Rubber stamping pardons does not serve the public interest
In the Canadian criminal justice system, offenders' stories do not end with conviction, sentencing, time served or even parole. Three or five years later, depending on whether they committed summary or indictable offences, offenders can apply for a pardon under the Criminal Records Act.
Whether you're a shoplifter or a sex offender, the process is the same: get fingerprinted, obtain copies of your police record, pay a $50 fee and complete a two-page application form which is sent to the National Parole Board. Assuming you've stayed out of trouble since your conviction, odds are more than good that you'll get your pardon. In fact, in 2006-2007, 14,748 applications were granted and only 103 were refused.
But in light of the pardon of Graham James, who served three and a half years in jail for abusing young hockey players whom he coached, many Canadians believe forgiveness has gone too far. The outrage boiled over on radio talk shows and posts to online social media. The Prime Minister himself called the Minister of Public Security over a holiday weekend to deal with the issue.
Even though, unlike other pardoned offenders, sex offenders are still tracked in the National Canadian Police Information Centre Database and the National Sex Offender Registry, the case raises several concerns, most notably the safety of children. Parents want an iron-clad guarantee that such pardons will not put their kids at risk. They seek reassurance that prospective employers would have access to information about sex offenders' crimes, so that predators like Mr. James never again end up in positions of authority and trust with young people.
Beyond that concern lies disgust with the idea that any criminal who committed such heinous acts should ever be pardoned, no matter how law-abiding his subsequent conduct. The reality is that society does not view all crimes equally. The stigma attached to offences against property, for example, is less than that reserved for crimes against persons. And the anger at a crime against an able-bodied adult pales beside that occasioned by the violation of a defenceless child.
By not differentiating pardon applicants by the type of offence they have committed, the Criminal Records Act clearly falls out of step with public sentiment. That sentiment sustains society's faith in the justice system, as a deterrent to both acts of crime and acts of vengeance. If the people lose faith in the system, the very rule of law is jeopardized.
The government should reform the law to create a system which does not simply distinguish between summary and indictable offences, but which treats serious offences against persons -- such as murder, aggravated assault and sexual assault -- differently from other crimes. This could involve waiting periods longer than the current five years, assessment by more than one parole board member (currently only sexual offences have a requirement for a two-member review), or even a prohibition on certain types of offences ever being pardoned.
Rubber stamping pardons does not serve the public interest. While reintegrating reformed offenders into the workforce and society at large is a laudable goal, the government needs to balance the rights of offenders, victims and the public. The James case serves as yet another potent reminder that the current balance needs adjustment.
Canadians have been understandably outraged by the news that a sex offender who preyed on children in his control as a hockey coach was quietly pardoned three years ago.
So it's no surprise that the Harper government, which has tried to position itself as tough on crime, says it is considering a new law to make it harder or impossible for sex offenders to obtain a pardon.
While on first blush, that may seem the only reasonable approach -- no one wants to see a sex offender freed from his past in a way that allows him to reoffend -- this issue is more complicated than it first appears.
Graham James was sentenced to 3½ years in prison in 1997 after pleading guilty to sexually assaulting hockey player Sheldon Kennedy and another player more than 300 times over 10 years. In 2007, he was pardoned.
Pardons are granted by the parole board as part of the process of integrating offenders back into society. Offenders can apply for a pardon after three or five years, depending on the seriousness of their crimes.
When a pardon is granted, the applicant's criminal record is no longer visible in a routine record check. In the case of a sexual offender, however, a red flag will come up that can allow records to be viewed if the search is with respect to a job that will bring the person into contact with children or other vulnerable people.
A pardon makes it easier for a former offender to hide his or her criminal past. It also makes it easier to obtain housing and get a job, both of which are necessary for rehabilitation.
The evidence is that the vast majority of offenders who obtain a pardon are able to move on from their criminal past. Of the more than 400,000 offenders who have been pardoned since 1970, just four per cent have had their pardons revoked because of a subsequent offence.
Of the more than 4,000 sex offenders who were pardoned in a 28-year period, less than one per cent have had their pardons revoked.
One of the big unanswered questions in our justice system and society is how to deal with sex offenders who have served their time. Some are at a high risk of reoffending. Many refuse treatment and there are questions about whether any are ever totally "cured."
But unless we are prepared to lock up all sex offenders forever, at some point they will be back among us, so we have a strong interest in helping them get settled into a stable life.
So if Public Safety Minister Vic Toews is really interested in making our communities safer, in reducing the risk that a child or other vulnerable person will be sexually assaulted by a previously convicted sex offender, the real question is whether a pardon is a useful tool in achieving that end.
The evidence seems to be that it is, and that to remove the possibility of a pardon for sex offenders will only make it less likely they can again be productive members of society instead of a threat.
Sadly, some of the changes brought in as part of the Conservatives' so-called tough on crime agenda, such as mandatory minimum sentences, have shown that the government is more interested in pandering to the public fears than in adopting measures that will make our communities safer.
The minister should consider the evidence on this issue carefully and take initiatives that will enhance public safety, not reduce it.
Completely agree. We need to do what is in the best interests for society and sex offenders will be released someday and need to be reintegrated properly, back into society.
There is an old legal saying that hard cases make bad law. Nowhere is that saying proven better than in the recent pardon of Graham James, a convicted child molester.
How is it that such a criminal received a pardon? Surely the system is skewed towards criminals and it is time to clamp down on pardons?
Actually, the system is not skewed and pardons are a valuable tool in preventing crime and rehabilitating criminals.
It is important to be clear what a pardon actually does. The term "pardon" suggests a wiping clean -- almost like a religious remission of sin -- in fact, the reality is quite different.
A pardon does not remove a criminal record. The record remains and any entry on a sex offender registry is unaffected. Should someone with a pardon commit another crime, the pardon can be revoked. Foreign travel is not made easier -- United States border authorities pay little attention to a pardon. The only thing a pardon does is allow someone legitimately to say they do not have a criminal conviction.
Being able to say "I have no criminal convictions" is important. Many jobs require a clean record and holding down a job is a significant step toward full rehabilitation.
Obtaining a pardon for a serious offence, while largely administrative, requires someone convicted to have stayed out of the criminal system for five full years following the completion of their sentence. The person seeking a pardon must show five years of "good conduct," which the Criminal Records Act defines as "behaviour that is consistent with and demonstrates a law-abiding lifestyle."
Five years is a long time, and, broadly put, if someone stays out of trouble for that long, they are very likely going to stay out of the system.
Very few pardons are revoked because of new offences.
Since 1970, more than 400,000 Canadians have received pardons. Of those, less than one in 20 has had a pardon revoked, indicating that the vast majority remain crime-free in the community. The pardon system works.
A pardon allows someone who has, in fact, turned his or her life around to get past their earlier offence and become a productive citizen. The prospect of a pardon is an incentive to persons convicted of a crime to stay out of trouble and is a useful tool for rehabilitation.
And rehabilitation is important. Perpetual incarceration is not an option for any but the most dangerous of offenders. People convicted of serious offences are going to be released back into society. Unless there are incentives for them to turn away from their past lives, they will inevitably drift back to crime; this is especially so if they are always to be marked as criminals without hope of redemption.
Perhaps we could rename "pardon" to be something less evocative -- say, "remission of conviction." Perhaps pardons could be made more difficult to get for sexual-based offences. But the concept of an eventual pardon for good behaviour is appropriate and ought not to be eliminated.
German philosopher Johann Christoph Friedrich von Schiller said "a coward never pardoned." It takes courage to pardon a criminal. It requires that we be open to more than just punishment and to remember that no one in this world is perfect. It means we have to accept that people can change and that the criminal of today can be the decent person of tomorrow.
The case of Graham James just keeps getting stranger, in ways that make it seem Canada still doesn't know what to do with serial sex offenders.
James was sentenced to 31/2 years in federal prison in 1997 after he pleaded guilty to assaulting former NHL player Sheldon Kennedy and another unnamed player about 350 times over many years. James opportunistically exploited his position as a prominent junior hockey coach -- a position not only of trust, but also of reverence for young athletes. Last year, former NHLer Theo Fleury said he, too, was abused by James. (No charges have been laid; Winnipeg police say they're investigating.)
The sentence seemed light, relative to the magnitude of the crime. But the case has become even more offensive to Canadians' collective sense of justice with the revelation that James was quietly pardoned in 2007.
The principal purpose of a pardon is to make the convicted person's criminal record harder to find. The record still exists, but is removed from police data bases, though, in the case of sex offenders like James, criminal records do get disclosed if the offender undergoes a screening to work with children or other vulnerable people.
Symbolically, though, a pardon is the judicial system's way of saying: You are forgiven. No wonder Public Safety Minister Vic Toews and other legislators are upset. (The Prime Minister's Office said the pardon is "gravely disturbing" and merits a "full explanation" from the parole board).
Sex offenders who prey on children are a special class of criminal. It's one thing to let them out of jail when they've served their time, but it's wrong to pretend all is forgotten. Certainly, the children who are victimized will never be allowed to forget.
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