug therapy or drug rehabilitation programs for the first time when they encounter the criminal justice system, which I think there's a lot to be said about that, but the penitentiary tends to have more than a provincial facility does.

Julia: Because you say there is more facility programming, so to have access to programs?

Tyler: Yeah.

Julia: Okay. Why? I'm going a bit outside of the scope here, but do you know the reason why it's easier?

Tony: Well, penitentiaries are run by the federal government and the prisons where you spend two years or less, they are all provincial, and so a prison, mostly the funding is a historical feature of the Correctional Service of Canada being responsible for that stuff.

Julia: Okay, thanks. Also what I liked about it and I think I also put in the question that I have for you, is because I feel like this toolkit, or report or tool, however you want to call this, is also a bit of a myth-debunker for many people. And also that's why I think it goes back to what you were saying that it's not only for practitioners, it's for everybody who has an interest in that, because I think it's useful information for everyone, actually. And I wanted to know if there were some myths, because now I did put some that I found very interesting. So after an acquittal, for instance, it says that after an acquittal or if charges are withdrawn, the person’s criminal record has no trace of it. Is that true, or no?

Tony: So this goes back to the conversation you were having about non- conviction information. So the very fact that you're arrested exists in various databases. For example, in British Columbia we have a police database called TIME, which is an acronym, and it's estimated that about 85 percent of British Columbians have a file in crime because it records everything. Even if you call 911 and you're a witness, you're an accused, you get pulled over, everything gets recorded. So the fact that you've been arrested and charged and went to trial on something will exist in those records. And so I once did a Freedom of Information request to figure out how long that can exist for, and there is a table that is used by the Vancouver Police Department, and there's another used by the RCMP, and for a charge of sex assault, for example, that will remain in the police databases for 20 years regardless of the outcome.

So this gives you a sense of how long your interaction with the criminal justice system will exist in the database, and that's assuming that at the 20-year mark someone actually remembers to take it out. Which in and of itself is an issue that a lot of people get caught up in, that is when something should be removed and it has not yet happened. I once had a client who I got his conviction overturned on appeal, and his criminal record for the next two years still showed that he was convicted, just because the record-keeping did not keep pace with the result, which I thought was pretty astonishing.

Julia: Oh, wow. So that's something that goes – even just someone updating it, if you don't have that then it might just stay. So another myth is that someone in custody is not allowed to vote. Is that a myth or is that true?

Tony: It is a myth, but what isn't a myth is they can’t serve jury duty if you have a criminal conviction.

Julia: Ah-ha, like ever?

Tony: Ever, yeah. If you have a criminal conviction, at least in British Columbia, you cannot serve on a jury if you have a criminal conviction.

Julia: Okay. And last one – I do like these true or false things – when I turn 18 my record will be completely cleaned. So that maybe goes back to what you were saying, though?

Tony: Well, there are other indications. Tyler did the youth section and so he'll probably be in a good position to fill you in on it.

Tyler: Yeah. So it's not necessarily completely cleaned, and there is a relevant access period in which those things can be seen. And so if an individual actually commits an adult offence while that access period is open, that erases that effect of wiping it clean, and so that can actually form part of your regular record. And so it's not just a get-off-free card once you turn 18, really pay attention to those access periods. And like other records, even if it's non-conviction, withdrawal, anything like that, defence lawyers tend to be able to see all of those things in disclosure and so one has to wonder – plea positions and positions taken by Crowns are not supposed to offer those things – but you've got to wonder. They can see those things, so perhaps they take those into account too.

Tony: I lost you a little bit there in the connection so I don't know if you covered this, but when you have a youth offence, if you commit another offence after you turn 18, within a certain number of years it can bring back to life your youth convictions and it can bring [unintelligible 00:33:30] of your adult criminal record if you don't go enough number of years without any problems.

Julia: So I think just hearing you, it shows us the importance of asking the person you're working with, your client or the accused person, all the questions, no matter what, to make sure you fully understand the situation. And I also have a question, and you'll let me know if you have the answer for that, so it's about bail in Canada. So you probably know already that in May 2023, so quite recently, the Canadian government introduced Bill C-48, proposing changes to the Criminal Code’s bail provisions. And according to the government’s website – that's where I found it – those changes were proposed to promote community safety and reinforce public confidence in the administration of justice. I don't know if you've followed that a little bit, and if so, well, I just wanted to know if you could explain to our listeners and to me, why is there a need for amendments here when they are talking about bail in Canada?

Tyler: So I think a lot of it is very much political posturing. Or maybe that's the cynic in me, but it sort of came right out after a high profile case where a police officer was killed by somebody on bail and a number of provisions were proposed and put into this Bill, including introducing what's called a reverse onus, into repeat domestic offenders as well as some gun offences that weren't previously included. And what that essentially does is the offender has to prove to the court why they should be released, whereas the prosecutor has to prove to the court why should this person be kept in jail?

And so the actual provision itself, I don't think it does much, and it was really admitted as such that there weren't any studies done on this and whether it's going to be effective in achieving its goals. It was admitted that that was the case, and I don't imagine it actually will. Personally speaking, I think that if we want to create a safer, more effective bail system, there are a lot of different ways that we could invest to make that happen, namely I think that we need to have some sort of interim between jail and release into the community. There's halfway houses for things like parole, and I would propose that that should be introduced as a form of bail system, as we don't really have a lot of residential bail systems.

I think that a lot of people who would otherwise be releasable to something like that are kept in jail while they're presumed innocent. And that causes a lot of issues, particularly with people who are homeless or mentally ill because they don't have the resources to perhaps have a surety or have a place or a house or these other things that other people might have. And so they end up staying in jail and many of them will either serve what would've been their entire sentence just waiting for trial. Or some of them may just plead guilty even if they're not guilty, just to escape this sort of circumstance because they're going to have to wait a long time. And that's a real problem, particularly with our very inadequate system to deal with wrongful convictions.

Julia: Thank you for that. I know Tony, you’d like to add, but I think it was a very complete answer to my question.

Tony: No. [Unintelligible 00:37:23] file a submission on that Bill C-48 and this is the wrong sort of chance for the government, both this particular government and the ones before it, with respect to reverse onuses, and I tend to agree with what Tyler said about it being more political in nature, substantially.

Julia: Okay, thanks. That's also good. Also sometimes when you're outside of some field to understand what is not critical and what really will have a great impact, so thank you also for clearing that up. I have one last question, and I think that's something I'm not the only one who has this kind of question, which is the difference between record suspension and a pardon? Because from what I understand they are all contingent on all fines being paid, and I understand that the clock will start once these fines have been paid.

And I was a bit confused, or maybe concerned – more concerned – because I was wondering, I understand that, for instance, to apply for a pardon it costs $631, but also, I understand that you have to pay those fines, and if you don't, well, then the clock won't start again. So I just feel like it's very focussed on does the client have the money, or if they don't have the money, then what are the alternatives, actually, and do we have a system that makes sure that people who do not have that kind of money are not too penalised? And I wanted to have your thoughts on that. Maybe first the difference between a pardon and a record suspension and then a bit of how does it work and what do you do if you do not have that kind of money?

Tyler: I think functionally they're not really that distinct. Record suspension just seems to be the new name for what a pardon used to be. In terms of the financial aspect, I'm personally not aware of any sort of wide-scale programming to help with that, and I think really a big problem – I think Tony might, would know this as well from his experience – but I think most of the people that come across the justice system will tend to not have a whole lot of financial resources. That's not to say that they commit more crime, but probably crime that is more detectable and more obvious. And so these individuals are not getting the benefit of it, whereas somebody who has financial means certainly could benefit from it. And so there needs to be financial assistance with that, or perhaps just a change in the regime overall to maybe make it more automatic. Whereas if you've been of good behaviour for this long and there's no new criminal offences, why don't we just take it off the record after a certain amount of time automatically, similarly to how a discharge works, but for a longer period of time?

Tony: Yeah, I think the main key difference between record suspension and what we used to call pardons is more a function of not only the name but of the legislation that [needed to change? 00:40:23], was that you can actually look behind a record suspension in certain circumstances. So particularly through the sex offences there can be a process by which people can get access to a person’s record suspended offences, whereas before that wasn't possible. And so I think if I recall correctly this was all in and around the Graham James case, which he was a hockey coach from Alberta or Saskatchewan, who committed some sexual offences [unintelligible 00:40:50]. I think that's the case that brought about that change, but I can’t be specific at this time, but it was this idea that there should be some way to access certain offences in a record suspension, and that now is in place where it wasn't before.

Julia: So that was pretty much, for my part, the question that I really wanted to have out there in the podcast. I don't know if there was anything else that you wanted to add? We always have one more question for you, and also, Tyler, when you said, I don't want to be cynical, but I think you both participated into that very important toolkit. And I think what I really like and I think most people really like about it is that it's also very individual – I don't know how to say that in English – but driven to focus on the client and the client’s needs and also to make sure that we offer a good legal service to our clients. And I think this is most important, and I thank you very much and all the team behind that for this toolkit. But I'd like to know also in the world that we live in, how do you remain uncynical? If you're not too cynical maybe you'll tell me that you're just very cynical, but if you're not, then I'd like to know what are your tricks, or what's your tips for people not to become too cynical?

Tony: I'll start. As much as we joke, defence lawyers do incredibly important work on behalf of clients. There are times where you quickly remember what it is that brought you to do this work in the first place. Whether it's an acquittal, which doesn't always happen, sometimes a good sentencing submission to get someone out of jail and then changes the course of their life, there are points in your profession, in your time, particularly as a defence lawyer, where you will truly feel like you just made a difference in someone’s life. They often come to you at a point of crisis at a crossroads in their life, and you are often their only support person because they've been alienated as a result of what they did or are alleged to have done. And that can be at a very important critical point in someone’s life that you are participating in, and it does really make it all worth it at the end of the day. And it does help you forget the crushing losses and the other parts of the job that just comes with the territory, and it is a part of the job that we do.

Tyler: Yeah, I would echo everything Tony has said. I would just add that I think for a lot of accused individuals, the first time that they feel really heard and seen, I think a lot of times no one has really paid any attention or given any dues to the life experiences that they've been through. Just to give an example, one individual, he was thrown through windows as a child so his dad could break in and rob places for drug money. And, well, no wonder he's involved in the justice system now, but no one ever validated that for them and said, “Hey, listen, this is not a normal human experience and this is not okay, what happened to you. I understand why you're here and I understand that you need help now, let me help you.” And sentencing proceedings have sometimes been very emotional for me and very emotional for my clients. I found it really moving that when I was telling her life story, she hadn’t really heard it played out like that and she and her sister were just crying in the court room. And it's moments like that I think are what make this work very meaningful and very rewarding, to just be able to be there for somebody in their time of need.

Julia: Yeah, thank you. I think also in general, the public in general, they have this idea of defence, and I think you just gave a very human lens to it, and I think it's so important and we forget it too often. And maybe also because of media and also what is depicted, but you both made very important points here and I thank you very much and I will make sure this is in our podcast as well. So, well, thank you. I don't know if you wanted to add anything, if you want to share anything more about the toolkit? Yeah, please the floor is yours.

Tony: I just hope that people share the toolkit and they do a regular feature of their practice. If there are deficiencies or other areas that you think should be covered, I urge people to reach out to the CBA, to the Criminal Section, and say, “Hey, I had this case come out where it's not covered in your toolkit,” or “I got this new decision that we talked about collateral consequences.” We'll definitely be updating it as it goes on, and I think that the feedback’s really important, too, for a living document.

Julia: I love to hear that, it's a living document. Like our constitution. [Laughs] Kidding. And Tyler, I don't know if you want to add anything?

Tyler: No, I think that was great. I think it's always going to need to be added to as new human circumstances and things arise out of the criminal justice system, so keep adding, keep bringing up new situations so that we can all serve our clients best.

Julia: Thank you very much, Tyler Schnare and Tony Paisana from the CBA Criminal Justice Section. And thank you for listening to The Every Lawyer. Feel free to subscribe and please reach out to us any time at podcasts@cba.org. Have a beautiful day.