|Breese Davies says a criminal record is a burden, and welcomes a Federal Court decision where a disbarred lawyer may be able to obtain a pardon.|
Spring applied for a pardon, now known as a record suspension, in late 2010, but he was ultimately denied four years later when a parole board member concluded that granting one in his case would “likely bring the administration of justice into disrepute.”
However, in a Jan. 26 judgment, Federal Court Justice Patrick Gleeson concluded that the shortage of detail in the parole board decision meant that it “lacks transparency and intelligibility and is unreasonable.”
“The Court and the applicant have been left with a decision that denies the application for a record suspension but does not address why,” Justice Gleeson added, ordering the matter back to the parole board for redetermination before a different decision-maker.
Breese Davies, a vice-president of the Criminal Lawyers’ Association, welcomed the decision.
“Having a criminal record is a significant burden, as our courts have recognized over and over again.
There is a lot about the post-conviction process that is not transparent, but this will force the parole board to ensure that applicants understand why they’ve been denied,” she says. “It’s not enough to simply assert that public confidence in the administration of justice would be eroded by granting a pardon; now they must articulate what it is about this particular case that leads them to that conclusion.”
The Parole Board of Canada was given the ability to reject pardons that would bring the administration of justice into disrepute as part of a raft of reforms to the process introduced in 2010.
The measures were intended to tighten up the pardons system, prompted in part by the revelation that notorious junior hockey coach Graham James had received a pardon for his sexual assault convictions, as well as the fear that Karla Homolka could become eligible for a pardon under the previous version of the Criminal Records Act.
“Under the old system, it was fairly pro forma; you were pretty certain to get a pardon if you met certain criteria.
The new regime is a lot more discretionary, and you don’t see a lot of challenges, partly because people tend to go through the process without a lawyer,” Davies says. “I wouldn’t be surprised if we saw more going forward.”
The new legislation created a bar on record suspensions for certain types of serious violent crimes.
Although fraud was not included among the statutory exemptions to pardons, the parole board effectively treated Spring’s case as though it was, according to his lawyer Robin McKechney of Toronto criminal defence firm Greenspan Humphrey Lavine.
McKechney, who represented Spring in his judicial review application at the Federal Court, says both he and his client were “very gratified” with Justice Gleeson’s decision.
According to McKechney, Spring is also feeling “hopeful” about his fresh parole board application.
“He has done everything anyone could ever ask for in terms of rehabilitation,” McKechney says.
Spring was 17 years into his career as a corporate commercial lawyer when he was disbarred in 1987 for the activities that would lead to his criminal convictions.
According to Justice Gleeson’s decision, he got one year of probation in 1990 after pleading guilty to one count of uttering a fraudulent document in a mortgage fraud case. In 1994, he pleaded guilty to seven more counts of fraud over $1,000 involving both institutional and individual complainants.
This time he was sentenced to four and a half years in jail, before parole was granted 18 months later.
The total losses to Spring’s victims added up to more than $1 million, according to Justice Gleeson’s decision, although he has since paid restitution to some of them.
Since his release from prison, Spring has achieved significant success in real estate, despite his past being common knowledge in the business.
Spring applied for a record suspension in October 2010, shortly after the changes to the federal Criminal Records Act that tightened up the system, but he received a positive recommendation from the senior records suspension officer that reviewed his application.
Things changed in September 2013, when a parole board member indicated the PBC was leaning towards rejecting Spring’s application, despite acknowledging his clean record and successful rehabilitation, on the grounds there were “credible concerns that granting a pardon would bring the administration of justice into disrepute.”
Spring responded with letters of support from members of the community, but in May 2014, PBC member Lubomyr Luciuk formally denied his request for records suspension.
“Given the nature, gravity, and duration of your criminal offending, and the need to maintain public confidence in the integrity of the justice system, I conclude that granting a pardon in your case would likely bring the administration of justice into disrepute,” Luciuk wrote.
Although Justice Gleeson was satisfied that the PBC’s decision showed it was “aware of the positive aspects” of Spring’s application, he wrote that there was nothing in it to “explain how the factors relating to the applicant’s offences outweighed the positive aspects of the application.”
“Mr. Spring has been a model of rehabilitation since he pleaded guilty to fraud over 20 years ago.
He has become a remarkably successful business person, employing, directly and indirectly, hundreds of people. None of this was considered by the parole board, which is why the matter has been sent back by the Federal Court for reconsideration,” McKechney says.
Jody Berkes, a Toronto criminal lawyer who chairs the Ontario Bar Association’s criminal justice section, says there has been little sign that the new Liberal federal government plans to reverse the changes made to the pardon system.
In any event, he says much depends on the board members themselves, many of whom were appointed by the previous Conservative government, since Justice Gleeson’s decision confirmed that the standard of reasonableness, and not correctness, applied to judicial review of decisions by the board.
“Even if the laws are rewritten, if the decision-makers are the same, we may not see a great deal of change. Their decisions don’t have to be right, they just have to be reasonable, and reasonable people can disagree on most things,” Berkes says.