Friday, August 27, 2010

Clemency in the Canadian Context

Lesley Atkinson is the Communications Officer at Canadian Pardon Service, an organization that assists Canadians with criminal records in obtaining pardons, U.S. Entry Waivers, and File Destruction Requests. Her degree in Psychology from the University of Guelph piqued her interest in criminology, and from there she began working at Canadian Pardon Service. In addition to other duties, she is responsible for keeping the organization and clients up to date on any important legislative changes that may affect them. In this post, Atkinson will discuss a topic with which she has a good deal of experience and expertise; Canadian criminal records, pardons, and the Criminal Records Act. There are many differences in Canadian criminal records and pardons (when they are compared to the United States) so this piece will provide a general outline of the criminal record and pardon system in Canada, as well as some recent legislative developments.

Criminal Records in Canada

Over 3 million Canadian criminal records are held at the Canadian Police Information Centre (CPIC), a database that is maintained by the Royal Canadian Mounted Police (RCMP). A criminal record is held in the database until the individual reaches at least 80, and in some cases, 100 years of age. The CPIC database is available to all law enforcement agencies in Canada as well as the FBI, U.S. Customs, and Interpol. One difference between American and Canadian criminal records is that in Canada they are only available to law enforcement agencies and cannot be viewed by the public because of privacy laws, whereas they are public knowledge in the United States. However, by conducting a criminal record search it is possible for the public to verify the existence of a Canadian criminal record, although the specific details cannot be viewed. Because of increasing security and employer liability concerns, more criminal record searches are conducted every day. As a result, many Canadians with criminal records encounter difficulty getting a job, travelling, volunteering, adopting, and even applying for citizenship. However, it is possible for a criminal record to be ‘permanently removed and sealed’ from the CPIC database, by obtaining a pardon.

Pardons in Canada

A pardon is granted by the National Parole Board of Canada (NPB), and ensures that a criminal record will be removed from public databases and sealed permanently in a separate database that is not accessible to any law enforcement. An individual becomes eligible to apply or a pardon 3, 5 or 10 years after they have completed the terms of their sentencing (including incarceration, parole, and the full repayment of any fines). To get a pardon these individuals must complete an application from the NPB in addition to providing evidence that a pardon would assist in their rehabilitation into law abiding society. They must also demonstrate that they are of ‘good conduct’, meaning they have remained trouble free since completing their sentence. Completing a pardon application requires contacting the RCMP, local police and courts, and in some cases Immigration Canada and the Canadian Forces; this can take over a year to accomplish. Once the application has been submitted to the NPB it will take an additional 3-12 months to process it. If an individual is granted a pardon, their personal information will be completely removed from federal databases within 3 months of the pardon being granted.

Exceptions to Pardons

Even after a criminal record has been pardoned, it is still possible for the pardoned criminal record to be made available again to law enforcement in certain situations, but first permission must be granted by the Minister for Public Safety. These situations include:

• Instances where direct evidence is found linking the individual to another crime scene
• Circumstances when law enforcement requires the information in order to identify an individual who is deceased or amnesiac
• All individuals convicted of a sexual offence will be ‘red flagged’ and the existence of a criminal record will be verified by the RCMP if a vulnerable sector search is conducted
• There is an interesting court case in which a Quebec Judge was dismissed from his position because of a criminal record for which he had previously been pardoned. The case was taken to the Superior Court of Justice (the highest court in Canada), where he lost his appeal.

Revocation of a Pardon

More than 400 000 pardons have been granted to Canadians with criminal records since 1970. 96% of those pardons are still in effect, illustrating that the recidivism rate for pardoned individuals is very low. This indicates that the vast majority of those granted a pardon go on to be law abiding citizens that have successfully rehabilitated into society. However, there are still situations where a pardon will be revoked by the NPB:

• If the person whom was granted the pardon is subsequently convicted of a summary offence
• On evidence that the person whom was granted the pardon is no longer of good conduct (for example, if an arrest and charges are subsequently dropped, the pardon is still at risk of being revoked)
• On evidence that the person who was granted the pardon knowingly made false or deceptive statements on their pardon application.

New Changes to Pardon Legislation

Recently citizens in Canada became aware that sex offender Graham James (who was convicted of molesting children on a hockey team, including future NHL star Sheldon Kennedy) had been granted a pardon. The outrage reached a fever pitch when the public realized that Karla Homolka, one of the most notorious serial killers in Canadian history, would be eligible for a pardon in July 2010. In response the Canadian government quickly revised the Criminal Records Act, creating new laws that will prevent Karla Homolka from ever getting a pardon. The new legislation also made it much more difficult for any individual with serious personal injury convictions to ever get a pardon. The new laws require that individuals with the following convictions must wait at least 10 years after completing the terms of their sentencing to become eligible to apply for a pardon (whereas previously they only had to wait 5 years):

• Individuals convicted for manslaughter for which 2 or more year’s imprisonment was sentenced
• A Schedule 1 summary or indictable conviction (a collection of sexual offences against minors)
• A serious service offence under the National Defence Act


In addition to the new timelines, these individuals must also provide measurable evidence in their application that a pardon would truly assist in their rehabilitation. Finally, the National Parole Board will have the power to refuse to grant a pardon if doing so would damage the reputation of justice in Canada. It is this clause that will allow the NPB to forever stop Karla Homolka from getting a pardon.

Future Possible Changes to Pardon Legislation

The Canadian government will continue the process of revamping the Criminal Records Act in the fall of 2010 with Bill C-23B, The Eliminating Pardons for Serious Crimes Act. In this act much more severe measures surrounding pardons will be discussed, including:

• Replacing the term ‘pardon’ with ‘record suspension’ in order to indicate that the individual has not actually been fully forgiven for their convictions, and that the pardon/record suspension can be easily revoked if reason is given to do so
• Those with convictions for Schedule 1 offences, more than 3 indictable offences, or serious service offences under the National Defence Act will be permanently ineligible to apply for a pardon
• The NPB will also be given the power to look into the nature, gravity, duration, and circumstances surrounding the above offences and can base their decision on these factors
• The NPB will be required to submit an annual report to the Minister of Justice, as well as the federal parliament

These laws are much more severe, and understandably there is a great deal of controversy surrounding them. Bill C-23B is currently in the Committee for Public Safety and National Security, where it will remain until it receives its third reading in parliament. For more information on Canadian criminal records, pardons, and the new legislation, please visit Pardons.ca.

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