Bill C-23 (Historical)

Eliminating Pardons for Serious Crimes Act

An Act to amend the Criminal Records Act and to make consequential amendments to other Acts

This enactment amends the Criminal Records Act to substitute the term “record suspension” for the term “pardon”. It extends the ineligibility periods for applications for a record suspension. It also makes certain offences ineligible for a record suspension and enables the National Parole Board to consider additional factors when deciding whether to order a record suspension.

Eliminating Pardons for Serious Crimes Act

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, I completely agree with what was just said, and with what was said by the previous speaker. There needs to be a balance between justice and mercy.

Why was this bill introduced? Because one event was sensationalized and very poorly received. In showing that it is tough on crime, the government is not looking for an appropriate way to reduce crime in the future; it is looking for more votes at election time. It is tough, but it need not be as tough as the United States, which has proven that it is tough on crime to the point of being stupid about it.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Mr. Speaker, I wanted to have the member comment on the Conservative government's new-found interest in the pardon system. Interestingly enough, in 2006 the former public safety minister conducted a review of the pardon system in response to the pardon of Clark Noble, a convicted sex offender. That led to a minor change, including a requirement for two parole board members to review the pardon applications from sex offenders. Ultimately, the minister gave the pardon system a clean bill of health and we moved merrily forward for another four years.

Just a month ago, the member for Surrey North introduced Motion No. 514, which we debated, in which she directed the Standing Committee on Public Safety and National Security be instructed to undertake a review of the Criminal Records Act and report back to the House within three months on how to strengthen the act and ensure that the National Parole Board puts public safety first in all of its decisions.

What did the government do? It took the rug right out from under her and brought in Bill C-23 as a response to--

[The Deputy Speaker, Conservative, Andrew Scheer]

Order. The hon. member for Marc-Aurèle-Fortin.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, because we will be studying it in committee, I believe we should study it thoroughly by looking at the success stories, the statistics, the jurisprudence in cases where it was granted and the jurisprudence established by the decisions of the National Parole Board. We have to look at the details so that the public understands how the system works rather than just remembering one thing, the Graham James case.

The public may perhaps compare the case of Graham James to that of Robert Piché, the pilot who was pardoned and today flies commercial aircraft. This excellent pilot who flew aircraft under difficult conditions was at one point a drug trafficker. However, he went back to work, and did an exemplary job when two of his airplane engines failed in mid-ocean. He managed to land safely and today they are making a movie about him.

That is one person who benefited from a pardon. It is not just about Graham James. I believe there are more people like Robert Piché who have been pardoned than there are people like Graham James.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Speaker, I listened closely to my colleague, with whom I sit on the Standing Committee on Justice and Human Rights. I find him very interesting.

I would like my colleague to comment further on one point. I may not have heard him talk about this because I arrived after he began his speech. In Bill C-23, the government seems to want to photograph and fingerprint all people who get arrested, regardless of whether they are suspected of having committed a crime. The police arrest people, take them to the station and fingerprint and photograph them before they are convicted or found guilty by a court.

What does my colleague think about that, and what should the committee's position on this issue be?

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, I would like to be very brief and say that we will see once this goes to the committee. We should not go overboard with fingerprinting because we might end up fingerprinting everyone.

I am sure that Ms. Stoddart will explain to us in detail which rules apply. But I know that back in the day when I was practising law, when people were acquitted, they could have their fingerprints destroyed. I think that there were good reasons for that, and for those same reasons, we should not be fingerprinting everybody all the time.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, I am pleased to stand and speak to Bill C-23 on behalf of the New Democratic Party.

In short, the New Democrats support the bill at second reading. We support the bill at second reading because we believe fundamentally in four critical and profound points.

One, New Democrats believe, given a lot of the attention given to the pardon system in this country over the last several weeks and months, that a thorough study of the pardon system is in order. Canadians want parliamentarians to take a close look at the way pardons are granted in this country, and New Democrats are ready and able to do that.

Two, New Democrats want to look at extending the ineligibility period for certain kinds of offences. As Canadians know, there are currently only two time periods in the Criminal Records Act that apply to someone seeking a pardon. They are three years for those convicted of a summary conviction offence and five years for those convicted of an indictable offence. New Democrats are again interested--

The House resumed consideration of the motion that Bill C-23, An Act to amend the Criminal Records Act and to make consequential amendments to other Acts, be read the second time and referred to a committee.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, I was on the second point regarding what the New Democrats believe in.

We are prepared to look at extending the eligibility periods for certain kinds of offences, because it could be the case that we may need an offender to demonstrate a longer period of good behaviour before being eligible for a pardon. We are prepared to look at that.

The third point is that New Democrats believe that the National Parole Board needs to have more discretion when evaluating whether a pardon ought to be granted. It is our view that the current pardon legislation does not give the National Parole Board sufficient discretion. That results, we think, in there being certain injustices that may occur.

I will say right now that I think all Canadians will immediately think of people like Karla Homolka, who under the current pardon legislation, would likely be granted a pardon. We in the NDP do not think that this is a just or fair result. Certainly someone like Karla Homolka, in our view, should not receive a pardon in this country, and we are prepared to amend the pardon legislation to ensure that this does not happen.

As I will expand on a little later, New Democrats propose what is the toughest wording when it comes to preventing people who ought not to get pardons from getting them. I will say right now that the government has proposed legislation that contains words that would give the National Parole Board the discretion to refuse a pardon when to do so would “bring the administration of justice into disrepute”. That is the language proposed by the government. The NDP thinks that is good language.

However, New Democrats would go further. We would add the words, “or would shock the conscience of Canadians”. That would give two separate grounds under the Criminal Records Act for the National Parole Board to deny a pardon. We think that is important for ensuring that we have credibility and faith in our pardon system.

Fourth and last, New Democrats believe that we need to hear from correctional experts, victims, police, offenders, sociologists, and every single person who has expertise and knowledge about the current Canadian pardon system. They need to come to the committee and have a thorough and intelligent discussion about each one of these points to ensure that we strengthen our pardon system in this country and ensure that it is fair.

New Democrats last week drafted a motion, and presented it to all parties in the House, that would have allowed a particular amendment to the Criminal Records Act to pass through the House quickly, before summer. It is a surgical, targeted amendment that would simply change the Criminal Records Act to say that the National Parole Board would have the power to refuse or decline a pardon where to do so would bring the administration of justice into disrepute or would shock the conscience of Canadians.

The NDP has done this because the government has been asleep at the switch for the last four years. Karla Homolka is eligible for a pardon this summer. The government waited until June 7 to introduce legislation in the House that would prevent her from getting a pardon. Of course, the government will not be able to get that legislation through the House, so it has proposed Bill C-23, which proposes many changes to the pardon system, many of which are undesirable or misguided or require further study.

New Democrats came forward with surgical, targeted legislation that would allow us to make one change to the Criminal Records Act to ensure that pardons are not given to people in this country who ought not to get them. It could be done without moving precipitously and ending up harming the pardon system that plays a very important role, not only in the justice system in this country but in keeping communities safe.

This bill would do a number of things. Some things are good, some are questionable, and some are, without question, misguided and undesirable.

This bill would rename pardons and call them “record suspensions”. We will have to study that to see what the impact would be. At this point, it is hard to know exactly what that would do, good or bad. It could be a cosmetic change. It could be something that has ramifications. New Democrats want to study the impact of that change.

It increases the ineligibility period that must pass before a pardon application can be submitted to ten years from the current five years for indictable offences and to five years from the current three years for summary offences.

The New Democrats believe that there may be cause and good grounds to increase the probation period for some offences. I am thinking, for instance, of a repeat sex offender. It may be the case, once we hear from experts and people knowledgeable in the field, that we may want to have that person demonstrate a longer period of good behaviour before he or she is eligible for a pardon. We are prepared to look at that. However, to have a blanket rule that extends the time period for every single person in all circumstances represents the kind of blunt instrument the government uses for an issue that requires intelligence and nuance.

It prohibits those convicted of three or more indictable offences from ever receiving a pardon. This shows the government's continuing attachment to the American, U.S.-style approach to justice that does not work. This is a “three strikes and you are out” policy. That is what it is. I think everybody in this House who is paying attention and most Canadians know that most of the U.S.-style approaches to justice issues brought in by right-wing Republicans during the 1980s and 1990s are now being rejected by Americans across that country, because they are bankrupting the country, and more importantly, they are not having any impact whatsoever on making U.S. communities safer.

I will give an example. There could be a 19-year-old young offender who steals a car, who, in the course of being arrested, may resist arrest and may end up with an assault charge from resisting arrest. That kind of person, at 19 years old, under the government's legislation, would be prevented from ever receiving a pardon. That is obviously not an intelligent approach to a pardon policy in this country.

This legislation would prohibit anyone convicted of one or more offences, from a designated list of sex offences, from ever receiving a pardon.

Currently, under the eliminating pardons for serious crimes act, anybody who receives a life sentence is prohibited from ever receiving a pardon. The government proposes to expand that list. New Democrats are prepared to look at that.

With respect to pardon applications for indictable offences, the parole board would be required to deny a pardon if granting it would bring the administration of justice into disrepute. Once again, this is the kind of section that would be used that would otherwise prevent someone such as Karla Homolka from getting a pardon. However, it is too little, too late from the government. I wish it had brought in this legislation a year ago or two years ago, because it was no secret that Karla Homolka was approaching the fifth year after the conclusion of her sentence. Again, this government is a bad legislator and a bad policy-maker. It was asleep at the switch and is playing politics with crime.

I do not know whether the government understands that the pardon system plays a critical role in our justice system.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

They reviewed it in 2006.

[Don Davies, NDP, Vancouver Kingsway, BC]

One would think that the government would know that, because as my hon. colleague from Elmwood—Transcona has pointed out very accurately, the government, two public safety ministers ago, looked at the pardon system in a circumstance very similar to the one we have today. There was a convicted sex offender who was granted a pardon, and the government, again, in a knee-jerk reaction, sprang into action and did a quick review of the pardon system. However, it did not do it in an intelligent, policy-oriented way. It did not put it before the public safety committee, which has 12 MPs from all parties on it. It did not hear from sociologists, academics, corrections officers, and parole officers, the people with knowledge of the criminal justice system. It just reviewed it.

What did the former public safety minister do after that review? He did virtually nothing. What the former public safety minister did was make a couple of changes. He increased the number of people on the National Parole Board reviewing certain kinds of offences from one person to two people. That is about the net sum of what the government did.

Therefore, I ask, and Canadians ask, if the Conservative government reviewed the pardon system in 2006, found it fine, and made just a slight change, what is the difference now? Again, it is politics. Canadians know that the government uses public safety and crime as a political issue. It does not really care about making a criminal justice system in this country that works, keeps Canadians safe, is fair to victims, and is fair to everybody involved in this system.

The pardon system is an important part of our justice system. It is an important part of keeping us safe. It balances the punitive aspects of the penal system with the redemptive aspects of the pardon system. This helps because, as New Democrats say time and time again in the House, when an offender comes out of prison, we want the offender never to reoffend again.

Once someone has offended and has been given a sentence, the only intelligent, wise approach to take as policy makers, the only wise and reasonable approach to take to keep people safe in this country is to do what we can to make sure the person does not reoffend. Part of that process is to give the person who offended a reason, an incentive, a carrot for good behaviour. It is not just punishing bad behaviour which is important. It is ensuring that the person has an incentive and is rewarded for good behaviour. The pardon system is part of that. It allows a person to come out of prison and engage in good behaviour and respect the law and reintegrate into society as a law-abiding citizen. At the end of that, it allows the person to get the benefit of a pardon. That is an important part of our system. If we get rid of that or make changes to that system that are counterproductive, it will make people less safe in this country--

[The Deputy Speaker, Conservative, Andrew Scheer]

The hon. member will have six and a half minutes to finish his remarks the next time this bill is before the House.

The House resumed from June 7 consideration of the motion that Bill C-23, An Act to amend the Criminal Records Act and to make consequential amendments to other Acts, be read the second time and sent to a committee.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Madam Speaker, it is a pleasure for me to rise on this very important Bill C-23. In the few minutes that are mine, I will try to describe the Criminal Records Act and what they are trying to do with Bill C-23.

I want to start by saying that the Bloc Québécois and I feel that this bill is probably not necessary to protect victims, because they are already adequately protected by the Criminal Records Act.

There was an incident, and we all know how today's fine government reacts. A hockey coach, Graham James, committed some really terrible acts, for which he was sentenced. He served a prison term for sexual assault on two well-known hockey players, Sheldon Kennedy and Theoren Fleury. He served his time, was released, and now lives in Mexico. He got a pardon and the government blew a fuse because it thinks he should never have been able to do this.

I will define what a criminal record is for the benefit of the people listening to us. It is created after someone commits a crime. I should say right away that someone who commits a traffic offence or a hunting or fishing offence does not get a criminal record. Those are offences against provincial laws, or even some federal laws, such as the Migratory Birds Convention Act. There is no criminal record in those cases. A record is created when someone commits a criminal offence and pleads guilty after having seen the evidence or is found guilty after a trial. I will give an example to explain.

Someone is sentenced to five years in prison and three years of probation for armed robbery of a bank. As soon as the sentence is spoken, he automatically gets a criminal record for the rest of his days. Theoretically, he will be stained for life, but the stain can be removed. I will get back to that in a moment. What is important to emphasize is that a person who has been sentenced will have a criminal record that will follow him for the rest of his days, unless he gets a pardon.

It is called a pardon, but actually it is more like a suspended criminal record. A person who was pardoned, in everyday legal jargon, if asked about any prior convictions, does not have to say he has a record. The government wants to change this system by introducing a bill to suspend criminal records. Why? A person who is sentenced to five years in prison plus three years of probation has a criminal record. The government says not enough concern is shown for the victims, but that is not true. The Criminal Records Act gives the National Parole Board all the power it needs to ensure that people who get pardons are entitled to them and have earned them.

In the case we are concerned with, it is not true that anyone can get a pardon quickly and automatically. That is not how things work in real life.

An individual is sentenced to imprisonment for five years with three years’ probation, which makes a total of eight years. That is easy to count. The individual has to wait five more years before being able to make an application for a pardon, or, as we are calling it here, an application for a record suspension.

How does it work in real life? The individual serves their sentence, and then they are paroled, subject to conditions, and are still supervised until the end of the five-year sentence. The three years’ probation that the judge ordered when they were sentenced is added. So after serving the five-year sentence, three years are added, during which the individual must keep the peace, be of good behaviour and report to an officer, as the law provides and as the court may direct. The conditions of probation are set by the court.

Let us assume that all goes well, the individual serves his sentence, is released, is a good person, is reintegrated into society, and after three years’ probation has committed no offences and has not breached parole in any way. The individual will then have to wait five years, because that is what the law provides.

For a crime committed by an individual at the age of 18 or 19 or 20, which unfortunately happens all too often, that individual will be under judicial oversight for the next 13 years, at least: a five-year sentence and three years’ probation, plus five more years, because he has to wait five years before applying for a pardon.

All of that absolutely does not happen automatically. The opposite is true. In my former life, when I practised criminal law, I represented people like that, and we filled out the forms. An individual can apply for a pardon on his own, but he can also have a lawyer to help. Generally, the individual gets assistance because the procedure is very lengthy. When I say very lengthy, that is a minimum, and it varies considerably based on the crime committed.

I will come back to the example of armed robbery that I gave at the beginning of my speech, for which the offender was sentenced to five years with three years’ probation. Generally, the National Parole Board will examine the individual’s case very carefully before granting a record suspension, to use the term in the bill. Even in sexual assault cases, the board that grants the suspension does a lot of checking.

The individual must first apply, fill out a form and send his criminal record, fingerprints and recent photos to the nearest RCMP office, which forwards it to the board. At that time, an investigation is carried out. This investigation is not necessarily public because it is the individual who has applied. All police forces in Canada, Quebec and all other provinces are contacted to verify whether this individual may, by chance, be hiding offences to which he has pleaded guilty or has been found guilty of. Naturally, if this is the case, this individual's application for pardon or record suspension will be rejected. He will then have to wait a long time to be pardoned.

Thus, the individual files an application, which is forwarded and then studied. All police forces are contacted to determine whether or not the individual has other offences that he has not disclosed. If there are none, it can take between six and eighteen months. In my experience, it takes a minimum of one year before the individual is notified that his pardon, or record suspension, has been granted.

Thus, this is a very long process. The Bloc Québécois will agree to study Bill C-23 in committee because we must carefully examine how to proceed. I have to say one thing. Unfortunately, someone with a criminal record is marked. This is what generally, and unfortunately quite often, happens. Take the example of an individual who, at the age of 18, commits a break and enter and is sentenced to a few weeks or months in jail, plus one year of probation. Everyone in this House knows that we have a propensity to forget. The individual is sentenced and then later forgets about it. A few years later, he applies for a job. Therein lies the problem with not obtaining a record suspension or pardon. Some jobs are not open to those with a criminal record. They cannot be a member of the bar, and therefore a lawyer or notary, nor can they be a doctor or surgeon. Some universities ask if applicants have a criminal record. Those who have forgotten to declare it will be automatically rejected.

This is something we want to check when this bill goes to committee. We should not do anything to hurt someone who is rehabilitated. We are going to agree on that. I just said that big, important word, “rehabilitated”. The Conservatives always say we are more concerned about offenders than victims. Individuals who are entitled to a record suspension are those who have truly been rehabilitated. They have recognized their problems, dealt with them, served their sentence and been pardoned; they have paid their debt to society. We need to stop getting carried away. Obviously, someone who has been charged with and convicted of murder may have a great deal of difficulty getting a record suspension. The offender is convicted and serves a 25-year sentence. This bill does not target these people. It is aimed much more at petty criminals. I am in no way suggesting we should pardon every crime without checking.

With respect, I believe a person can be rehabilitated. We all know people who have made foolish mistakes in their youth, and I can give some examples. In my former life as a criminal lawyer, I had clients who had driven while impaired and unfortunately had been in an accident. I can tell you that this is traumatic, but on top of the crime he has committed and the wrong he has done to a victim, the offender receives a sentence. However, he will likely be able to obtain a pardon for this sentence once he is completely rehabilitated.

We need to be careful not to deprive individuals of the right to a record suspension if they have made every effort to rehabilitate themselves. This is what worries me about this bill, and we will have to look at it very carefully in committee.

I agree that we need to be tough on criminals, but do we need to be as tough on someone who is completely rehabilitated? I have an example. I represented someone who was sentenced to 36 months in prison for eight break and enters. This person has been completely rehabilitated since then and today works as an expert mechanic. If he had not been pardoned, he never would have been able to get this job.

That is the problem with this bill. We must not deny a rehabilitated individual a decent job if he has served his prison term and successfully completed his probation under supervision. Such a person is completely rehabilitated and after spending some time in society, is entitled to have his youthful mistakes erased.

Some people will point out that there are mature individuals, 40 or 50 years old, who commit sexual assault. With all due respect to my opponents, this bill is not intended for those individuals. A criminal who commits offence after offence is not the focus of this bill. I have some examples. A repeat offender will never receive a pardon. His criminal record will never be suspended. This bill is for individuals who have made a mistake or two over an extended period.

Unfortunately in our society, many people make mistakes and keep making mistakes. Many university applications and job applications ask the applicant if they have ever been convicted of a criminal offence. Having successfully applied for a pardon—or a record suspension—the individual is not required to answer that question. He can say he has never been convicted. By virtue of serving his sentence, resolving his problems with society and receiving a pardon from the governor in council, the individual's record is suspended. That is what we will be looking at in this bill in the coming weeks and months, if we are given the opportunity to do so.

Another aspect of this bill causes me great concern. Someone who is pulled over and suspected of driving while impaired would be taken to the station and asked to do a breathalyzer test. He gets a result of 0.7, which is not so bad, but he would be charged with impaired driving. His fingerprints would be taken and so would his photo. That is what could happen under this bill.

This is completely unacceptable and goes against the charter, under which a person is presumed innocent until proven guilty. This aspect of the bill should be withdrawn. A person's fingerprints and photo cannot be taken if they have not been found guilty or if they have not pleaded guilty. This bill would change that process and that is unacceptable. We think this is very dangerous. This aspect will have to be explored further.

For now, we are voting in favour of this bill so that it can be studied in committee.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Madam Speaker, I appreciate that my colleague was very illustrative in what he was doing. With his years of experience in criminal law practice, I would like to ask him a few questions about this.

He mentioned that his party would vote to put this into committee. I get the feeling that the major opposition they would have to this bill pertains to the idea of the rehabilitation of younger offenders, those around the age of 18 or 19, despite the crime. However, he does go on to say that he is not particularly concerned with the people who are serving 25 year sentences for things like murder, but that his focus lies more or less on 5 year sentences. Once they pass this bill to get it to committee, is it their intention to focus on those younger offenders who may stand a greater chance of being rehabilitated several years down the road?

He mentioned that certain aspects in the bill were against the charter, but if we accept this bill in principle, beyond that, maybe the scope of the changes that he wants will not be possible. Is that a fear of his as well?