Bill C-23A (Historical)

Limiting Pardons for Serious Crimes Act

An Act to amend the Criminal Records Act

This enactment amends the Criminal Records Act to extend the ineligibility periods for certain applications for a pardon. It also enables the National Parole Board to consider additional factors when deciding whether to grant a pardon for certain offences.

[John Hutton]

The bill has changed, and I'm not here to argue against Bill C-23A. You already have a clause in the legislation that allows for a great deal of discretion, and if that is your goal, it's there. There's quite a bit of discretion.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Okay.

In response to a question from my friend Mr. Holland, I think you said that any barrier put in place to prevent individuals from getting a pardon is not welcome and that the line is fine where it is. I think you may have already answered this. You don't support Bill C-23A either. You believe that the status quo prior to Bill C-23A was appropriate, and in that, the parole board has no discretion to deny a pardon, even if in its viewpoint it would bring the administration of justice into disrepute?

[John Hutton]

I guess the point is that you're bringing up legislation that's already been passed, Bill C-23A. If I were in front of this committee in June--I didn't have that opportunity--I would have said that I didn't think any changes were necessary, that it's bad policy to change law based on the most heinous example. But those changes were made. Those changes were made to deal with Karla Homolka and Graham James, for better or for worse.

[Phil McColeman, Conservative, Brant, ON]

I would like to thank everyone for being here today, and in particular Mr. Muhammed and Mr. Fraser and Mr. Courchene.

One of the most significant parts of this bill that we've had comments about already is the fact that what matters to a lot of Canadians and victims is that if this were to pass, individuals who commit a sexual offence involving a child would be ineligible to receive a pardon. These sexual offences would include things like child pornography, luring a child, and sexual exploitation of a person with a disability, among others. Clearly, they are some of the more heinous crimes imaginable committed.

As we know, obtaining a pardon comes with benefits. As you've said, it helps with employment opportunities, it helps when travelling to another country, and in some cases it would assist with child custody hearings, visitation rights, etc. Would you agree that most Canadians consider a pardon to be a privilege and not a right? I think your comments have indicated that today, that it is clearly a privilege that you're working toward.

Did you consider the pardon system, before we enacted Bill C-23A in the spring session--primarily motivated because of the Homolka situation--a system where the parole board did not have the authority to deny pardons in cases that would bring the administration of justice into disrepute, to have been adequate?

Your comments today say not to change anything, yet this particular situation was so heinous, and the parole board could not deny that individual a pardon. Do you think that's adequate?

Please go ahead, Mr. Fraser or Mr. Muhammed.

[Mary Campbell]

The act as amended by Bill C-23A provides for a 10-year waiting period in the case of a serious personal injury offence—possession of marijuana would not qualify under that definition—or offences referred to in schedule 1, which are child sex offences that were prosecuted by indictment. I cannot see possession of marijuana falling within a 10-year waiting period. It would fall within either a five-year or a three-year waiting period.

[Vic Toews, Conservative, Provencher, MB]

Well, I have to say that Canadians and victims' advocates have been overwhelming in their support for our pardons legislation. In fact, if we look at the bill as it was originally presented, some well-known victims, especially those who as children suffered at the hands of predators, have suggested that we have not gone far enough. But they have in fact supported this legislation because they believe it's an important and substantive step forward.

So, generally speaking, they have been overwhelming in their support of our pardons legislation, and I think that was evident when we passed Bill C-23A, which advanced the most critical aspects of pardon reform.

I would note at that point, Mr. Lobb, that many of these victims' organizations were very concerned. Indeed, I read in the newspaper how many pundits said we will never see Bill C-23B come up again and that the issue was dead. Many victims' groups were very concerned about that. They contacted me personally or my political staff so we could assure them that we would bring this bill forward. They see this as a minimum that government should be doing to respect the rights of victims.

So victims were pleased to see the first group of reforms go forward, and we are following through with our commitment to bring the second group before committee here. I've heard some concerns. Some are technical drafting concerns, in my opinion, but it doesn't change my commitment to the principle we're advancing in Bill C-23B.

Mr. Holland raised an issue, and I've simply said that if you, as a committee, can find a way to make sure that multiple offenders do not abuse the pardon system, I would be open to considering something like that, but I haven't seen anything better. Canadians out there are telling me that we don't give offenders third and fourth and fifth and sixth and multiple chances.

There are some circumstances in which, even for multiple offenders, we need to look at the situation. But generally speaking, I don't want to break faith with those victims who have trusted our government to do the right things to advance their interests over the interests of the criminal. So I'm committed to doing that.

[Vic Toews, Conservative, Provencher, MB]

We dealt with Bill C-23A.

[Vic Toews, Conservative, Minister of Public Safety]

Thank you, Mr. Chair.

It's always a pleasure to appear before you and this committee. I know you have a particular interest in issues of public safety, having served as the critic for Public Safety for a number of years. I know you did an admirable job in that respect, and I'm sure you are putting that knowledge to good use, as you are now entrusted with this very important position as chair of this committee.

I will say that after I and 30 separate individuals have appeared at eight committee hearings answering questions on G-8/G-20 costs, the chance to finally discuss government legislation is indeed a welcome opportunity. I'm grateful to contribute to your review of Bill C-23B, the Eliminating Pardons for Serious Crimes Act.

I have with me a number of senior officials, whom you have already introduced. I will defer to their knowledge in specific areas when it's appropriate in order for the committee to get all the facts necessary for consideration.

With your permission, I have a short opening statement, after which I would be happy to answer any questions the committee may have.

Before I continue, I want to acknowledge the spirit of cooperation that all honourable members have demonstrated in strengthening Canada's pardon system. Together we've made some important progress in addressing serious shortcomings in the legislation, things that were a very real concern for Canadians, and things that the House was able to pass prior to rising for the summer break of Parliament.

With the amendments to the Criminal Records Act, passed in June, the Parole Board of Canada now has the authority to exercise discretion and to deny a pardon application in cases where the evidence clearly demonstrates that granting one would bring the administration of justice into disrepute. The board must weigh this decision, taking into account factors such as the nature, gravity, and duration of the offence, as well as the circumstances surrounding the commission of the offence, and of course the applicant's criminal history. You will recall that under the former legislation there was little difference in the criteria to differentiate between a pardon for an indictable offence and summary conviction offences.

Offenders must now show that there is a measurable benefit to granting them a pardon. The onus is on the applicant to demonstrate to the Parole Board of Canada that a pardon will contribute to their rehabilitation as a law-abiding citizen. Those amendments also increase the length of time before someone convicted of a serious crime is eligible to apply for a pardon. Anyone convicted, by indictment, of a sexual offence against a child or of a serious personal injury offence is required to wait 10 years, instead of the previous five, before they can apply for a pardon.

We have worked in collaboration with the other parties to make solid initial progress. In passing these amendments, we've also shown our respect for the wishes of victims and many other law-abiding Canadians. We believe more can be done, and I trust we can continue in the spirit of cooperation to make further improvements to the legislation.

Mr. Chair, to understand why Bill C-23B is important, we need only to go back to April of this year, when Canadians learned that sex offenders can have their records set aside if they meet the requirements and they have adopted a law-abiding life. Canadians reacted. Many were concerned.

A good part of Canadians' reactions was connected to the word “pardon”. One of the dictionary definitions of “pardon” is forgiveness. The other meaning, which is “remission of illegal consequences of crime or conviction”, is closer to what the act intended. The perception of forgiveness has prevailed, and in very serious cases in particular it has been very difficult for victims to contemplate forgiveness when the harm or injury is still being suffered by that victim.

This is why this bill would change the terminology. The Parole Board of Canada would no longer grant offenders a pardon, but rather a suspension of record. This change will provide a more accurate and understandable description of what in fact is being granted and an opportunity to start over with what amounts to a clean slate.

It affirms the fact that a person's criminal record will be kept separate and apart, but it makes clear that the record has not been erased. That is one important amendment contained in this bill.

A second amendment is directed at protecting the most vulnerable of our citizens, our children. While Bill C-23A made some improvement in this area, we believe more should be done.

As you will recall, the amendments passed in June provided that those convicted of a sexual offence related to a minor and prosecuted by way of indictment must now wait 10 years to apply for a pardon. In the case of those who commit a sexual offence against a minor and are prosecuted by summary conviction, the waiting period is now five years. The amendment proposed in Bill C-23B would go further and make anyone convicted of an offence involving sexual activity relating to a minor ineligible for a suspension of record.

I emphasize that this provision would not be all encompassing. If the offender can demonstrate that he or she was close in age to the victim, which is similar to some of the other provisions we have in the Criminal Code, and that the offence did not involve a position of trust or authority or a threat of violence or intimidation, a suspension of record could be granted in that circumstance.

This bill would also deny a suspension of record to anyone convicted of more than three offences prosecuted by indictment. We believe this is a reasonable cut-off point.

A final amendment contained in this bill would require the Parole Board of Canada to submit an annual report on its activities with regard to suspensions of record to the Minister of Public Safety. This report would be tabled in Parliament and therefore available to all Canadians. The report would let Canadians know how many applications the board received for suspensions of record for both summary convictions and indictable offences, as well as the number of suspensions ordered and refused for both categories of offences. The report would also list suspensions of record ordered by offence and by the applicant's province of residence.

The goal of this amendment is quite simple, and I trust honourable members will agree that greater transparency is always a good idea. We believe this is information that Canadians should be able to access. It's also information that parliamentarians need in order to determine whether the system is working as it should. This report would not contain any personal information.

Mr. Chair, in addition, the government will be bringing forward various technical amendments to this legislation in order to reconcile Bill C-23A and Bill C-23B. The reconciliation has to occur, given the fact that those two bills were split off, and it would appear that presently, unless that reconciliation takes place, there would be some inconsistencies if the House simply adopted Bill C-23B.

In conclusion, Mr. Chair, we are all aware that certain provisions of the Criminal Records Act have been the subject of considerable debate in recent months. We have all read the editorials and the letters to the editor and we have listened to the calls on the talk shows. I know how many e-mails and calls I have received on the subject.

There is no question that the subject of pardons touches a nerve with Canadians. The amendments we are proposing in this bill are a reasoned response to the very reasonable concerns of Canadians. With the simple replacement of one word, these amendments would take a great deal of the emotion out of this debate and more accurately identify what in fact is being accomplished. Together with the previous amendments to the Criminal Records Act, they will help further ensure that suspensions of record are granted only to those who have earned them. They will provide Canadians with more information about the workings of an important part of our justice system.

I thank you, Mr. Chair. I thank committee members in advance, and I look forward to our discussions.

Criminal Records Act Review

[Dona Cadman, Conservative, Surrey North, BC]

Mr. Speaker, I appreciate the opportunity today to discuss Surrey North's motion before the House calling for a parliamentary examination of the pardon system.

In the last session, Parliament undertook an initiative in Bill C-23A in responding to the widespread concern of Canadians over a seemingly automatic pardon system.

Recently I shared the outrage of Canadians that notorious sex offender, Graham James, received a pardon and had his criminal record sealed by the Parole Board of Canada. The government was understandably concerned that other notorious criminals would also get a rubber stamp. That is why we took quick and decisive action to advance the most critical aspects of our pardon reform.

We listened to Canadians and, most important, we listened to the victims themselves, all of whom told us the same thing, which was that change was needed and that it was needed now. I, therefore, urge all my colleagues in the House to work together on this. We need to continue our good work and reform legislation to ensure the protection of families, communities and, most important, victims.

The way the rules were written allowed the vast majority of offenders to receive a pardon. If an individual had been convicted, served his or her time and was not convicted again for either three or five years after completing their sentence, he or she was entitled to a pardon.

The pardon approval rate under the previous system suggests that the Parole Board of Canada has been interpreting the Criminal Records Act as requiring it to grant a pardon in almost all cases. In essence, it has come to be an almost automatic entitlement. This does not mean pardons will not continue to play a very important role in the offender rehabilitation process. It will, but it will cease to be the rubber stamp it has become.

Under the previous system, the rules allowed for little difference between indictable and summary offences. For a summary conviction, offenders needed to wait three years after serving their sentence and before they could apply for and be granted a pardon. Those convicted of indictable offences needed to wait five years and demonstrate good conduct, after which they could apply for and be granted a pardon.

I believe there is a big difference between people who are convicted of an offence, such as break and enter when they were young, and people who are chronic serious offenders. We need to look very carefully at whether our pardon system should treat these people with very different criminal histories in the same manner. Our government tabled legislation will provide the Parole Board direction to consider such factors when rendering a decision.

The legislation that our government introduced and was eventually approved by Parliament established that the Parole Board can deny a pardon in any case where granting it would “bring the administration of justice into disrepute”. I believe that this is the central provision.

In addition, ineligibility periods have been extended, particularly for cases processed by indictment and involving sentences of more than two years, such as those offences involving personal injury and sexual offences against children.

I believe all members in the House owe the responsibility to not just their families and friends but to their constituents to ensure we make our promise good to Canada and make a better and safer place to live. I ask for the support of all hon. members in the passing of Motion No. 514. Together we can reform the pardon system to ensure it better reflects Canadian values.

[Greg Rickford, Conservative, Parliamentary Secretary for Official Languages]

Mr. Speaker, I am certainly grateful for the opportunity to join in this important debate on the motion from the hon. member for Surrey North, and I thank her for this opportunity to speak to it.

Recently, many Canadians were made aware that the current system of pardons in this country might not work in a way that always and unequivocally puts public safety first. Canadians were outraged when they learned that sex offender Graham James, for example, received a pardon. They are understandably concerned that other notorious criminals may also get a rubber stamp. That is why our Conservative government took swift and necessary action last spring.

Bill C-23A gives the National Parole Board the tools it needs to decide if granting a pardon is warranted, and it ensures that the waiting period to apply for a pardon better reflects the severity of the crimes committed. That is not all. I urge all members of this House to support the remaining reforms as they are contained Bill C-23B.

Our government has made listening to the views of Canadians and especially the voices of victims one of our top priorities since we were first elected in 2006. We have, in fact, heard from victims and victims groups that support these reforms.

I would like to first commend the hon. member for her ongoing work on behalf of victims and for bringing this important matter forward.

As we heard, the legislation governing the pardon system was such that a pardon was granted to nearly all ex-offenders who applied for one. Let me put that into concrete terms. According to the National Parole Board, just 2% of all applications for a pardon were rejected in 2008-09. That compares with only 1% in 2007-08 and again a mere 1% in 2006-07. In 2006-07, only 103 of 14,851 applications were rejected. The following year, only 175 of 25,021 applications for a pardon received by the National Parole Board were, in fact, rejected.

Those numbers raise some troubling questions and concerns for many Canadians. Many Canadians asked whether the current system simply operated as a rubber stamp. Others wanted to know whether there were enough safeguards in place. These were the issues we needed to examine very carefully, with an eye to making sure that the needs of victims and the safety and security of Canadians always comes first. We remain committed to ensuring that the pardon process is not a rubber stamp. That is why we brought Bill C-23 forward.

We advanced the most critical aspects of pardon reform before the summer break, but we have much more work to do. I call on the opposition to continue the work we accomplished in June and to side with victims and law-abiding Canadians and not with criminals.

The general rule of thumb at the time was that people convicted of summary offences were eligible for a pardon three years after finishing their sentences, provided they had not been convicted of any other offences during that period. Pardons in these cases were automatic, and the National Parole Board had absolutely no discretion to refuse an application.

For those convicted of more serious indictable offences, the waiting period was a bit longer, five years, and applicants had to demonstrate that they had had good conduct. However, each application was either accepted or rejected using exactly the same criteria, regardless of the nature of the offence. Again, it was a rubber stamp. There was no discretion to weigh the impact on victims. There was no discretion to say that granting a pardon in cases such as those involving sex offences against children might not be appropriate, despite the fact that such acts often leave a lasting and devastating scar on the victim, a scar that may never heal.

We heard from victims who, along with many other Canadians, questioned the fairness of a pardon system that would allow sex offenders to virtually wipe the judicial slate clean after as few as three years.

We heard from many Canadians who told us that some offenders should perhaps not be granted pardons at all.

All of this is why our government introduced Bill C-23, legislation that would implement fundamental reforms to help ensure, among other things, that the National Parole Board would have more discretion when reviewing applications for a pardon.

The changes our government proposed, and were approved by Parliament as Bill C-23A, allowed the board to examine factors such as the nature, gravity and the duration of an offence in reaching its decisions for an offender convicted of an indictable offence as well as the circumstances surrounding the commission of that offence, of course, information relating to an applicant's criminal history.

Other changes will mean the waiting period is now 10 years in the case of a serious personal injury offence, including manslaughter, when the applicant was sentenced to two years or more. The waiting period is now 10 years for those convicted of a sexual offence related to a child and prosecuted by way of indictment. Other applicants convicted of a sexual offence, prosecuted by summary conviction, must now wait five years. People convicted of an indictable offence will need to prove to the National Parole Board that receiving a pardon will contribute to his or her rehabilitation and not bring the administration of justice into disrepute.

Such changes are necessary in order to give the National Parole Board the tools it needs to ensure our justice system is not put into disrepute. Because we owe it to all Canadians, especially victims of serious crimes, to ensure that the system puts public safety first and the interests of victims first, we moved quickly and responsibly to bring forward these reforms which are tough but also fair.

Our government believes they were necessary because our justice system must always include compassion for victims.

I would like to reiterate once again that our government is prepared to take further necessary steps to ensure that Canadians can have confidence in our justice system, and that victims of unfortunate serious crimes lie at the forefront of our judicial policy with respect to their protection.

Furthermore, our record reflects our commitment to protecting Canadians, taking action to stand up for victims and cracking down on crime.

I, therefore, urge all hon. members to support Motion No. 514 before us today and to continue to work with the government to ensure we have a pardon system that works the way it should. That is the way a pardon system should work and that is the way the House of Commons should work. I am glad to see in this instance such is the case.

I again thank the member for Surrey North for this great opportunity to speak to Motion No. 514 which is an important issue in my riding as well.