Should Canadian pardons be transparent?

Canada brought about a law that in my opinion; was a great boon towards fighting crime. The federal government brought to Canada, the Pardons Act. No longer would convicted criminals who had reformed, have to bear the stigma of carrying with them forever a criminal record. It would be an incentive to remain honest.

Our system of justice should, of course, include the pardon option. An 18-year-old convicted for a shoplifting offence should not have to wear that record like a scarlet letter for the rest of his or her life, whether seeking employment or travelling abroad.

The National Parole Board (NPB) is the federal agency responsible for making pardon decisions under the Criminal Records Act (CRA). Under the CRA, the NPB can issue, grant, deny and revoke pardons.

Function of a pardon

A pardon keeps a judicial record of a conviction separate and apart from other criminal records, and gives law abiding citizens an opportunity to reintegrate into Canadian society. The CRA removes all information about the conviction for which an individual received the pardon from the Canadian Police Information Centre (CPIC). Federal agencies cannot give out information about the conviction without approval from the Minister of Public Safety Canada.

A pardon does not, however, erase the fact that an individual was convicted of a crime. The criminal record is not erased, but it is kept separate and apart from other (non-pardoned) criminal records. That means that it will not appear in CIPIC however, it will show up in the FBI computers if the crimes were committed sometime after the mid 1980s. That is because Canada and the United States agreed to share their information on convicted criminals but also agreed that there would have to be a starting point otherwise their records would be overwhelmed. In essence, anyone convicted of a crime before that starting point, would not be in the FBI records and for this reason, they would not be prevented from entering in or crossing over the United States in a plane.

A pardon does not guarantee entry or visa privileges to another country. Before travelling to another country, individuals should contact the authorities of the country in question to find out what the requirements are to enter that country.

A pardon does however remove disqualifications caused by a criminal conviction, such as the ability to contract with the federal government, or eligibility for Canadian citizenship.

If an individual in receipt of a pardon is convicted of a new offence, the information may lead to a reactivation of the criminal record for which the pardon was received in CPIC.

Processing of pardons by the National Parole Board generally takes on average 60 days for a summary offence and 180 days for an indictable offence.

Eligibility

Individuals can apply for a Pardon if they were convicted as an adult of a criminal offence in Canada, or of an offence under a federal act or regulation of Canada, or if they were convicted of a crime in another country and were transferred to Canada under the Transfer of Offenders Act or International Transfer of Offenders Act. Non-Canadian citizens are not eligible for a Canadian pardon unless they were convicted of a crime in Canada.

To be eligible for a pardon, individuals must have completed all of their sentences. Individuals are considered to have completed all of their sentences if they have:
• paid all fines, surcharges, costs, restitution and compensation orders
• served all sentences of imprisonment, conditional sentences, including parole or statutory release
• completed their probation order.
Following completion of all of their sentences, individuals must also complete a waiting period, as follows:
• 3 years for Summary Convictions under the Criminal Code or other federal act or regulation
• 5 years for Indictable Convictions under the Criminal Code or other federal act or regulation
• 5 years for all convictions by a Canadian offender transferred to Canada under the Transfer of Offenders Act or International Transfer of Offenders Act
• 5 years under the National Defence Act, if you were fined more than $2,000, detained or imprisoned more than 6 months, or dismissed from service
• 3 years under the National Defence Act, if fined $2,000 or less, detained or imprisoned 6 months or less, or subjected to various lesser punishments for a service offence

Applying for a pardon

I applied for a pardon and was given it. When I served in the Canadian Navy, I was charged with being AWOL. In that instance, it was a minor offence. Our ship was leaving port in two days and someone had stole my great coat. Without that coat, I would freeze while on deck. I left the ship without permission and went to the naval stores and bought another great coat. When I returned to our ship, I was charged with being AWOL even though I was only gone an hour. The punishment? A fine of two dollars. A year later, I felt too ill to go on parade so I stayed in the barracks. The punishment? I spent a night in the base naval brig. Needless to say, I had no difficulty in getting pardoned when I applied for it many years later. Now there is no record of those two convictions or the pardons in existence. I was informed that they were literally destroyed on orders of the National Parole Board. Maybe they were running out of storage space.

I do know for a fact that all criminal records and pardons are eventually purged when former criminals reach the age of eighty.

Individuals can apply for a pardon by filling out the application forms available from the Parole Board and by paying a $50 pardon application fee. Be sure to send all required documents or the application can be delayed. The NPB has a toll-free pardons helpline at 1-800-874-2652 and a website at www.pardons.gc.ca

Investigations of applicants

There was a time when applicants for pardons were thoroughly investigated by a member of the federal police, which is the Royal Canadian Mounted Police (RCMP)His past and present employer would be interviewed along with his friends and neighbours. The investigation was very discreet so no-one being interviewed had any idea as to why the interview was being conducted. As the years passed, the amount of applicants increased to such a point, that interviews were far too time consuming so they stopped.

There was also a time when applicants who were refused a pardon would not be told why. When I learned of this, I appeared before a Canadian Senate hearing dealing with the then existing Pardon's Act and said that every applicant should be told why he or she is refused a pardon. I even wrote a small paper on this subject which is in the law library of the University of Toronto. After that, applicant's who were refused a pardon were told why.

A couple a years later, a friend of mine complained to me that he was told that he couldn't be pardoned because he was associating with known criminals. He admitted that he was but he told me that he was working undercover at the request of the Ontario Police Commission. I wrote the then Solicitor General of Canada and passed this info onto him. Three weeks later, my friend received a letter from the Solicitor General apologizing on behalf of the National Parole Board and a week after that, my friend received his pardon.

Clemency

In Canada, clemency is granted by the Governor-General of Canada or the Governor in Council (the federal cabinet) under the Royal Prerogative of Mercy. Applications are also made to the National Parole Board, as in pardons, but clemency may involve the commutation of a sentence, or the remission of all or part of the sentence, a respite from the sentence. It is only given when it has been established that the person applying for that kind of pardon was truly innocent.

When a person who has been pardoned for a crime he or she committed, that person cannot deny that he or she was ever convicted of a crime. The pardon merely states that there is no evidence that he or she hasn’t reformed.

However, when a person applies to a provincial government for a licence, such as a security or investigator’s licence, that person will be asked if he or she has ever been convicted of a crime of which he or she has not been pardoned. If the applicant received a pardon, then the applicant can honestly write in the word, NO.

If a person is asked to provide a security clearance from their local police force (security guards and private investigators, to name just two require them) and that person has been pardoned, the report of the police will be that there is no record of a conviction on file. To anyone reading that report, he or she can conclude one of two things. Either there never was a conviction or alternatively, there was but the person was pardoned.

There is an exception to this. If the person is applying for a job as a child care worker or as a position in a children’s camp etc., and that person has been convicted of a sexual crime, his or her name will be in Canada’s National Sex Offender Registry. (NSOR) Generally, their names are kept in the registry for a period of not less than ten years from the time that their sentence is completed. The database does not include offenders who completed their sentence prior to proclamation of the legislation in December 2004.

Unveiled in 2004 by the federal Liberals, the NSOR was supposed to be a state-of-the-art investigative tool, a nationwide database that can tell police which rapists and pedophiles live in which neighbourhoods. But Whitmore - a man so dangerous that the National Parole Board considered him a "100 per cent" guarantee to re-offend - was not listed on the system.

Peter Whitmore, a notorious child molester who was a resident of British Columbia was convicted in 1993 of sexually assaulting four boys. Eight days after his release from prison, he abducted a young girl. In 2000, Toronto residents tried to run him out of town, but he made an impassioned plea on national television: "I have control over what I do." He didn't. Detectives found him in a hotel with a 13-year-old boy. A year later, while back on probation, police discovered a rape kit in his possession comprising of latex gloves, duct tape and photographs of kids. A judge sent him back to jail.

Yet by the summer of 2005, it seemed as though the system finally had a firm grip on Peter Whitmore. After he served every last day of his three-year sentence, authorities slapped him with a Section 810, a court order that imposed a long list of strict living conditions. He wasn't thrilled, but for 12 straight months, the infamous predator did as he was told.

While living under that order, Whitmore followed the rules. He didn't go anywhere near a pool or a playground. He didn't talk to children, online or otherwise. And he was back home (at his aunt's house in Chilliwack) every night by 10 o'clock. For once in his life - for an entire year, in fact - Whitmore was a law-abiding pedophile. In 2006, police found him again; two more young boys - 14 and 10 - had been kidnapped, shackled and raped. He was sentenced to life in prison with a proviso that he must serve a minimum of seven years before he can apply for parole.

Was the infamous child molester previously listed on the NSOR? Apparently not. The prosecutor didn’t ask the trial judge to have Whitmore’s name placed in the registry.

Unlike in the United States, the Canadian public does not have access to the National Sex Offender Registry. It is a database that provides Canadian police services with important information that will improve their ability to investigate crimes of a sexual nature. This means that there was no way that that the general public knew that Whitmore was not listed in NSOR.

The registry can barely keep track of sex offenders who are ordered to comply. At last count, 16,295 names appeared on the system; 1,270 were considered non-compliant. Some of those people never registered at all. Others had failed to check in as required - 317 in Ontario, 201 in Alberta, 134 in British Columbia. Quebec is the worst, by far. The province is home to 2,554 registered sex offenders. One in five (480) are missing.

It certainly should be a condition of parole that convicted sex offenders should register with NSOR (if they aren’t already registered) and if they fail to do this, they should be returned to prison to serve the rest of their sentence.

According to internal government documents obtained by Maclean's Magazine under the Access to Information Act, the registry is crippled by one major problem: Ottawa's obsession with privacy. The feds are so determined to protect the rights of convicted sex offenders, that most police officers are not allowed to access the system. The police should always have the right to have access to NSOR.

What is troubling about this week's news concerning convicted sex abuser Graham James is not just that he was given a pardon for his crimes. It is also that we didn't find out about the pardon until three years later, and only then by accident – after a previously unknown accuser contacted the Winnipeg police with new allegations of sexual abuse at the hands of James.

James seemed an ideal coach and mentor. He guided the Swift Current Broncos from tragedy - a 1986 bus accident that killed four players - to the Canadian junior championship just three years later. The Hockey News named him Man of the Year. He moved on to another team and continued coaching until 1997, when he was charged and convicted of sexual assault, the evidence detailing hundreds of incidents dating back over a decade. Sheldon Kennedy, a former Bronco and NHL veteran, went public with his story. He told of countless assaults during his teenage years, and how James used his position to prey on the vulnerable.

I cannot fault the National Parole Board for giving James a pardon. Under the existing law with respect to the awarding of a pardon, he was eligible. Even in the case of more serious crimes, such as James' sexual assault conviction, the perpetrators should have access to pardons, provided they have demonstrated that they are back on the straight path.

But they should not be granted automatically, as they apparently are now, once a period of time has passed and a police check confirms there have been no subsequent offences. The request is made in writing, and the National Parole Board rubber-stamps it. Only a tiny percentage are turned down. A spokesperson for the board says its members "have very little discretion in the granting or refusal of a pardon to an individual as eligibility is strictly prescribed" in law.

Nor does the law differentiate between minor offences and major crimes, except to say that the wait period for the former is three years and for the latter five years after completion of sentence. Otherwise, the application process is the same for both – largely a paper transaction handled by officials behind closed doors. Unlike sentencing or parole hearings, there is no opportunity for, say, the victims to express their views on whether a person should be pardoned.

For serious crimes, this seems wrong. Imagine, for example, if school girl killer Karla Homolka got a pardon this way and it was only discovered a few years after the fact.

Homolka was convicted of manslaughter of two young girls. She participated in the kidnapping and rape of two young girls by her husband. Years after her release from prison after serving twelve years in prison, she has, expressed the hope that she will one day be pardoned, according to a psychiatric evaluation. "She has been thinking about possible careers she might pursue and she hopes ultimately to earn a pardon," wrote the examining psychiatrist. Homolka becomes eligible for a pardon this year, five years after her plea-bargained, 12-year sentence for manslaughter was served.

Reforms to the pardon system ought not to be implemented in haste or without careful thought, by both the government and Parliament. At the same time, we shouldn’t ignore the issues raised by the James case, especially given that pardons are becoming more frequent, rising from about 15,000 to 40,000 a year in recent times. As Public Safety Minister Vic Toews weighs the options, he should err on side of more transparency for pardons of serious crimes.

I don’t think a pardon should be given to any sex offender until his or her name has been removed from the National Sex Offender Registry. Further, his or her name should be kept on list in that registry for a minimum of ten years after his or her sentence has been served in full. If they are convicted again, then their names should be re-entered in NSOR for another ten years after their second sentence is completed.

As to whether of not an announcement that the person has been pardoned should be made public, I don’t think it should. What is the point of issuing a pardon if the person receiving it is going to be publicly embarrassed? The purpose of the pardon is to give the reformed criminal another chance to fit into society again without that person’s past coming back to haunt him or her?

For more information on pardon Canada, please visit The National Pardon Centre at nationalpardon.org.