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Becoming a Global Leader on Pardon Wait Times

Mario D. Bellissimo

As published in Embassy, Canada’s foreign policy newsweekly.

www.embassymag.ca

Most pardon recipients now stay crime-free. Is Canada overreacting?

Federal Justice Minister Rob Nicholson tabled Bill C-10 on Sept. 20. The House Justice Committee is now studying the Safe Streets and Communities Act, after it passed second reading in the House on Sept. 28.

The bill rolls together nine smaller bills that were originally introduced by the Conservative government, but were never actually passed, in previous sessions of Parliament. Included is one provision that, if passed, is meant to change the Criminal Records Act.

Designed to prevent serious criminals from seeking a pardon, the proposed amendments include: replacing the term “pardon” with the term “record suspension;” requiring the Parole Board of Canada to submit an annual report that includes statistics on the number of applications for record suspensions and the number of those ordered; extending the ineligibility periods for applications for record suspensions from three to five years for less serious summary conviction offences, and from five to 10 years for more serious indictable offence; making certain people ineligible to apply for a record suspension, including those convicted of a sexual offence against a minor, or those convicted of more than three offences–each of which was prosecuted by indictment or is an offence subject to a maximum punishment of life in prison, and for each of which the person was sentenced to prison for two years or more.

Much of the clamour to change the law surrounded the pardon eligibility of Karla Homolka, who along with her former husband Paul Bernardo helped rape and kill several girls, and the discovery that sex offender Graham James had received a pardon. The two received media attention given the horrific nature of their crimes.

Before looking at the law’s viability, it is always interesting to compare eligibility periods with some of our international counterparts.

In the United Kingdom, the law respecting a “rehabilitated person” is called Rehabilitation of Offenders Act. The current eligibility periods for a “rehabilitated person” range from three to 10 years (see Section 5(2) of the Rehabilitation of Offenders Act).

But there are some very important changes in the works that would not only reduce the eligibility periods but actually make more people eligible to become rehabilitated persons.

In Canada, the focus is on the offence or conviction, whereas in the UK the focus seems to be on the length of the sentence. This is an interesting distinction. Canada is moving to hike up eligibility periods, while the UK is looking to lower them.

In Australia, regarding governance of rehabilitation and convictions in the Australian Capital Territory, the Spent Convictions Act 2000 deals with ways offenders may minimize the future effects of their criminal convictions. The required crime-free period ranges from five to 10 years.

In the United States, the president has the authority to grant pardons for federal offences. An applicant must satisfy a minimum waiting period of five years before he or she becomes eligible to apply for a presidential pardon. This waiting period begins to run on the date of the petitioner’s release from confinement (unlike Canada where the waiting periods begins from completion of sentence).

On the other hand, if the conviction resulted in a sentence that didn’t include any form of confinement, the waiting period begins on the sentencing date. At the state level, eligibility periods for various convictions range broadly from one year (New York for lower end convictions) to 10 years (Florida) to list but a few examples.

Canada would become one of the leaders in pardon or record suspension waiting times. Current processing times for pardons can run up to two years. So in addition to getting rid of various classes of people from eligibility entirely, those with a serious conviction may now have to wait up to 12-plus years post sentence including any prison time, fines, community service and probation.

Has Canada been awarding pardons too liberally? Has this led to widespread relapses into crime?

According to Canadian government statistics, in 2009-2010, 24,139 convicted persons applied for a pardon, with 98 per cent accepted. In the last five years: 111,910 applied. Since 1970, more than 400,000 Canadians have received pardons. Ninety-six percent of these are still in force, meaning that most recipients stay crime-free in the community.

Clearly, Canada should reserve the residual right to deny pardons or record suspensions where appropriate. But part of the equation is asking if we believe in second chances. Excluding the most serious offenders, some serious thought should be given to these proposed changes to ensure that the legislation is not an overreaction creating a new class of offenders who, in effect, receive a near-life “suspension” despite the passage of decades of crime free living.


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