Madam Speaker, it is my privilege to rise today to speak to Motion No. 372 presented by the member for Dartmouth. As hon. members well know, our system of laws is generally intended to serve the common good and all individuals are treated equally before the law.
I also believe there are times when the application of law may lead to unintended or unanticipated consequences for an individual. This may result in the imposition of an undue hardship or an inequity out of proportion to the nature of the offence or of the sentence, for that matter.
It may also be that there exists no other legal remedy to redress such an inequality and inequity in that all legal avenues normally available have in fact been exhausted. When such a situation arises the individual may seek recourse in what is known as a royal prerogative of mercy or clemency.
The royal prerogative of mercy is little understood by the majority of Canadians. Indeed it may not be fully understood by some members of the House.
Historically the royal prerogative of mercy is the oldest form of redress or intervention to right a wrong or correct an injustice. It originates from the absolute power of monarchs, kings, queens and emperors to dispense justice or to exercise mercy. They could sentence someone to prison and they could shorten the sentence if it were considered too harsh. They could sentence someone to death and they could commute that death sentence at will.
Of course much has changed since the time of monarchs who ruled with unfettered power. Today justice is administered under what we know to be the rule of law. The exercise of unfettered authority has been replaced with a system of laws administered by an independent judiciary according to clearly defined procedures that ensure due process for all concerned. That is as it should be.
However, as I said at the outset, there may well be individual circumstances when the rule of law and due process result in unintended consequences and the individual has no recourse but to seek clemency under the royal prerogative of mercy.
In Canada the royal prerogative of mercy is exercised by the Governor General under letters patent which stipulate the powers of that office or the governor in council under the criminal code. The royal prerogative of mercy is not a single remedy. It is not a one size fits all. Rather it can take a number of different forms to address the unique circumstances of an individual.
This is important to understand because when most people think of the royal prerogative they envisage that it somehow implies an individual is exonerated from a guilty verdict and that the sentence imposed by the court is eradicated. That is only true in the case of what is known as a free pardon, which is the ultimate and most rarely granted of the remedies available.
A free pardon is extended only in those cases when it has been demonstrated that somebody is wrongfully convicted, but there is already provision in the criminal code to deal with people who are wrongfully convicted. They may appeal to the Attorney General of Canada for a new trial, for example, under section 690 of the Criminal Code of Canada.
There have been no cases in the past 20 years where a free pardon has been granted to an individual who was wrongfully convicted of a criminal code offence. Recourse has always and was always sought under section 690 of the Criminal Code of Canada.
Another remedy available under the royal prerogative of mercy is a conditional pardon. It too can take different forms. It could, for example, result in the release of people from imprisonment earlier than would otherwise be allowed under the Corrections and Conditional Release Act. However they would remain under sentence subject to the supervision and control of a parole officer.
Another form of conditional pardon could include a remission of the remainder of the sentence, which can only be granted by the Governor General, and the setting aside of the criminal record under the Criminal Records Act.
There have also been many instances where a judicial error or an anomaly in the administration of justice could only be addressed under the royal prerogative of mercy.
For example, it could happen that a court has no record or has lost a record of a fine having been paid thereby rendering an applicant ineligible for a pardon under the Criminal Records Act.
I would like to underline that clemency is granted only in exceptional circumstances and only in very deserving cases involving those who have been convicted of federal offences. It is an ultimate recourse when all other avenues have been exhausted.
It deals with the circumstances of an individual who was convicted and on whom a sentence was imposed, and determines whether that sentence resulted in an undue hardship that was not intended by either the legislators or the judiciary.
Consider also the case of an individual, sentenced to life for second degree murder, who is diagnosed as suffering from a serious disorder of the central nervous system, resulting in paralysis and impaired speech. The medical prognosis is poor and doctors unanimously recommend transfer to a chronic care facility.
Clemency might be granted in such a case because further incarceration may constitute a more severe hardship than would otherwise have been foreseen. It may be that the offender cannot be adequately cared for in a prison setting.
Clemency in such a case might take the form of a conditional pardon resulting in release from prison under the supervision of a parole officer. The guilty verdict still stands and the applicant continues to serve his or her sentence under conditions of parole supervision and monitoring in the community.
The royal prerogative of mercy is exercised according to general principles which have evolved over time and which are meant to ensure a fair and equitable process.
First, the independence of the judiciary must be respected in that there must be stronger and more specific grounds to recommend action that might counter a court's decision.
Second, the applicant must have exhausted all other avenues available under the criminal code or other pertinent legislation. The royal prerogative of mercy is not intended to replace that process.
Third, the royal prerogative of mercy is intended only for those exceptional cases in which consideration of justice, humanity and compassion override the normal administration of justice.
Fourth, and most important, there must be evidence of substantial injustice or undue hardship out of proportion to the nature of the offence or the intended consequence of a particular sanction. In assessing this, each application is strictly examined on its own merits.
Clemency will not be considered where the difficulty experienced by an individual applicant results from the normal consequences of the application of law. It is not a mechanism to review the merits of existing legislation or those of the judicial system in general.
The royal prerogative of mercy is used very sparingly. It is granted only in instances when there is evidence of undue hardship beyond the intended consequences of a sentence and only in cases where there is no other legal remedy. It is unfettered in that it can apply a remedy that is best suited to an individual circumstance.
The motion before us seeks the support of the members of the House for the principle that, in the exercise of the royal prerogative of mercy, the lives of all Canadians must be treated and perceived to be treated equally under the law. The motion also underlines the fact that this should include the lives of persons with disabilities.
If we interpret the motion from the point of view of the applicant for clemency, I would submit that by its very nature the royal prerogative of mercy already focuses principally on the individual. It is concerned solely with the applicant, not with the circumstances of others, be they family members, friends or others in the community.
If the member's motion is aimed at the victim, then I would ask hon. members in the House to consider whether it is appropriate for us to place limits or qualifications on the exercise of the royal prerogative of mercy. I would also ask whether indeed this House has the constitutional authority to impose such limits.
I hope my comments have shed some light on this very important matter. It is a matter of great interest to many Canadians. Clearly, I wanted to be able to outline some of the points that were raised in my speech because I consider them to be important with respect to the motion.