OTTAWA - The decision by the House of Commons to rush through an overhaul of criminal pardons may result in a quagmire of appeals over a major hurdle for obtaining them under the new regime, says Liberal Senator George Baker.
The sticking point could be the inclusion of a term from the Charter of Rights and Freedoms as one of the conditions that would allow the National Parole Board to grant a pardon after an offender has passed a new wait time of 10 years following completion of a sentence.
Under the legislation, parole board panels will be able to grant pardons if the applicant has been of good conduct and not been convicted of an offence under any act of Parliament.
At the same time, the pardon would provide a “measurable benefit” to the applicant, would “sustain” rehabilitation, and “would not bring the administration of justice into disrepute.”
In the French version of the new bill, as well as the s. 24 Charter term, the same phrase allows for a pardon as long as it’s not “susceptible” to bringing the administration of justice into disrepute. Courts have interpreted the French word “susceptible” to mean “could.”
The meaning is critical in Charter cases dealing with s. 24 in which evidence is being challenged on the grounds that the manner in which it was obtained infringed or violated an individual’s rights. The “could” threshold requires less certainty to prove.
National Parole Board members aren’t judges, Baker notes. While many of them are qualified
and must pass written and oral exams before getting a position on the board, they’re not trained in legal interpretation.
“These are parole board members, not judges, and this could increase the number of appeals to Federal Court,” he tells Law Times.
Ottawa defence lawyer Mark Ertel goes further, saying parole board members, unlike the courts, will likely not be bound by a 1987 Supreme Court of Canada decision, R. v. Collins, that ruled all courts must use the lower-threshold French interpretation regardless of the language in which the accused has chosen to be heard.
He notes that was the first s. 24.2 case for excluding evidence and believes the new legislation will only add to the roadblocks and difficulties it already presents for offenders seeking pardons.
“The Criminal Records Act is not criminal legislation, so it won’t be interpreted strictly in favour of the accused person or the person applying for the pardon,” Ertel tells Law Times.
“It would be interpreted in a purposive way, which is trying to figure out what the purpose of the legislation is. The purpose of the legislation, it would seem to me, is to give less people pardons.
If it’s not to give less people pardons, it’s to make it harder or more difficult to give a pardon and admit into the pardon regime an element of discretion.”
Ertel adds: “It turns it into a more political hearing, really - not political in the sense of people being appointed politically but that the public perception of the justice system is going to have a big impact on what happens here.”
The legislation is titled bill C-23A because opposition and government MPs unanimously singled out one element of another proposed set of amendments to the pardon and parole system and passed it through all Commons stages, including “deemed” committee passage, in two minutes as they rushed into an early summer recess beginning June 17.
The bill specifies manslaughter as among the personal injury offences the pardon terms cover, a designation aimed at preventing Karla Homolka from applying for a pardon in July.
MPs believed that had they waited until Parliament’s resumption in September to pass the original bill in its entirety, it would have been too late to prevent Homolka from qualifying for a pardon this summer.
However, Baker says National Parole Board officials indicated Homolka might not have been eligible for a pardon application until December under the existing regime because of a series of conditions a Quebec judge initially imposed upon her when she left prison in 2005.