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 email@example.com.