The recent decision by the Supreme Court of Nova Scotia in R. v. Skene addresses important issues surrounding how a prior pardon for impaired driving could impact your sentencing.
For years, there has been a pervasive misconception that a record suspension—formerly known as a pardon—functions as a legal reset button, insulating a person from the penal consequences of their past. However, the judgment in Skene completely changes this perception, particularly in the context of impaired driving offences. This decision is not merely a technical exercise in statutory interpretation, but a clear signal that the only strategy for protecting your future is to prevent a conviction from ever occurring in the first place.
The Background Facts in R. v. Skene
Mr. Skene was first convicted of impaired driving in 2016. Following the mandatory waiting period and a demonstration of good character and conduct, he was granted a record suspension in 2023. Approximately four months later, he was charged again with impaired driving.
The Crown elected to proceed by way of summary conviction but served a Notice of Increased Penalty, seeking a mandatory minimum sentence of 30 days in jail based on the 2016 prior conviction. The trial judge initially ruled that the record suspension barred the consideration of the earlier conviction for the purpose of imposing a mandatory minimum punishment. The Crown appealed on the question of whether a pardon truly shields a person from being treated as a repeat offender in subsequent impaired driving prosecutions.
Disqualification or Obligation
The crux of the legal analysis rested on section 2.3(b) of the Criminal Records Act, which stipulates that a record suspension removes any disqualification or obligation to which the applicant is subject by reason of the conviction under federal law. The defence argued for a broad interpretation of this provision, suggesting that a mandatory jail sentence constitutes a disqualification from liberty or a legal obligation to serve time.
Justice Arnold rejected this expansive reading. Adopting a contextual and purposive approach, the court determined that the terms disqualification and obligation are used in a narrow, administrative sense. By examining the exceptions listed within the Criminal Records Act, like firearms and driving prohibitions, the court concluded that Parliament intended to address ancillary orders and administrative hurdles, such as licensing restrictions, rather than the true penal consequences of a conviction.
The judgment concluded that if Parliament had intended to shield individuals from punishment, it would have explicitly included that term in the legislation alongside disqualification and obligation. Consequently, the prior record remains legally in force for the purpose of sentencing on a second offence. This underscores a fundamental shortcoming of the pardon: it is a rehabilitative tool designed to assist with civil integration (such as employment or travel), but it offers no sanctuary from the escalating penalties of the Criminal Code.
The Retroactive Acquittal
The Skene decision draws heavily on the Supreme Court of Canada’s ruling in Therrien v. Quebec, which clarified that an administrative pardon is not a free pardon or a retroactive acquittal. In the eyes of the law, the conviction is not wiped out. It is merely kept separate and apart.
Justice Arnold noted that several provisions of the Criminal Records Act would be rendered meaningless if a pardon functioned as a total erasure. For instance, the Minister’s power to disclose a suspended record in the interests of the administration of justice and the Parole Board’s power to revoke a suspension both presuppose that the conviction continues to exist. The integrity of the pardoned person is restored in a social and administrative sense, but they remain a person with a criminal history when they stand before a sentencing judge for a new offence.
Case Law Misprint
One of the most remarkable aspects of the Skene decision is the so-called “correction” of a decades-old error in Canadian legal databases. Many previous decisions the defence relied upon were influenced by a misprint in the 1977 Ontario Court of Appeal case, R. v. Spring. Electronic reporting services had erroneously substituted the word direction for discretion in the passage regarding how to treat pardoned offenders.
For years, some courts operated under the mistaken belief that the law provided a direction to treat pardoned individuals as first-time offenders. However the Court’s review of the original 1977 report clarified that judges merely have the discretion to do so. Where the Criminal Code imposes a mandatory minimum sentence for a second offence, that judicial discretion is effectively superseded by statute.
Adult vs. Youth Records
The court also conducted a comparative analysis with the Youth Criminal Justice Act, which explicitly states that a finding of guilt in youth court is not a previous conviction for the purpose of prescribed greater punishments in future adult proceedings.
The Criminal Records Act contains no such parallel language for adults. The Court concluded that Parliament had intended to provide adult offenders with the same enhanced protection found in the Youth Criminal Justice Act, it would have used similar, explicit phrasing. The absence of this language was interpreted as a deliberate legislative choice, which created a significant disparity: while a youthful mistake might be truly buried, an adult conviction remains a permanent legal liability that can be resurrected to justify incarceration, regardless of a subsequent pardon.
The Crown’s Discretion
Finally, the decision addresses the specific nuances of impaired driving amendments. Under the Criminal Records Act, a record suspension for a prior DUI does not automatically cease to have effect if the person is subsequently convicted of a summary impaired driving offence. The defence argued this exception was intended to protect pardoned individuals from jail.
The court disagreed, suggesting that this section merely allows the record suspension to survive in a technical sense so that the offender does not lose the civil benefits of the pardon (like employment eligibility). It does not, however, prevent the Crown from using that prior record to satisfy the requirements of a second offence for sentencing.
Furthermore, the 2018 amendments to the Criminal Code were specifically designed to increase the deterrence and punishment of impaired driving. To interpret the Criminal Records Act as a means of bypassing mandatory minimum jail sentences would be inconsistent with Parliament’s clear objective of public protection.
The Strategic Necessity of Vigorous Defence
The lesson for anyone facing an impaired driving charge is clear: A pardon is not a cure-all. It is a secondary, administrative process that provides no guarantee of protection within the criminal justice system. As R. v. Skene demonstrates, once a conviction is entered, it becomes a permanent part of your legal profile, even if it is later suspended.
This judgment reinforces why it is so important to hire experienced and specialized DUI lawyers to fight a DUI charge from the outset. If you take a plea today with the intention of seeking a pardon later, you could leave yourself exposed to a mandatory jail sentence should you ever face a similar charge in the future.
The Crown’s ability to use a pardoned record as an aggravating factor on sentencing means that the stakes of the first trial are far higher than they appear. Since clean slates are now nothing more than a fiction, the only true protection is an acquittal at the first trial.
