Thursday, 13 May 2010

What charges are necessary with respect to issuing pardons?

When former Canadian hockey coach, Graham James was convicted of sexually assaulting two kids he was coaching, he was sent to prison for three and a half years in 1997. Everyone thought that would be the last anyone would hear anything about him other than the fact that he was barred from coaching by the Canadian Hockey Association for life. However, after he was released from prison, he went to Europe and coached hockey kids in Spain. If that didn’t infuriate people who became apprised of that information, consider what happen when Canadians became aware on April 4, 2010 that this child molester had been given a pardon in 2007. The use of the word ‘furious’ pales as to what would be a better word with respect to how Canadians really feel about that turn of events.

But if you think that they have reason to be furious over that man’s pardon, imagine if you will, how Canadians will feel when they are later informed that Karla Homolka is pardoned. Under the rules pertaining to applying for a pardon, she will be eligible to apply soon. This truly evil woman was married to a serial killer and she helped orchestrate the kidnapping of two teenage girls and their torture over a period of weeks and their eventual murder by her husband. She also brought about her younger sister’s death although her sister’s death was not intended by her.

This creature made a deal with the prosecutor to plead guilty to three counts of manslaughter instead of facing trial for two counts of murder and one count of manslaughter having been filed against her. The deal was made before a video tape of her role in the torture of the two girls was discovered. She was sentenced to prison for 12 years and served every day of that sentence. When she was released, she was permitted to move to the Antilles. She later moved back to Canada and is supposedly studying law in Quebec.

The purpose of issuing pardons in Canada is to give convicted criminals an opportunity to continue living a crime-free life without the stigma of a criminal record haunting them. Its purpose is a noble one and for the most part, it is well received by the vast majority of Canadians.

Stephen Harper, Canada’s prime minister who likes having his picture taken, (don’t they all?) took the opportunity to have it taken with victims rights advocates, including former NHL player Sheldon Kennedy, just before Toews, his minister of Public Safety introduced a bill relating to pardons, said “a pardon is not a right,” adding “there are some times where actions should never be pardoned.”

The bill immediately met criticism from Opposition critics, and condemnation from lawyers for going too far by proposing sweeping changes that would have a punitive effect. I am in agreement with them on that point.

Prime Minister Stephen Harper’s government says it is not in the “business of forgiveness” and is cracking down on criminal pardons because some criminals should never be eligible for pardons. Under a government bill tabled by the Public Safety Minister, any person convicted of a sexual crime against a minor, or of more than three serious “indictable” offences would be permanently barred from applying for a criminal pardon. This would rule out a pardon for the likes of both Graham James and Karla Homolka since James molested minors and Homolka was involved in the killing of three teenage girls.

The question that must come to the fore is; can their pardons be rescinded even if they haven’t committed any more crimes? Probably not because if their pardons are rescinded, then the National Parole Board would have to review all the pardons they have previously issued which is many, many thousands over the years and begin rescinding all the pardons given to people convicted of sexually molesting children and who were convicted of having committed three indictable offences. We are talking about thousands.

That kind of knee-jerk response would equally infuriate Canadians who believe in justice for all. The reason for their fury would be that most of these convicted criminals who were pardoned, have led crime-free lives and are for the most part, contributing to the social fabric of society.

Toews believes that child molesters are not likely to be cured but that doesn’t mean that they are all incurable and if all their pardons were rescinded, then an injustice would come about with respect to those kinds of sex offenders who have never re-offended and such an injustice would defeat the real purpose of issuing pardons to reformed criminals.

At present, former offenders seeking a pardon must wait three years after their sentence is completed before applying for a pardon if the crime was a summary conviction offence (misdemeanor) and five years for an indictable conviction offence (felony) before applying for a pardon. The government is seriously considering changing the waiting times to five years and ten years respectively, depending on the severity of the offence.

I like that proposal but with a variation. For example, if a person is convicted of a shoplifting offence (theft) he could apply for a pardon after three years whereas if he is charged with fraud under $5,000, he would have to wait for five years. Further, if a person is charged with theft over $5,000 but under $20,000 (which would make the theft an indictable offence) he would have to wait five years and if the theft was over $20,000, he would have to wait ten years.

The government is even toying around with the idea that the word, ‘pardon’ be replaced with the word, ‘record suspension’. Generally, the word ‘pardon’ implies that someone was wrongfully convicted and as a result, their record of conviction is expunged and they receive a pardon. Such a pardon is called an absolute pardon whereas a pardon where the conviction has not been reversed is called a conditional pardon because it can be revoked if the offender is convicted of another offence.

Toews said that the change in the wording would better reflect the actual effect of a pardon and society’s view of the long-lasting harm to victims. I don’t accept that reasoning. Society’s view of the long-lasting harm to victims can best be brought about by sentences that are more appropriate than mere slaps on the wrist.

Fielding a question directed to Kennedy about the role of forgiveness, Toews said that “it is not an issue of forgiveness. That is not for the state to do. That is simply not a state function. That is something that is done between individuals as opposed to the state.” Toews also said, “The current system of pardons implies that what the person did is somehow okay, or is forgiven, or that the harm done has somehow disappeared.”

That statement is unadulterated gibberish. The pardon isn’t meant to imply that the criminal act is forgiven or that the criminal who committed the act is forgiven or that the harm done has disappeared. The act was solely created to help reformed criminals reintegrate back into society. As for the so-called disappearance of the existence of the crime, society per se is probably well aware of a great many crimes that were committed, especially horrific crimes which have been read in newspapers and magazines, heard on radio and watched on TV. Those crimes will never disappear. As to the minor crimes, such as shoplifting, common assault etc., do we really care as a society, whether or not those minor crimes disappear? I think not.

Toews declared that some offenders – particularly pedophiles – cannot be rehabilitated. In his comments to the press, he said, “They can be controlled in some circumstances but I think most experts would agree that it’s virtually impossible to rehabilitate them.”

Just because most experts have arrived at that conclusion doesn’t necessarily mean that their conclusion is correct. There was a time when most experts didn’t believe that humans would be traveling by air to various destinations and experts on explosives stated that they didn’t believe that atomic energy would result in creating an atomic bomb.

Even if pedophiles can’t be rehabilitated in their desire to molest children, they can be reformed not to commit those crimes. Reformation is what pardons are all about. Pedophiles can learn to control their desires to the extent that they won’t act them out against children. Not only is the fear of being sent to prison, to some degree, a deterrent, but the fact that their pardon can be revoked can also be a deterrent, especially if they were pardoned many years ago.

We must never forget that it is not a crime for sex offenders to fantasize sexually abusing other people but instead, it is their acting out their fantasies that the crimes exist. It’s funny when you think about what Toews said about pedophiles. He didn’t mention bank robbers whom we read a great deal about who seem to continue robbing banks after they have been released from prison.

Although improving the Parole Board’s decision-making, training, or establishing a review mechanism for pardon decisions is a step in the right direction, changes, which create entire categories of offenders for whom pardons would be off-limits, are bound to create hardship and unfairness to those who truly have reformed.

Paul Burstein, president of the Criminal Lawyers Association raised a scenario of a person who is 18 who gets in trouble with the law and incurs a summary conviction—a record which “could prevent him from studying or going to work in the U.S.,” because he would now be faced with a five-year wait before applying for a pardon.

Unfortunately, the wait is academic because the American authorities don’t recognize Canadian pardons and anyone convicted of having committed a crime in Canada or elsewhere for that matter; are barred for life from entering the United States unless they have obtained a U.S. waiver which I have been informed, is very difficult to obtain. Further, pardoned criminals can’t even fly over the U.S. on their way to another destination. The U.S. authorities would know about the convictions because several decades ago, the RCMP’s criminal data base (CPIC) and the FBI’s criminal data base are interfaced. As soon as the pardoned ex-criminal has his passport scanned by the Americans at the border or at the airports, his criminal record will appear on the screen, not unlike a boil on one’s backside after a closer examination is undertaken.

The proposal to increase the waiting times for all offences, even the very minor offences such as shoplifting, will backfire because it will encompass all of those people who have paid their debts to society, who have rehabilitated themselves and subsequently will have difficulty in reintegrating themselves back into the workforce. The government’s proposal focuses far too much towards punishment without considering what happens to people when they are eventually released from prison.

But Sheldon Kennedy, who learned on Easter Sunday that his abuser and former hockey coach Graham James was pardoned three years ago, welcomed what he said was a thoughtful response that put the emphasis back on offenders to prove that they have changed.

How does a reformed criminal prove that he has reformed? Surly, if a shoplifter hasn’t been subsequently charged and convicted of another offence in three years; can that not imply that he is living a crime-free life?

The federal government increased the legal age of sexual consent for sexual activity to 16 from 14, or 18 where there is a position of power or trust, but included a “close in age” exemption for consensual sex between teenagers who are aged within five years of each other.) But from now on, the onus would be put on the offenders to show that a pardon or record suspension would provide a “measurable benefit” to themselves “and “sustain their rehabilitation as a law-abiding citizen.”

Toews said the changes would allow for the “rare exception” for pardons in cases where a sexual offender who was convicted of having sex with a teenager, is able demonstrate that there was a “close in age” relationship with the teenager he illegally had sex with. However, if a 19-year-old boy has sex with a 16-year-old girl, I don’t think he will be charged with a crime unless the sex was not consensual. Toews also said the law would still allow a pardon for cases where a sexual offender did not commit a crime against a minor.

I hope that the members of parliament and the senators study these proposals very carefully before they make their decisions as to how pardons are to be given to former criminals. If not, their deliberations might be construed as having been done in the backroom of a bar.

NEW INFORMATION

The government has just announced that all pardon applications already received by the government but not presently reviewed as of yet, will be dealt with under the more lenient rules. In other words, the waiting time for those applications will still be three and five years respectively.

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