Oppose Proposed Changes to Canadian Pardons

What will happen if Bill C-23B passes?

Mr. Towes has stated that the proposed reforms outlined in Bill C-23, Eliminating Pardons for Serious Crimes Act, will ensure that the National Parole Board always puts the public's safety first.” Mr. Towes and Mr. Harper, however, do nothing to explain how the proposed changes increase community safety. In fact, the five weeks between the time when the furor erupted and the when the new legislation was proposed, provided the government no time to do research, let alone to accumulate any evidentiary data. If they had they would have come to the conclusion that the evidence, derived from decades of research, proves that ‘getting tough on crime’ sentencing options stem from emotional responses to serious societal problems and crime and that such "get tough” laws on crime have not always proven to be effective and, in some cases, have made managing crime worse (Freeman-Longo & Blanchard 1998). This legislation incorporates the following reforms:

  1. The elimination of pardons, to be replaced by more restrictive and narrowly worded "record suspensions"
  2. Those convicted of sexual offences against minors will be permanently ineligible for a record suspension. Instead of basing the pardon ineligibility on an assessment of the chances that the person will reoffend that decision will be based solely on the person's offense.
  3. Those convicted of three or more indictable offences – the more serious offences such as aggravated assaults -- will also be permanently ineligible for a record suspension
  4. The periods of ineligibility for record suspension after a sentence has been served has been increased (with the passing of Bill C23A). For summary conviction offences, it will be a five-year wait, while more serious offences – indictable offences – the wait will be 10 years

Yes, it makes the government look good (“tough on crime”) by extending the waiting period.  But why else should Canadians agree to it?  Does the government know something that we don’t? Are there reports or statistics showing that way more time is needed for rehabilitation? If, based on the current waiting periods, over 96% of those who have received pardons (approximately 400,000 since the pardon system started) have kept them, that what problem are we trying to fix by making people wait longer?  In fact, unless there is proof to the contrary, making people wait longer actually prevents them from living fuller lives earlier.  Remember: there are approximately 3.4-million records in the RCMP’s Identification data bank and many of them are eligible for a pardon.  Not having a pardon means that they expose themselves to discrimination AFTER they’ve done their sentence. 

                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.

Retrieved from: http://www.canadianlawyermag.com/Pardon-Me.html

  1. The onus will be moved to the applicant to show that a record suspension will help sustain his or her rehabilitation

This proposed section makes it extremely difficult for anyone convicted of an offence of a sexual nature to be eligible for a record suspension. The person has the BURDEN of proving these 3 conditions to the Board’s satisfaction.

The proposed reforms will impact negatively in the following areas:

Restricts the opportunity for former offenders to attain employment, insurance and to travel abroad

Few public officials have acknowledged their responsibility to protect the well-being and fundamental rights of all citizens—including those who have been convicted of crimes. In a democratic society those rights must be addressed. At this juncture the government must understand the ramifications of prohibiting a former offender from attaining a pardon. One very important implication is that, if an individual has been convicted of an offence in Canada and does not have a pardon, it will seriously impair that person’s ability to attain employment.

The negative impact of criminal records on access to employment has been extensively documented by scholars (Louks, et al., 1998; Fletcher, 2001; Grier and Thomas, 2001; Thomas, 2001; Lam and Hartcourt, 2003). These negative impacts range from legal prohibitions to work in some fields, to social discrimination by employers. Ex-offenders who have a criminal record are not allowed to work in a number of specific domains, such as some government positions, or to apply for specific work permits (Landreville, 2004b). Ex-offenders seeking employment are forced to not declare that they have a criminal record, to not apply for some positions for which they would otherwise be capable, or to apply for certain employments for which they are overqualified in order to obtain employment (Comité Aviseur pour la Clientèle Judiciarisée Adulte d’Emploi-Québec, 2004; Landreville, 2004b).

Not only does a criminal record have consequences for ex-offenders seeking employment, but it also has consequences for ex-offenders purchasing insurance coverage or seeking indemnification following a claim. Bernheim explored several judicial cases in which Québec courts have confirmed that, in some situations, insurers can refuse insurance applications or insurance claims from ex-offenders who do not hold pardons issued by the National Parole Board (Bernheim, 2004a, 2004b, Robertson c. Co. d’assurances Jevco, 2001 IIJCan 18766 (QC C.Q.)). This sort of policy can be applied to ex-offenders’ cohabitant partners or cohabitant parents as well. Insurance companies have adopted the principle that “living with a person that has a criminal record can be understood as having a criminal record.”

Bernheim reported that the Québec Court, in a decision rendered in 2001, has made a clear statement about this issue: “the right to have insurance is not a right by itself.” [1] Taking into consideration that current Canadian society is oriented towards a risk management model, and that 25 percent of the Canadian population aged between 15 to 69 years old has a criminal record, the implications of such a decision are quite significant.

A criminal record can also be an obstacle to international travel. Criminal information has become digitized and, consequently, can flow freely within society. In addition, international cooperation in the field of criminal justice has increased considerably. The implications of such developments are enormous. For instance, let’s imagine a situation in which an individual is convicted of an offence in Canada. During the time in which this person was convicted, the criminal record information was shared with other countries, for instance, Spain. In addition, since Spain is a contracting party to the Schengen Information System, this information will be in a database system accessible to all countries that are contracting parties to the Schengen Agreement (currently 15 contracting parties and two members under cooperation agreements). Moreover, since each of these countries has its own national criminal jurisdiction, they are not required to recognize the legal effects of a pardon granted in Canada.

Consequently, this person faces a problem. This individual’s criminal record information will have spread through all contracting parties to the Schengen Information System. If this person decides to apply for a position to work in Germany or France, or asks for a visa to travel to Belgium, Norway, or Iceland — all these countries will have access to records in which this person appears as a criminal offender.

This situation draws attention to an important matter: what is the purpose of a criminal sanction? Section 718 of the Canadian Criminal Code notes that “[t]he fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: [...] (d) to assist in rehabilitating offenders.” If one of the purposes of a criminal sanction is the rehabilitation of offenders, and if the evaluation of a successful social reintegration of ex-offenders should take into consideration their employment status, we need to assure that ex-offenders have access to the labor market. Otherwise, the discourse of rehabilitation will contain a major contradiction.

 

POTENTIALLY INCREASES RECIDIVISM

 According to Federoff and Moran (1997) Sex offenders as a group tends to have difficulty establishing lasting relationships, and following conviction, have trouble obtaining stable employment. As a result, they have fewer ties to their community and tend to be transient. (p. 272). The majority of sex offender treatment specialists identify similar problems for sex offender clients, including (but not limited to) poor anger management skills, fear, lack of trust, low self-esteem, feelings of rejection, inadequate social skills, lack of empathy, isolation from others, and poor communication skills. These skills need to be improved, and that happens when sex offenders have good community support systems and close ties in the community.

We cannot dismiss the possibility that some percentage of offenders will reoffend because of the stress and pressure imposed by a hostile, rejectionist community that has branded the offender as a pariah. Thus we may be unwittingly increasing the likelihood that some sex offenders reoffend. There is ample clinical evidence to suggest that maintenance in the community is the most difficult part of reducing re-offense risk. Most sex offenders, even those that are released from treatment programs, are returned to the community with few, if any, support systems and expected "to swim." Satisfactory reintegration and adjustment often poses the greatest challenge, even for the most well-intentioned ex-offender. (Prentky, 1996, p. 295)

 Bill C-23 will make it very difficult for individuals to gain employment, will increase the stigma and oppression felt by the offender and reaffirm to society the untruth that all former offenders are a continuing risk to the community. By far the greatest potential negative impact of the new legislation will be to undermine treatment for sex offenders and thereby increase recidivism rates:

“..Myths about sex offenders and victims, inflated recidivism rates, claims that sex offender treatment is ineffective and highly publicized cases involving predatory offenders fuel negative public sentiment and exacerbate concerns by policymakers and the public alike about the return of offenders to local communities.. Furthermore, the proliferation of legislation that specifically targets the sexual offender population- including longer minimum mandatory sentences for certain sex crimes, expanded registration..Policies and that restrict employment or travel- can inadvertently but significantly hamper reintegration efforts.

In terms of rehabilitation, the economic and social marginalization of sex offenders resulting from poorly developed policies can create psychosocial stressors that may increase dynamic risk for re-offense. Negative moods, instability, and lack of social support have been associated with sexual reoffending (Hanson & Harris, 1998;2001). Defiance theory suggests that harsh sanctions perceived as unfair by criminal offenders can set up a counter-therapeutic reaction when offenders lament the injustice of discrimination and rebel against society’s iniquitous treatment of them (Sherman, 1993).  In fact, conformity to the norms of society and desistance from crime is enhanced when offenders are given opportunities for community integration, civic contribution, and investment in pro-social roles such as employment, property ownership, and parenting (Kruttschnitt, Uggen, & Shelton, 2000; Rowe, Kloos, Chinman, Davidson, & Cross, 2001; Sherman, 1993; Uggen, Manza, & Behrens, 2004; Uggen, Manza, & Thompson, 2006). Ostracizing sex offenders may divert their energies and attention from the real task of learning therapeutic skills and positive cognitions to prevent future abuse, and leave them overly focused on their anger at society and sense of unfairness.

The extent to which sex offenders accept and internalize the misconceptions identified here can have an impact on the sex offender’s self esteem, locus of control, and motivation for self improvement. The offender’s self esteem is fragile and vulnerable due to feelings of shame and humiliation and public perceptions can lead to a self-fulfilling prophecy (Anechiarico, 1998).

Sex offenders may be more likely to re-offend if they are forced away from the community after leaving prison according to award-winning research by a PhD student at the University of Canterbury. Gwenda Willis,  her study of how pre-release planning affects rates of recidivism in the five years after sex offenders rejoin the community. Her research is the first published study to show a link between quality of planning for community reintegration and sex offender recidivism. It contributes to a growing body of knowledge based on research sponsored by the Department of Corrections, together with overseas studies, that highlight the importance of pre-release planning and offender reintegration processes. She studied 39 men who had re-offended since their release and 42 who had not, measuring the quality of release plans for both groups. The groups were matched in terms of time since release and risk for reoffending. She measured planning for accommodation, employment, social support and setting pro-social goals related to their values.

Results showed that, overall, sex offenders with good planning had a six per cent re-offending rate, compared to 17 per cent for those with poor planning. “A lot of research in this field has concentrated on changing the attitudes or mind set of offenders but few people have realized the importance of the environment they are being released into,” says Gwenda. “My work shows that more careful planning, which is a relatively inexpensive thing to do, can make a real difference providing communities co-operate and help sex offenders make the transition.” To function successfully in the community, the offender has to feel a part of the community like anyone else. . Destroying the offender’s chance at a pardon compromises the offender’s ability to do so in a safe and healthy way. Retrieved from: http://www.frst.govt.nz/news/Sex-offenders-need-community-support

 

 DIVERGENT WITH CURRENT LEGISLATION: DOMESTIC AND INTERNATIONAL

The evidence is overwhelming that the proposed amendments cause great harm to the people subject to them.  Not having a pardon means that people with convictions remain exposed to discrimination after they’ve done their sentence, increases emotional stressors, will likely increase recidivism. On the other hand, proponents of these laws are not able to point to convincing evidence of public safety gains from them. In the legal sense, if the state, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual's rights will have been limited for no reason. The effect of over-breadth is that in some applications the law is arbitrary or disproportionate.

Bill C-23 suffers from over-breadth and thus the deprivation of liberty it entails is not in accordance with the principles of fundamental justice.  Prohibiting access to a pardon to all persons convicted of a sexual offence against a minor, or those persons which have been convicted of three indictable offences, without regard to whether they constitute a danger to children or society is thus overly broad in respect to the people to whom it applies. The over-breadth in scope is matched by over-breadth in duration: the length of time during which a former offender will be prohibited access to a pardon is set arbitrarily, based on the nature of the crime of conviction and not on any assessment of the likelihood that the former offender continues to pose a safety threat. In fact, former sex offenders are less and less likely to reoffend the longer they live offense-free. It is also overly broad in that exclusion from a pardon applies for life, with no possibility of review.  Without a review a person who has ceased to be a danger to children or society (or who indeed never was a danger to children or society) continues to be subject to the prohibition. 

Section 11(d) of the Charter of Rights and Freedoms is the right to be presumed innocent until proven guilty. This section has been infringed because the proposed legislation assumes recidivism and does nothing to provide the means to prove it or prevent it.

 Section 11(h) of the Charter of Rights and Freedoms, the right against double jeopardy, has been violated. Exclusion from a pardon is based on having been convicted of one of the enumerated offences. Not having a pardon means that people with convictions remain exposed to discrimination after they’ve done their sentence.

Finally, former offenders will be subject to cruel and unusual treatment or punishment contrary to section 12 of the Charter of Rights and Freedoms. There is no evidence to suggest that the mandatory lifetime exclusion for some convicted sex offenders will make society any safer. The proposed legislation then will have an effect "grossly disproportionate to what would have been appropriate". The lifetime prohibition of a pardon, and its detrimental effect on an individual’s ability to gain employment, and thus on that individual’s ability to successfully reintegrate into society, is neither a minor nor a justifiable restraint of the affected persons' liberty.

It is important to note that some Canadian provinces have expanded the grounds of discriminatory practices to include ex-offenders who have not been granted a pardon. In Quebec [2], British Columbia [3], and Ontario [4], it is a discriminatory practice to draw a distinction between employees or prospective employees who do not have a criminal record and employees or prospective employees who have a criminal record even though a pardon was not granted. However, those codes which contain this prohibition do make exceptions - where the criminal record relates directly to the nature of the employment, such discrimination may be justifiable. If a person has criminal record involving sexual offences, for example, it may be justifiable to preclude such a person from working in a position of trust vis-à-vis children and youth, such as in a teaching or coaching position. This sort of exception is called a BFOR - bona fide occupational requirement. A pardon does not interfere with this requirement because the criminal records of pardoned sex offenders seeking positions of trust in relation to vulnerable persons are available for screening purposes.

The Canadian Civil Liberties Association is also opposed to proposed pardon reforms:

May 14th, 2010

The CCLA is concerned about newly proposed legislation that would significantly curtail eligibility for pardons in Canada.  While the CCLA welcomes attempts to clarify the purpose and effect of a pardon by changing to a regime labeled “record suspension” rather than “pardon”, the CCLA has serious concerns about other proposed amendments which are contained in Bill C-23.  The legislation would exclude certain offenders from eligibility for a pardon and would require others to wait even longer for eligibility.  Offenders convicted of indictable offences, would not be able to seek a pardon until ten years after their sentence comes to an end.  The goal of the pardon system is to allow convicted offenders who have served out their sentences and have not re-offended, to move on with their lives and become re-integrated into society.  The proposed changes would severely undermine this goal and do little to improve public safety.  The government’s own statistics indicate that the vast majority of pardoned offenders do not re-offend.  The CCLA will oppose those reforms that would undermine the goals of rehabilitation and re-integration.

Retrieved from: http://ccla.org/?p=5504

The CCLA has written to Minister Toews to suggest changes to the government’s efforts to significantly alter Canada’s pardon system. Bill C-23, Eliminating Pardons for Serious Crimes Act, was introduced into the House of Commons on May 11, 2010. The proposed scheme would significantly delay a person’s ability to apply for a pardon and would render one category of offenders (i.e. those convicted of sexual offences against children) ineligible to apply. The CCLA is opposed to the extension of delays and the elimination of the possibility of pardon for one type of offender, as it would significantly undermine offenders’ efforts at rehabilitation and re-integration into society. There is also good reason to doubt that the proposed reforms would do anything to render the public safer. The National Parole Board reports that, since 1970, 96% of the pardons granted remain in force, indicating that the persons receiving the pardons did not re-offend.

While the CCLA intends to oppose attempts to delay or deny pardon eligibility, it welcomes aspects of the proposed legislation that will provide the public with a better understanding of the purpose and scope of a pardon. In particular, the Bill proposes changing the term from “pardon” to “record suspension”, which is a more accurate reflection of what a pardon actually does. Retrieved from: http://ccla.org/?page_id=5518

Recent developments on the international stage will likely have direct implications with the Canadian government’s attempt to introduce pardon reforms. Particularly, in April 2010, the Supreme Court of the United Kingdom handed down a landmark human rights ruling which determined that former sex offenders should be allowed to apply to have their names deleted from the sex offenders register. It made no sense; it was determined, to keep someone’s name on the offender registry if that someone has demonstrated that he or she is unlikely to repeat his or her offence. Lord Phillips, the Supreme Court president, said: "It is obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified." The judges stated there was no evidence to show it was impossible to identify which sex offenders had reformed. Home Office research submitted during the case showed that 75% of sex offenders who were monitored over a 21-year period were not reconvicted of any offence.

The Supreme Court determined that their sex offender legislation was incompatible with article 8 of the European Convention on Human Rights because "they do not contain any mechanism for the review of the justification for continuing the requirements in individual cases".  Article 8 is based upon Article 12 of the UN's Universal Declaration of Human Rights which reads:

“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

Supreme Court president Lord Phillips explained the judges’ thinking in the simplest of terms. The protection of potential victims of sex crimes is a priority, he said, but once someone can demonstrate that they no longer pose any significant risk of committing a further sexual offence, then there is no good reason to interfere with their right to respect for private and family life. Curtailing such criminal behaviour is the important thing, not imposing draconian – and pointless – penalties on the offenders.

The UN's universal Declaration of Human Rights, which was ratified by Canada in 1948, is the driving force behind many human rights-based legislation including the Canadian Charter of Rights and Freedoms. Of course, none of these explicit or implicit privacy rights are absolute. For example, Article 8 of the European Convention prohibits interference by a public authority with the exercise of the right of privacy. However, that right may be interfered with in accordance with the law and if the interference is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others. 

This decision then may set an interesting precedent  in regard to the Canadian government’s lifetime inclusion of former sex offenders on the registry and lifetime ineligibility of some of those offenders for a pardon. The Canadian government intends that former offenders convicted of offences against minors or those who have been convicted of three or more indictable offences would be permanently ineligible for a record suspension. Also, current Canadian legislation allows for offender to be listed on the sex offender registry for life and to be subject to a prohibition order that prohibits them, for life, from going to places such as schools, community centers or public parks (regardless of the fact that their offences may never occurred in any of those areas and that, once their probation periods are over they can associate with anyone, of any age, anywhere, but continue to be, many years later, unable to go to a public park with their families). Such lifetime interdictions must not be introduced and those which exist must be repealed. If not, they must be subject to annual review. The burden of proof is on the government of Canada to prove that such interference with the liberty of its citizens is necessary for public safety- a position which will be very difficult for the Canadian government to establish.

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