The Pardon System in Canada (Part II)

The pardon system in Canada is part and parcel of an approach to the administration of justice that focuses primarily on the rehabilitation of former criminals and the enhancement of their ability, wherever and whenever possible, to become contributing members of society.

Being given a pardon for crimes committed in the past in Canada does not mean one’s record is overturned or erased. It means that if the Parole Board of Canada is satisfied the offender has not re-offended and is making a significant contribution to society, their record is stored in a separate database which is out of reach to most criminal record checks such as those done by the police and employers. If the police want access to a former criminal’s past criminal record, a request has to be forwarded to the Canadian Minister of Justice first. Further, if an employer notes on the criminal record check form that the applicant is seeking to work with children, convictions of child sexual abuse will be disclosed.

Public Safety Minister Vic Toews introduced the pardon bill (C-23B) last spring. Parts of the bill were hived off and passed quickly in June in order to prevent child killer Karla Homolka from receiving a pardon when she became eligible to apply for one in July 2010. Those parts included giving the Parole Board of Canada more room to deny a pardon if it would bring the administration of justice into disrepute. That would include considering the nature, gravity and duration of the offence.

I should point out that had Homolka been convicted of murder, she would not have been eligible for a pardon but since she was convicted only of manslaughter (because of a deal with the prosecution), she could have applied for her pardon.

The bill would also replace the word ‘pardon’ with ‘record suspension.’ This would mean that if someone is really pardoned for a crime they were convicted of, the reason for the pardon is because the court has subsequently ruled that the person who was originally convicted was in fact, really innocent of the crime all along.

The changes with respect to pardons in Canada all came about because of one man. I am speaking of junior hockey coach, Graham James. James was convicted of abusing hockey player Sheldon Kennedy and another player and sentenced to 3.5 years in prison. In 2007, (five years after his release) James received a pardon. Now he is being accused of repeatedly sexually molested other young hockey players he coached in the past and is currently in jail again facing the new charges. Naturally, if he is convicted, his pardon will be revoked however if Bill C-23B is passed, his bill will be revoked anyway and he will be forever ineligible to apply for a pardon again.

The proposed changes (section 4) says that a person will only be eligible for a record suspension after they have served their sentence: 10 years for indictable offences (more serious crimes) up from 5 years, and 5 years for summary conviction offences (less serious crimes) up from 3 years. The changes also say that anyone convicted of sexual abuse of a child will never be pardoned.

The only way a person convicted of a sex offence can still get a record suspension is if: (1) the person was NOT in a position of trust or authority towards the victim and the victim was not in a relationship of dependency with him or her, (2) the person didn’t use, threaten to use, or attempt to use violence, intimidation or coercion in relation to the victim, and (3) the person was less than 5 years older than the victim.

This proposed section gives the Board the power to suspend the applicant’s criminal record if it is satisfied that: (1) the applicant has been of good conduct during the relevant waiting period (i.e. 10 years or 5 years, depending on the seriousness of the offence) and not convicted of an offence under any Act of Parliament and (2) for indictable offences, ordering the record suspension would: (i) provide a measurable benefit to the applicant, (ii) sustain the applicant’s rehabilitation in society as a law-abiding citizen, and (iii) would not bring the administration of justice into disrepute.

Based on the current waiting periods, over 96% of those who have received pardons (approximately 400,000 since the pardon system started) have kept them. This means that they were never convicted again of any further crimes. This is proof that being pardoned is an incentive to remain straight.

Further, a person will be ineligible to apply for a pardon if he or she was convicted of more than 3 indictable offences (felonies). I have a problem with this aspect of the proposed Act. For example, does it mean that the person has been arrested three times and convicted of three separate indictable offences or does it mean that he was convicted of three indictable offences for crimes he committed at the same time such as kidnapping, robbery and assault causing bodily harm?

Admittedly, sexual abuse against children is a serious crime but even though many of the abusers are not really cured of this illness, there are some that are. They carry on with normal lives and never re-offend again. Should these people also be denied a pardon? We must not forget that being pardoned is an incentive to a great many pardoned people not to re-offend again.

The National Parole Board may consider a number of factors when determining whether to order a record suspension. Among other factors (which may be prescribed by the Public Safety Minister by regulation), the Board may consider:
(a) the nature, gravity and duration of the offence;
(b) the circumstances surrounding the commission of the offence;
(c) information relating to the applicant’s criminal history that is relevant to the application for a pardon.

The Board may now disclose decisions to order or refuse to order record suspensions. However, it may not disclose information that would reasonably be expected to identify an individual unless that person consents.

Years ago, when the Canadian Pardon’s Act was being proposed, there were hearings convened by the Canadian Senate and I was invited to give my views at one of the hearings on the draft proposal. I was concerned that the draft stated that if a person was refused a pardon, he or she would not be given the reason. As a result of my recommendation, that aspect of the proposed Pardon’s Act was removed. A couple of years later, a friend of mine came to me and told me that the Board had refused to give him a pardon and they gave him the reason. The Board said that he was known to be associating with known criminals. That was true of course but the reason why he was associating with known criminals was because he was an undercover agent with the Ontario Provincial Police Commission. When I passed that information on to the Solicitor General of Canada, he in turn later wrote my friend and apologized to him and told him that his Pardon was in the mail. Had my friend not been told why he had originally been refused a pardon, he never would have received his pardon.

We must never forget that although a reformed criminal can receive his pardon, this doesn’t mean that the United States will recognize his pardon. The U.S. authorities have never recognized a Canadian pardon and that is why pardoned citizens in Canada cannot enter the United States or even fly over them. Once their convictions have been entered into the FBI data base, they are there permanently; pardon or no pardon. However, I am only speaking of crimes that were entered in the FBI data base from the middle of the 1980s and beyond.

In the case of adult offenders, the Criminal Record file will be destroyed the earlier of either three years after their death or the date the individual reaches 80 years of age although this will not apply in certain circumstances, such as where the individual has been charged with an offence within the previous 10 years.

Absolute and conditional discharges will be removed to an archive as follows: absolute discharge on or after the 24th of July, 1992 upon the expiration of one year from the date of sentencing (it is then archived for five years and then destroyed); and conditional discharge on or after the 24th July, 1992 upon the expiration of three years from the date of sentencing where it is archived for five years and then destroyed.

Conditional Discharges prior to the 24th of July 1992 will be destroyed on written request. Where a pardon is granted, the information about this offence is removed from CPIC to secured storage, separate and apart from all other criminal records. It is later destroyed following the guidelines set out above for regular criminal record files.

In the case of a charge not resulting in a conviction, the accused may make a request to the police agency that handled the case to have the information removed from local police files and RCMP records. The RCMP will return a person’s fingerprints and remove the offence information from CPIC, only on the request of the police agency that handled the case. Special rules apply to young offenders.

As explained previously, even though a person does not have a ‘criminal record’, it does not mean that the person has not been convicted of a criminal offence. While the presence of a criminal record is more likely to lead to negative consequences for the individual, many of the issues raised above also apply to those who have been convicted of a criminal offence but who do not have a ‘criminal record.’ Depending on the circumstances and on the way the question is formulated, the lack of a criminal record is irrelevant.

As I said earlier, being pardoned and/or having one’s criminal record totally destroyed is a real incentive for a former offender to live an upright and productive life.