Skip to content

Pardon Me?

|Written By Edward Prutschi
Pardon Me?

In the face of recent pardons both real (sex-offending hockey coach Graham James) and presumed (notorious serial killer Karla Homolka), it should come as little surprise to anyone that Public Safety Minister Vic Toews is anxious to revamp a system that has come under increasingly blinding public scrutiny.

A quick glance at the numbers implies that Canada’s current pardon system is little more than an administrative rubber stamp. In 2009-10, over 24,000 pardons were granted by the National Parole Board. This represents success for 98 per cent of those who filled out the application.

While these statistics reveal a pardon system ripe for revision, the legislation currently being proposed appears designed to target the exception while inadvertently penalizing the rule. A fair discussion of pardon reform requires a clear understanding of the purpose of pardons in the first place coupled with full knowledge of what a pardon does, and does not, do.

Despite some political hyperbole to the contrary, a pardon has never been an indication of “government forgiveness.” By replacing the term “pardon” with “record suspension” the proposed legislation is continuing to oversell the actual value of obtaining a pardon.

A pardoned offender who has been placed on the national sex offender registry or DNA databank continues to be subject to searches that access these lists. The fear that a pardoned James could dupe a vulnerable sector screening and return to coaching young boys’ hockey is entirely unfounded.

Moreover, the perception that pardoned offences under the current system are “forgiven” or “erased” dramatically overstates the value of a pardon. Foreign jurisdictions — most notably the United States — are under no obligation to respect a Canadian pardon and frequently have access to an offender’s complete criminal record, including pardoned offences.

Even within Canada, the current legislation does not delete a pardoned offence but simply moves the crime from one box in the digital criminal record to another. Contrary to popular belief, there are circumstances in which pardoned offences can be disclosed and viewed and the pardon itself can even be entirely revoked.

While it may seem glaringly obvious, often forgotten in the current emotional debate over pardons is the fact that consideration of a pardon does not occur until after an offender has served the entirety of his or her sentence. The fundamental underpinning of any pardon system is that once an offender has served out his sentence, his debt to society is paid and his punishment should end.

Reasonable people can argue — as they often do — that Canadian sentences are woefully inadequate to properly “pay” that debt but that is a different discussion that must be divorced from a logical analysis of the pardon system. The role of a pardon is to alleviate unintended ancillary consequences that come with a criminal conviction but that were never meant to be part of an offender’s sentence.

Think of the drug user who can never travel outside of Canada; the impaired driver who can no longer be accepted to her professional school program; or the permanent resident convicted of an assault in a bar fight who may now be ineligible for Canadian citizenship. It is these examples of collateral damage that were never intended to be part of the offender’s sentence which a pardon is designed to address.

Much of the recent hysteria over the inadequacy of Canada’s pardon system is rooted in the perception that violent recidivist criminals are having their past misdeeds wiped clean allowing them to lie in hiding in our communities until they inevitably reoffend.

Statistics explode this popular myth. Since 1970, over 400,000 pardons have been granted. Pardoned offences are never truly erased from our system and can be revoked should the recipient ever be convicted of a new offence. And yet, of those 400,000 pardons in existence, over 96 per cent remain in force indicating that pardoned individuals are extremely unlikely to engage in new criminal activity.

Much of the success of the current pardon system in maintaining such a low revocation rate can be traced directly to the waiting periods enforced before someone is eligible to apply for a pardon. As the law currently stands, summary convictions can be pardoned three years after the completion of sentence while the more serious indictable offences must wait five years.

The key phrase that seems to have been lost in the current rush to prove one’s get-tough-on-crime bona fides is “after the completion of sentence.” The three- and five-year waiting periods are, in practice, substantially longer as an individual only becomes eligible after completing all aspects of his or her criminal sentence including jail time, payment of fines, and completion of probation and parole.

Thus, the first-time offender convicted of drinking and driving who receives the minimum sentence of a fine with a one-year driving prohibition cannot apply for a pardon until four years after his conviction (the three-year clock only begins to run after the one-year driving prohibition has been served). With probation on serious offences running as long as three years after an offender is released from jail, violent offenders will wait far more than five years before they become eligible for a pardon.

James entered guilty pleas to his sexual assault charges in 1997 and only received his pardon a full decade later in 2007.

The new law’s proposal to expand the waiting period for pardons to five and 10 years for summary conviction and indictable offences respectively will do little to keep Canadians safer from the likes of James or Homolka. But what it may do is prevent a 19-year-old convicted of street racing from ever getting into medical school.

Before making a decision on what kind of pardon system we want, Canadians need to answer a fundamental precursor question: do we care more about political pandering that yields little benefit to genuine public safety or do we want to see a system that encourages rehabilitation and reintegration for those who have succeeded in abandoning their criminal antecedents?

Edward Prutschi is a criminal lawyer and partner at Adler Bytensky Prutschi (crimlawcanada.com) in Toronto where he defends all manner of criminal charges in courts across Ontario. He can be contacted at 416-365-0853 or e-mail him at prutschi@crimlawcanada.com.

  • PARDON system CHANGE

    sam
    very good point, I also ran into this story on another website:

    This pardon law is going too far just in the case of a Hockey coach and Karla, we should definitely look at all aspects of the law before agreeing with it.


    I am going to share with you a brief story of my life; yet, how my life has changed with the dream of a pardon.
    And how a change in this pardon system will affect my life greatly.


    I was only 15 when I moved to Canada, I was alone and I had absolutely no one in this country, I moved here because my family had political issues abroad, my father has a PHD and my mother has a Masters. My whole family was educated and never involved in any sort of crime. After I moved here I had financial problems, I was never supported by my family as they had many problems of their own. I went back to high school and tried my best to continue my education, later I had to quite 12th grade and work as a kitchen helper for $6.25 an hour, so I can just eat and sleep at night. The next year I went back to school and I was on social assistance. I was determined to finish my school and go to University. I moved to a room in downtown Toronto, the rent was $280 a month. I was trying my best to make ends meet. I finally graduated high school. I decided to work for a year so I can save up some money and go to University. This is where my life changed forever. The house I lived at was full of criminals and they all stole or sold drugs. I as a 19 year Old I wanted different things in life, so I went along with one of my roommates while he was stealing a car. Later I decided to steal a couple cars with two of my friends. I got arrested twice within the same month and I was charged with five different offences including attempt theft over, pos over, and pos tools, the first time I got arrested, cops simply charged me and released me the same day. (I wish they actually sentenced me to time in jail the first time)

    I had no money for a good lawyer nor did I have a family to rely on nor did I have anyone giving me any advice. I had to get Legal Aid and for anyone who has dealt with legal aid, you would know that not a lot of good lawyers accept legal aid. I finally got a lawyer and he made me plea guilty to three charges. I served 15 days in jail, and I had four convictions all indictable and a three year probation.
    I knew I did not want this and I didn
  • Lawyer

    L. Stringer
    A couple of comments and questions for Mr. Prutschi:

    1. Re Graham James remaining the national sex offender registry therefore being unable to "dupe" a vulnerable sector screening and return to coaching young boys
  • Partner, Adler Bytensky Prutschi

    Edward Prutschi
    One helpful reader of this post reminded me of a further important point that I neglected to make in the original editorial.

    The worst offenders in our system -- those given a life sentence (usually, but not exclusively, for murder) NEVER complete their sentence and are thus always inelligible for a pardon.
  • Partner, Adler Bytensky Prutschi

    Edward Prutschi
    Thanks for posing the question Lawrence. Space limits make it difficult to cover all the possibilities within the editorial but, generall speaking, I believe your educated guess is correct.

    IF someone waits until their pardon has cleared CPIC and thus does not show when US authorities query the system, they likely will never learn of the pardoned offence and thus not flag you in the system.

    However, I have heard anecdotally of some instances in which CPIC has not been updated immediately following the issuance of a pardon and a person has travelled during that transition period (which can sometimes be 6 months or longer) only to learn that they've caused themselves to be permanently flagged.

    Another problem arises if a person is actually questioned by DHS at the border or has to fill out a form / answer inquiries about past criminal history. For example, if a US DHS officers asks "Have you ever been arrested in Canada?", you can try to say "Yes, but I have a pardon..." and I'm guessing the DHS officer didn't hear anything after "yes" and will flag you for eternity. In Canada, lawful inquiries of this type are typically phrased "Have you ever been convicted of an offence in Canada for which a pardon has not been granted." US authorities and/or employers are not obligated to phrase their question this way and answering "no" in accordance with Canadian law as it relates to pardoned offences may be a material misstatement in the eyes of the US.

    Although this may be a typical legal cop-out, I always advise clients to consult with immigration law counsel in situations where they have a pardon and wish to cross the border into the US.
  • Travel to the US

    Lawrence Gridin
    Hi Ed,

    I have a question regarding travel to the USA. My understanding is that Department of Homeland Security (DHS) border agents will query CPIC to check a Canadian's criminal history at the border.

    If you have a record and try to cross into the USA, the border guard will query CPIC, find the record, and then automatically copy that record into DHS' database. It remains there permanently, and as you say, does not have to be removed when the Canadian receives a pardon.

    HOWEVER, I think that if you only travel after receiving a pardon, then the CPIC query will come up blank and nothing will be copied into the American databases.

    That's just my guess about how it works. Any thoughts on this?

SPECIAL REPORTS



Save