Contextualizing opposition to pardons: Implications for pardon reform
| DOI | 10.1177/1748895818787864 |
| Author | Yoko Murphy |
| Date | 01 February 2020 |
| Published date | 01 February 2020 |
| Subject Matter | Articles |
research-article2018
Article
Criminology & Criminal Justice
2020, Vol. 20(1) 21 –38
Contextualizing opposition
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pardon reform
Yoko Murphy
University of Toronto, Canada
Abstract
Though pardons (record suspensions) have existed in Canada for over four decades, most reform
to the pardon programme has occurred in the last decade. An experimental survey was conducted
to understand whether providing basic information pertaining to crime and criminal behaviour
would affect support for pardons in Canada. Generally, there was no relationship between
responses to pardon-related questions and demographics (i.e. gender, age or education) or most
other standard criminal justice-related questions. Responses to questions on three aspects of
pardons (eligibility waiting times; submission fees; and automatic pardons) were not affected by
whether or not the information condition was received. However, providing respondents with
a small amount of information about sex offence recidivism did increase the acceptability of
allowing those convicted of sex offences to receive pardons. These findings suggest that certain
concerns regarding pardon accessibility could potentially be alleviated by presenting existing
government data to the public.
Keywords
Canada, criminal justice policy, pardons, record suspensions, survey
Introduction
Pardons in Canada serve the purpose of removing records of past criminal offences from
public access. The criminal record is not entirely erased; rather, the record is marked in
police systems as ‘pardoned’ and cannot be revealed in routine background checks. Certain
exceptions apply where a pardoned record is still revealed, such as for positions involving
interaction with vulnerable persons (e.g. children, elderly, disabled). But, essentially, the
Corresponding author:
Yoko Murphy, Centre for Criminology and Sociolegal Studies, 14 Queen’s Park Crescent West, Rm. 257,
Toronto, Ontario, M5S 3K9, Canada.
Email: y.murphy@mail.utoronto.ca
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Criminology & Criminal Justice 20(1)
existence of pardons is an acknowledgement of, and an attempt to remove, the barriers that
a criminal record poses to an individual’s full participation in society. This simple goal has
been a part of the Canadian criminal justice process for over four decades. Pardons were
first debated in Canadian Parliament in 1970, introduced under Bill C-5 (28th Parliament
2nd session) ‘to provide for the relief of persons who have been convicted of offences and
have subsequently rehabilitated themselves’ (McIlraith, 1970: 6860).
Brief history of pardons in Canada
Prior to the establishment of the pardon process under the Criminal Records Act (CRA)
in 1970, the Solicitor General could refer applications for pardons to the National Parole
Board for recommendations five years after the completion of the sentence. Though both
major parties agreed at that time on the purpose of pardons (the elimination of the imped-
iments to full reintegration into society) there was some concern about how best to
accomplish this goal. At the time, it was argued that the pardon application must ‘be
processed without any cost to the person concerned except the cost of the stamp and his
time in writing the letter’ (McCleave, 1970: 6863).
Over several decades, the pardon system evolved minimally. Minor changes were
made in 1992 (the wait time for summary conviction offences) and in 1995/1996 (an
application submission fee of $50 was introduced). However, since 2010, several impor-
tant changes to the pardon system occurred with the introduction of Bill C-23 (3rd ses-
sion, 40th Parliament) in 2010. There were several proposed reforms under C-23,
prompted by concerns that a single person, Karla Homolka – partner of a notorious man
convicted of two murders, some sexual assaults and designated a ‘dangerous offender’ –
who herself had been convicted of manslaughter, would soon be eligible for a pardon. The
bill was split into two parts (C-23A and C-23B) so that the first part could be passed
quickly to delay Homolka’s pending eligibility and still permit proper debate surrounding
the remaining proposed reforms. Specifically, the Limiting Pardons for Serious Crimes
Act (C-23A), passed in June 2010, increased the eligibility waiting period for some
offences, including indictable offences involving serious bodily harm with sentences over
two years of incarceration to be subject to a 10-year wait (MacKay, 2010). Later that same
year, the submission fee for a pardon was increased to $150. In 2011, the Minister of
Public Safety again proposed an increase to the pardon submission fee, this time quadru-
pling the cost to $631. The Parole Board initiated a public consultation (as required by the
User Fees Act 2004) concerning the increased submission fee. There were 1086 responses:
1074 were opposed to the proposed increase and 12 supported it. Nonetheless, the pro-
posed changes went forward as planned in February 2012 (National Parole Board, 2011).
Then, on 13 March 2012, the remaining amendments to the CRA under C-23B
(repackaged as part of the omnibus Safe Streets and Communities Act 2012, Bill C-10,
41st Parliament 1st session) became law. The immediately effective changes applicable
to all pardon applicants were:
•• an increase in eligibility waiting times following sentence completion from three
years for summary convictions and five years for indictable convictions to five
and 10 years, respectively;
Murphy
23
•• ineligibility for those convicted of more than three indictable offences, each with
a prison sentence of two or more years;
•• ineligibility for those convicted of sexual offences involving minors (with certain
exceptions); and
•• a new term of ‘record suspension’ to replace ‘pardon’.1
The pardon system had (and has) been functioning quite successfully; 504,113 par-
dons (and now, ‘record suspensions’) have been granted/ordered up to 2016 (latest avail-
able data), and the revocation/cessation rate has remained under 5 per cent during the
history of the programme (Public Safety Canada, 2017).2 The Parole Board has identified
this as indicative ‘that over 95% of pardoned citizens and those who received record
suspensions have remained crime free’ (Parole Board of Canada, 2014: 65).
Following the law change regarding pardons, a study of a sample of pardon applicants
in 2012–2013 found that applicants largely reflected the offences for which people in
Ontario and Canada were found guilty (Murphy et al., 2015). Generally, they were more
ordinary offences rather than serious violent offences or sex offences – the offences that
had been used to justify the changes in the legislation. Notably, the proportion of violent
offences for which applicants were seeking pardons was the same as in Canadian court
statistics (19 per cent) – the majority of which were minor assaults – but the study sample
had a higher prevalence of impaired driving convictions (33 per cent) than seen in
Ontario (13 per cent) and Canadian (14 per cent) figures. A separate analysis of pardons
found that between 2000 and 2010, about 13 per cent of all pardons granted were for
drinking and driving convictions; of the 20 most prevalent convictions for which pardons
were granted, all but one (assault) were for non-violent offences (McKie, 2011). It can be
inferred that those applying for pardons are predominantly doing so for relatively minor
types of offences, contrary to the fears used to justify the 2012 changes.
In addition, there are safeguards in place to ensure that those granted pardons cannot
take advantage of a cleared record. For example, under s. 6.3 of the CRA, information
pertaining to a past sexual offence conviction will continue to be revealed in criminal
record checks for employment or volunteer positions involving interaction with vulner-
able persons even after a pardon is granted. Furthermore, the Parole Board reserves the
right at any time to revoke a pardon, should the individual be convicted of a future
offence, be deemed to no longer be of ‘good conduct’ or if it is revealed that misleading
information was provided in the initial successful application. There are also circum-
stances where a pardon will automatically cease to have effect, such as if a person is
subsequently convicted of an indictable offence, and thus not require any discretion or
action from the Parole Board.
The proposed CRA changes pertaining to pardons were subsumed in an omnibus bill,
where several other criminal justice reforms were proposed (e.g. increasing mandatory
minimum sentences, restricting conditional sentences). Omnibus bills risk evading ade-
quate parliamentary review of legislation, and certainly the argument can be made that
such was the case with C-10, particularly in regards to pardons. For example, most wit-
nesses were limited, when appearing before the House of Commons committee that
examined the bill, to a five-minute presentation on a bill that was 105 pages long and
covered many quite different matters.
24
Criminology & Criminal Justice 20(1)
In January 2016, the Minister of Public Safety and Emergency Preparedness
stated that the changes made in 2012 were ‘in fact a punitive measure, and […] we
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