Pardon me: a guide to federal clemency
It's going to get harder to get a pardon in Canada.
Legislation was already before Parliament concerning pardons but by using the case of notorious offender Karla Homolka — who is eligible to apply for a pardon on July 5 — the government got federal party agreement to split off part of the bill.
The next day, June 17, MPs passed the new bill, which says that a pardon can be denied if it would bring the justice system into disrepute. As well, ineligibility for someone convicted of an indictable offence would increase to 10 years from five.
In other words, Homolka will have to wait until 2015 to apply for a pardon if the bill quickly makes it through the Senate.
What is a pardon?
The National Parole Board says a regular pardon is simply "a recognition that you are of good conduct."
The purpose of a pardon is to give people who have proven themselves a kind of second chance, so that those convicted of a crime won't be tarred for the rest of their lives by the stigma of crimes committed years earlier.
Facts & figures
- Since the Criminal Records Act was enacted in 1970, more than 400,000 people have received a pardon.
- 14,748 people got a pardon in 2006-07, while 103 applicants were rejected.
- 39,628 pardons were doled out in 2008-09.
- 24,134 people were pardoned in 2009-10 and 425 were denied.
- 187 requests for the royal prerogative of mercy were granted between 1981 and 2009.
Source: National Parole Board
If a pardon is granted, information about that person's criminal record is taken out of the Canadian Police Information Centre computer system, and information about the conviction(s) cannot be given out without the approval of the federal solicitor general.
"A pardon is not meant to erase or excuse a criminal act," said Caroline Douglas, a National Parole Board spokesperson. "A pardon means that the record of the conviction is kept separate and apart from other criminal records."
People pardoned for sexual offences, however, are still flagged in the system and should show up in a check if they apply to work in positions of trust with children or other vulnerable people, Douglas said.
What types of reprieve are possible?
There are two extra-judicial channels.
By far the hardest is the royal prerogative of mercy, which derives from the traditional power of sovereigns to grant clemency to subjects who are being punished for breaking the law.
Applications for royal mercy in Canada are reviewed by the National Parole Board and then, if deemed worthy, forwarded to the federal solicitor general for consideration at cabinet.
The government can then grant a full pardon, revoking someone's conviction and sentence, or a conditional pardon that either allows a convict to leave prison before they'd normally be eligible for parole or which shields their criminal record from database checks.
Cabinet can also forward the case to the governor general for a remission or temporary suspension of a convict's sentence or for the lifting of a prohibition imposed by a court.
But these kinds of cases are extremely rare, and approved only in clear situations of substantial injustice or undue hardship. The National Parole Board received 21 requests for the royal prerogative of mercy in 2008-09; only four were granted.
Contrast that with regular pardons: 24,134 were granted in 2009-10, representing an application success rate of 98.3 per cent.
That could soon change, however. The Conservative government introduced legislation in May 2010 to drastically overhaul the pardon process, essentially eliminating pardons as such in favour of "criminal record suspensions," and making many offenders ineligible.
Who is eligible?
Most people convicted of a crime are, or will be, eligible for a pardon. Anyone convicted of an offence under a federal act or regulation can apply. But there are some conditions and limitations.
For one thing, people wanting a pardon must have completed their sentences, including parole or statutory release; satisfied all their probation orders; and paid all fines, costs and compensation orders.
There's also a waiting period. Those convicted of summary conviction offences must wait three years before applying for a pardon. For those convicted of more serious indictable offences, the wait is five years.
There are limitations. If someone is subsequently convicted of another offence, during sentencing the prosecution can still present the court with evidence of the first conviction.
And the pardon may be revoked following conviction for a summary offence or even if the National Parole Board "finds that the person is no longer of good conduct."
Another limitation applies to prohibitions on driving or owning firearms. Pardons do not cancel these orders.
Getting a pardon does not mean foreign authorities will remove information about your criminal record from their system.
RCMP statistics show that nearly four million Canadians have a criminal record. The vast majority of these people are eligible for a federal pardon once their conditions are met. But only about 10 per cent of Canadians with criminal records have applied for a pardon.
Are there any 'automatic' pardons?
Yes. Anyone found guilty of an offence after July 24, 1992, and given an absolute discharge will have their conviction removed from the police computer system one year after the court ruling. No application is necessary.
For those found guilty after July 24, 1992, and given a conditional discharge, the conviction information is automatically expunged after three years.
Those given absolute or conditional discharges before the 1992 cutoff date must write to the RCMP to have the conviction information purged. The link is at the right side of this page.
People sentenced in youth court for a crime do not need to apply for a pardon. Their records are automatically destroyed. For those convicted in both adult and youth courts, a pardon application would be necessary.
A criminal record is enough to prevent someone from being hired in a variety of jobs that require background checks. Many jobs in banking, health care, teaching, security and government require a "clean" criminal record. And it isn't just paid work. Volunteer positions frequently require a record check, too.
Even insurance companies have the right to ask if you have been convicted of a criminal offence "for which a pardon has not been received."
Many people who have been granted pardons say they have more peace of mind because a single indiscretion cannot come back to haunt them years later.
How do you apply?
The National Parole Board is the body that decides whether to grant pardons. It has a pardon application guide on its website (the link is at the right).
Applicants need to send a variety of documents: a copy of one's criminal record, information from the court that issued the sentence, a local police records check, as well as the pardon application itself.
Depending on one's situation, further court documents, citizenship information or military records may be required.
There's also a $50 processing fee for the application.
Some private companies can also carry out the application process for you. But they often charge $400 or more.
History and controversy
The current pardon process stems from the 1970 Criminal Records Act, which allowed for a more systematic granting of pardons to convicts who demonstrated "behaviour that is consistent with and demonstrates a law-abiding lifestyle."
The pardon application process was streamlined in 1992 and the number of pardons granted and issued rose dramatically.
More than 400,000 people have received a pardon since 1970, according to the National Parole Board. In excess of a quarter of those, or 111,769 pardons, were given in the last five years.
The Conservative government further tweaked the process in 2006 after Toronto teacher Clark Noble, who had pleaded guilty to sexually assaulting a student, secured a pardon.
Stockwell Day, then the minister of public safety, asked the National Parole Board to review the process for granting pardons to violent or sexual offenders.
Under the new rules, two National Parole Board members, up from the usual one, review pardon applications from people convicted of indictable sex offences, and the review now includes "rigorous" consultations with police.
The Graham James pardon
Three months after the Noble controversy, former junior hockey coach Graham James was pardoned for his sex crimes against young players.
It would be another three years before James' pardon became public, causing another public outcry.
Former NHLer Sheldon Kennedy, one of the players James was convicted of molesting, told The Canadian Press, "Graham's conviction brought with it a lot of change and his pardon and it coming to light is only going to bring more change."
The next month, Toews announced legislation to massively remake the pardon system.
2010 proposed changes
The Tories' proposed overhaul would essentially eliminate pardons and replace them with more narrowly defined criminal record suspensions.
The changes would make it impossible for those convicted of sex offences against minors to have their criminal records suspended, except in a case where the applicant can demonstrate that he or she was "close in age" to the victim, and that the offence did not involve a position of trust or authority, bodily harm, or threat of violence or intimidation.
The legislation would also prevent those convicted of more than three indictable offences from getting a record suspension.
Toews further said the period of ineligibility for a record suspension would increase, to five years from the current three years for summary offences, and to 10 years from five years for indictable offences.
Reintegration more difficult: critics
At a news conference in Winnipeg on June 10, social welfare agencies argued that the changes would make society less safe by hampering an offender's ability to return to society.
"Someone has to point out that it does not serve public safety to make it harder for people to reintegrate after a prison sentence," said John Hutton, Manitoba executive director of the John Howard Society. "It's costly, because they will have to live on public assistance, and it's counterproductive, because we should want them to find a job and go straight," he said.
Hutton noted that of the 400,000 pardons granted in the last 40 years, only 4,000 have been revoked after an offender committed another crime.
The sections of the pardons bill not already passed remain in committee as Bill C-23B to be studied in the fall.