Mitigating and bordering: The dual nature of Canadian collateral consequences of conviction
| Published date | 01 September 2023 |
| DOI | http://doi.org/10.1177/17488958231162512 |
| Author | Lili Dao |
| Date | 01 September 2023 |
https://doi.org/10.1177/17488958231162512
Criminology & Criminal Justice
2023, Vol. 23(4) 588 –607
© The Author(s) 2023
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DOI: 10.1177/17488958231162512
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Mitigating and bordering:
The dual nature of Canadian
collateral consequences of
conviction
Lili Dao
New York University, USA
Abstract
Roughly, 13% of Canada’s adult population has some kind of criminal record. Collateral
consequences stemming from a criminal record are wide-ranging, from formal restrictions to
more informal forms of exclusions. In this article, I argue that Canada exhibits a distinct and
dual approach with regard to collateral consequences. A commitment to principles, such as
human dignity, rehabilitation, proportionality and individualisation in sentencing, especially by the
courts, has increasingly mitigated the impact of collateral consequences in many areas. Yet, these
interventions to limit collateral consequences have been far more uncommon for immigration-
related collateral consequences, where the impact of a criminal conviction has only expanded
in the last decades. This suggests the centrality of the criminalisation of migration in Canada’s
bordering regime and its role in drawing boundaries between desirable and undesirable migrants.
This dual nature of collateral consequences also sends a message about who is, and who is not,
deserving of second chances.
Keywords
Canada, collateral consequences, criminal records, crimmigration, dual penality
Introduction
Approximately, 3.8 million people in Canada have some kind of criminal record, roughly
corresponding to 13% of the adult population (Canadian Civil Liberties Association,
2014; Public Safety Canada, 2020). In Canada, collateral consequences of a criminal
Corresponding author:
Lili Dao, Department of Sociology, New York University, 295 Lafayette Street, 4th Floor, New York, NY
10012, USA.
Email: lili.dao@nyu.edu
1162512CRJ0010.1177/17488958231162512Criminology & Criminal JusticeDao
research-article2023
Special Issue: Collateral Consequences of Criminal Records
Dao 589
record range from more formal sanctions, such as disqualification from jury service,
occupational licencing and professional bodies, inadmissibility to Canada for nonciti-
zens, to more informal exclusions that occur on the labour market, or for housing and
volunteering opportunities (Canadian Bar Association, 2017).
Criminal records have recently been at the centre of legislative policymaking, with
several efforts aimed at undoing Harper era changes to criminal records policy. The
Conservative Party led by Stephen Harper was in power from 2006 to 2015 and, with
its penal populist approach, operated an important shift from prior Canadian penal
policy. From the late 1950s, Canada’s approach to punishment was characterised by its
restrained use of imprisonment, a balance between retributive and rehabilitative goals
and an orientation towards offender reintegration (Meyer and O’Malley, 2005; Webster
and Doob, 2015). During the Harper era, a large number of crime-related bills were
introduced; over 40 became law.1 These, notably, established new or higher manda-
tory minimum sentences, restricted access to release pending trial, and lengthened
parole ineligibility periods. Following decades of stability, important changes were
made to criminal records policy (Murphy, 2020). One of these was to make the sealing
of criminal records under the record suspension programme more challenging (Doob
and Webster, 2016). Certain offences were now excluded altogether, the application
fee increased from $50 to $631, and eligibility waiting periods from sentence comple-
tion grew from 3 to 5 years for less serious offences, and from 5 to 10 years for more
serious ones. Meanwhile, background checks are becoming more commonplace in
Canada (Canadian Civil Liberties Association, 2014) and studies confirm that criminal
record holders are stigmatised on the labour market (Ricciardelli and Mooney, 2017).
While there are statutory limits around the disclosure of certain types of conviction
records, existing legislation has been described as ‘patchwork’ and ‘partial’ (Canadian
Civil Liberties Association, 2014: 4).
An extensive literature has addressed collateral consequences of conviction in recent
years, particularly in the United States (e.g. Corda, 2018; Kirk and Wakefield, 2018).
There are, however, relatively few studies on the Canadian case, despite the substantial
impact that collateral consequences have on many Canadians (Canadian Bar Association,
2017; Canadian Civil Liberties Association, 2014). The literature on collateral conse-
quences in Canada has focussed primarily on the barriers criminal records pose for rein-
tegration and rehabilitation, particularly with regard to employment, and on sealing and
expungement processes (e.g. Kilgour, 2013; McAleese, 2019; Ricciardelli and Mooney,
2017). Critiques have been levied at the Canadian record sealing scheme since the imple-
mentation of the Criminal Records Act in 1970 for its failure to sufficiently promote
rehabilitation, and its inaccessibility due to costs, long waiting periods and bureaucratic
complexity (Eizadirad and Chambers, 2021; Kilgour, 2013; McAleese, 2019; Nadin-
Davis, 1980).
This article examines how Canadian courts and policy have dealt with the collateral con-
sequences of criminal records, with a particular focus on immigration-related consequences.
Immigration law and policy tend to be unique in their approach to criminal records, which
are often ‘readily and irreversibly accepted as a proxy for the criminal record subject’s dan-
gerousness, immorality and unreliability’ (Blitsa et al., 2015: 208). A substantial literature
has examined how migrants have become increasingly criminalised, as well as the growing
convergence between penal policy and immigration policy (Bosworth and Guild, 2008;
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