The pardons system is opaque and seems little understood, even among academics well versed in criminal law. Unlike criminal-court rulings, the decisions of the National Parole Board to grant or deny a pardon are not available to the public. Canadians have no way of knowing what checks the board made before ascertaining that Graham James, the former junior hockey coach convicted of sexually abusing two players, had shown good conduct for the previous five years. (Public Safety Minister Vic Toews promised yesterday, in the wake of the James pardon, to introduce a new law in the fall. He did not give details.) In the past two years, only 41 sex offenders who applied for a pardon were rejected, out of 1,554 who applied. A pardon has become a candy picked out of a restaurant basket, available nearly to all – perhaps even Karla Homolka, convicted of manslaughter in the killings of three schoolgirls, Prime Minister Stephen Harper said yesterday.
If anyone is in a position to know how much scrutiny occurs before sex offenders or other violent criminals receive a pardon, it is Pardons Canada, a federal non-profit agency of more than 20 years' standing. “As far as we know, what good conduct essentially means is that they have not been in trouble with the police, very simply,” says Andrew Tanenbaum, the program director. That means no new crimes or charges for three or five years (depending on the seriousness of the crime), and no “police incidents” that may have resulted, for instance, in calls to a house or dropped charges.
Lawyer Fergus O'Connor of Kingston, Ont., who wrote a textbook with a section on the subject, explained that when he has clients seeking a pardon, they “would have to provide evidence of their good character and their good conduct during the time in question.” For instance, they may provide supporting letters from neighbours or employers, much as convicted people do in sentencing hearings. “Sometimes I've had clients give my name as a reference.” Still, that is different from original legwork being done by, or on behalf of, the parole board. It used to be that the RCMP would contact neighbours, employers and others to check up on applicants for pardons, according to Toronto lawyer Michael Carabash, who is writing a book on pardons. The decision to grant or deny a pardon belonged, until 1992, to a special committee of cabinet, based on a recommendation from the parole board. It is now entirely within the board's purview.
The board explained its scrutiny this way yesterday, in an e-mail: “If the case contains one or more indictable convictions, the case is classified by category of the seriousness of the offence convicted. Depending on the seriousness and harm caused by an offence, the more in-depth is the investigation (for sexual offence cases, two Board members vote instead of one, and additional calls are made to police services where the applicant resides to determine if additional information exists.)” Good conduct appears to mean an absence of known bad conduct. The term “pardon” implies more thought has gone into it than that.
The relevant law, the Criminal Records Act, should be rewritten so that more scrutiny is brought to bear on all those who commit especially serious or damaging crimes. This would include sex offenders such as Mr. James, whose criminal records are reportedly not being flagged as they were designed to be for children's protection. Pardons should not be a routine, mechanical affair.