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News headlines make it seem as though our pardons system is broken. People are outraged that Graham James (a hockey coach who was convicted of sexual assault back in 1997) was pardoned by the National Parole Board in 2007. Some have suggested that it was done “quietly” and “routinely”, that the application was “rubber stamped”, etc. The blame game doesn’t really get us very far. Ottawa has reportedly made statements to the effect that they never knew, were never consulted, did not approve of this pardon, etc. So did the National Parole Board do something wrong? To help answer these questions, I thought it would be worthwhile to talk about the history of our pardon system. That way, we’ll know the context of our present debate.
Origins
The origins of our current pardon system stems from the Criminal Records Act. That Act governs pardons and the National Parole Board’s ability to grant or issue them. That Act was authored by a lawyer and MP named Don Tolmie back in the late 1960s. He believed that it was unjust to add to a person’s punishment after a court had already sanctioned him or her. Tolmie drafted the legislation, presented it as a private member’s bill, and was successful in making it into law in 1970.
Problems
In its initial form, the Act was not doing a very good job. For starters, getting a pardon did not help people avoid answering the question: “Have you ever been convicted of a crime”? If you had a pardon, then the truthful thing to say was: “Yes, but I’ve been pardoned”. Human rights laws hadn’t been taken into consideration at that time. Note: present Ontario human rights laws prevent an employer from discriminating against someone on the basis that they have been pardoned for a criminal conviction: sections 5, 10(1), and 24(1)(b) of the Ontario Human Rights Code.
Next, in order to get a pardon, the RCMP had to conduct extensive (and often embarrassing) checks into a person’s background. This may have involved interviewing neighbours, family, friends, victims, employers, etc. Ouch! This was needed before the cabinet could approve a pardon recommendation from the National Parole Board.
Finally, there was a fingerprint barrier. Until 1986, if you wanted to apply for a pardon, you needed to go to the police station to get your fingerprints taken. This became a daunting task for those who had previous bad experiences with the justice system.
So no wonder people were hesitant to go through the pardon process! From 1970 to 1985, only 56,671 people had received a pardon even though there were likely more than 1,000,000 plus people eligible to apply!
National Parole Board Policy Changes
Major reform initially came, not in the form of legislative change, but by a policy change within the National Parole Board itself. In 1989, the National Parole Board made it easier for certain people (namely, those were were fined, placed on probation, or given an absolute or conditional discharge) to get pardons. Instead of lengthy and potentially embarrassing RCMP investigations, the RCMP would simply do computer checks of police records; if no evidence of new criminal activity existed, then the person was almost guaranteed of getting a pardon. Human rights laws were also reformed so that employer discrimination against a person based on having a pardon for a criminal conviction was prohibited. For the first 3 years after the policy was adopted, most of the 35,719 pardons were granted in respect of these minor offences. Wow, what a difference! The time to process those pardon applications sped up and the costs to the RCMP dropped.
Legislative Changes: National Parole Board
That wasn’t the end of the reforms. In 1992, after backlogs and long delays, major reforms to the Criminal Records Act were introduced. Instead of having a special committee of the federal cabinet grant a pardon upon the National Parole Board’s recommendation, the Act was amended to give the National Parole Board ITSELF the authority to grant or issue pardons. Instead of being a recommending body, the National Parole Board became the exclusive and independent deciding body. Section 2.1 of the Act currently says: “The Board has exclusive jurisdiction to grant or issue or refuse to grant or issue or to revoke a pardon”. The National Parole Board’s website says that it is “an independent administrative tribunal” and an impartial “agency within the Ministry of Public Safety Canada”. So this begs the question: under what legal authority does the Prime Minister or the Public Safety Minister have to influence its decisions? Well, the Chairperson of the National Parole Board is appointed by the government and must report to Parliament. But the Minister of Public Safety has no statutory authority to influence his or her (or the rest of the Board’s) decisions. Again, think: impartial and independent government agency. Just like the police, the courts, etc.
So what are the implications today? Well, when the government claims it “didn’t know”, “was not informed”, “did not consent”, etc. the National Parole Board’s decision to grant Graham James a pardon, I would ask: under what authority does the government have to require the National Parole Board to do so? That authority doesn’t exist (or at least I haven’t seen it). The National Parole Board became an independent and impartial government agency in 1992, after it stopped being a recommending body to the special committee of the federal cabinet.
More Legislative Changes: Absolute and Conditional Discharges
Now, at the same time as the National Parole Board gained its independence, other changes were made to the Criminal Records Act. Those changes created automatic removal provisions of absolute and conditions discharges from certain RCMP criminal record data banks. A discharge means that the person has been found guilty after a trial but is deemed not to have been convicted (so there is no punishment). Absolute discharge means that there are no conditions attached to the discharge; conditional discharge means there are conditions. Once the new laws kicked in, for an absolute discharge, the person must have satisfied the sentence and been conviction-free for one year. For a conditional discharge, the sentence must have been satisfied and the person conviction-free for three years. At the time of the new change, it was estimated by the National Parole Board that this change would affect about 4,000 people who apply for pardons on such convictions annually. These changes dramatically sped up the time to process a pardon application.
Legislative Amendments: Pardoned Sex Offenders
2000 was another big instance where the Criminal Records Act was amended. Before those changes took effect, an agency working with vulnerable people (e.g. children, the elderly, the disabled) could request applicants for volunteer or paid positions to undergo criminal records checks – but those checks would not reveal whether a person had been pardoned for a criminal record. Indeed, if they had been pardoned, nothing would show up at all in certain criminal record checks! So changes were introduced that would allow the RCMP to “flag” records of sex offenders who had obtained pardons. This allowed police to know and disclose whether a person had been pardoned for a sexual offence. Those amendments were designed to improve public safety.
Organizations dealing with vulnerable persons can now identify those who have received pardons for sexual offences. Today, a special “Vulnerable Sector Check” (the most comprehensive and invasive type of the various criminal record checks available) can be used by those in the vulnerable sector to screen applicants for paid or volunteer positions within their organization. A schedule of offences was included in the Act to pinpoint exactly what sexual offences were caught by the new rules.
Just so you know, in 1994, the National Screening System was created, using CPIC (“Canadian Police Information Centre“) to make criminal records available to vulnerable sector organizations. It helped them screen out child sexual abusers.
Other 2000 Amendments:
Other amendments to the Criminal Records Act which came into force in 2000 included:
- Requiring applicants whose pardon application had been refused must wait at least 1 year before reapplying: section 4.2(4); and
- Automatically revoking pardons for new convictions (summary, indictable or hybrid – which means that the offence could have been prosecuted as either summary or indictable): section 7.2(a);
Moving Forward
I have previously called for MINOR changes to the Criminal Records Act that would preclude individuals convicted of sexual offences from receiving pardons. So what would it take to change the current laws? While new policies might be adopted by the National Parole Board as they’ve done in the past, this doesn’t seem good enough. Indeed, it could be challenged as going beyond what they’re legislatively able to do under the Act.
So what else could or should be done? Minor legislative changes. Remember: the National Parole Board has the DISCRETION to GRANT pardons for INDICTABLE (i.e. serious) offences.
Looking at the list of sexual offences in the Criminal Records Act reveals that they are serious. But the law needs to be modified to give the National Parole Board REAL DISCRETION or PREVENT THEM FROM PARDONING those individuals altogether. I say “real discretion” because the National Parole Board doesn’t seem to have a clear authority to deny a person convicted of an indictable offence based on the nature of the offence. They can only look at the past 5 years and see if the person committed a crime and otherwise see if they were of “good conduct”. If there’s no blemish to that person’s name during that time frame, then it seems like the National Parole Board may not be able to do anything about it. Indeed, failure by the National Parole Board to grant a pardon on the basis that it is going beyond its jurisdiction (i.e. above and beyond what the Criminal Records Act says) could be challenged in court. The effect might be a finding that the National Parole Board overstepped its boundaries and that it MUST grant a pardon. So no discretion after all. That’s why the present laws must be tweaked.
How hard would this be? Well, Bill C-7 (formerly Bill C-69), which introduced amendments to the Criminal Records Act to permit flagging of individuals who had received pardons for sexual offences, received UNANIMOUS support from all parties in the House of Commons in May 1999 and went on to become law (receive Royal Assent) 10 months later (March 2000). So, while it may take a few months, it’s still worth doing…
If you want to know more about pardons, criminal records, and the whole nine yards, then just wait for my book “Criminal Records in Canada” to come out in a few months…
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