Many people believe that obtaining a record suspension, commonly known as a pardon, acts as a magic eraser that completely vanishes a past mistake.
As a criminal defence lawyer, I am here to tell you that a recent and disappointing judgment from the Supreme Court of Nova Scotia, R. v. Skene, has proven that this clean slate is far thinner and more fragile than most Canadians realize.
If you are facing an impaired driving charge, you cannot simply take the hit today with the hope that a future pardon will protect you if life takes another wrong turn down the road. The reality is that a pardon may help you get a job, but it will not necessarily keep you out of a jail cell if you are ever charged again.
Mr. Skene was first convicted of impaired driving in 2016.
He did the work, waited the required time, and successfully obtained a record suspension in 2023. However, four months later, he was charged with a second impaired driving offence. Because the Crown chose to proceed by summary conviction, his pardon technically remained in effect.
At sentencing, the central question was whether the court had to treat him as a first-time offender because of his pardon, or as a second-time offender subject to a mandatory minimum of 30 days in jail. While the trial judge tried to protect the spirit of the pardon, the court ultimately ruled that the 2016 conviction still counted.
The reasoning for this decision seems to run contrary to the rehabilitative goals of the Criminal Records Act.
The court relied heavily on the principle that a record suspension does not retroactively wipe out a conviction. Instead, it merely acknowledges that the conviction still exists while attempting to minimize its future consequences.
The judge determined that the disqualifications and obligations removed by a pardon refer only to administrative, ancillary matters, such as firearms prohibitions or licensing hurdles. The court found that these protections do not extend to punishment on conviction. Because Parliament did not explicitly use the word punishment in the Criminal Records Act, the court concluded that a prior conviction—even a pardoned one—remains a trigger for mandatory jail time on a subsequent offence.
This decision is, in our opinion, deeply problematic and arguably undermines the very character-building purpose of the pardon system.
Lower court judges have previously noted that they are completely flummoxed by a legal framework that tells an individual their character is restored, only to later use that same erased record to justify incarceration. By allowing the Crown to use a pardoned conviction as an aggravating factor, the court is essentially saying that the government’s promise of a fresh start is a conditional one that can be revoked or ignored at the sentencing stage. It creates a systemic inequity where a person’s rehabilitative efforts are pushed aside in favour of a strict, punitive approach to the Criminal Code.
The ultimate lesson of the Skene case is that the only way to truly protect your future is to prevent that first conviction from ever hitting your record.
You cannot rely on the back-end safety net of a pardon because that net has massive holes in it. This is why it is important to hire an experienced lawyer and fight every impaired driving case from start to finish. If you settle for a conviction today, you are essentially pre-signing your own jail sentence for any potential mistake — even decades into the future. Regardless of whether you eventually clear your record.