The Politics of Criminal Justice Pardons

By Michael Ashby on April 10, 2014

Is it ok to punish a criminal for the same crime twice. Recently, the Supreme Court of Canada said no, ruling that tougher parole-eligibility rules -applied retroactively - violated an offenders’ Charter rights in this respect. 

But what about punishing someone for crimes that were never committed in the first place? Would it be okay to judge a person based on allegations that could not be proven in court? 

I have a client whose pardon (incidentally it is now called a record suspension) was refused based on subsequent charges that were all dismissed or withdrawn. The arrests happened more than a decade ago which means he fulfills the period of good conduct as it applies to the application for a pardon. 

Unfortunately my client, let’s call him John, can’t get a pardon because he was not convicted of those crimes. Since we are supposedly innocent until proven guilty it’s hard to understand the decision. 

In the interest of fairness there is a case precedent which allows the Parole Board to ignore the presumption of innocence when someone is applying for a pardon. This was upheld in federal court. 

In the case of Conille vs. Canada (2003) the Parole Board had refused an application for a pardon because Conille was the prime suspect in an ongoing murder investigation. 

The decision was challenged and Canada’s highest court determined that the Parole Board did not err in appropriate interpretation of Criminal Records Act, s. 4(a) concerning five-year period and concept of good conduct. The court decided the Parole Board was justified in refusing the application because the presumption of innocence has no application in the context of an application for a pardon. 

But surely there is a difference between a collection of very old not guilty verdicts and being the prime suspect in an open murder investigation. 

Like almost all the other people I’ve spoken to , John wants a pardon so he can get a better job. But with these old charges he will not be able to because the Board was not convinced he met the good conduct criteria. 

Apparently those ten year old not guilty verdicts show a disregard for the requirements of Canadian law because they happened after his last conviction took place. 

Granted there were a total of 13 charges which seems like a lot. But what if he had another conviction after those 13? In that case the argument wouldn’t hold up. With just one more arrest his record would be perfectly clean since the last time he was convicted of a criminal offence. 

Besides, when a defendant is found not guilty should it matter how many times that happened or when? And if so what is the threshold to make an innocent man guilty? This does not feel like the same thing as an ongoing murder investigation. 

If you’ve ever looked for work with a criminal record you know that not being able to get a pardon is additional punishment. If you disagree you might consider talking to my friend John who is just trying to take care of his family by getting a decent job. 

Tell John that an ongoing murder investigation is the same thing as a ten year old withdrawn charge. Explain that not guilty means a little bit guilty and that being guilty on all counts, rather than just a few, makes you a better candidate for a pardon and the chance to make things a little bit better for your family. 

Then try explaining that a person who is eligible for a pardon in the eyes of the law can still have his or her application refused if it would bring the administration of justice into disrepute, whatever that means. 

With luck the Supreme Court will answer the following question:  why is an offender’s right not to be punished twice upheld when applying for parole, but his right to be considered innocent until proven guilty is not, when applying for a pardon. 

Of course the two situations aren’t really the same. Parole can pose a very real risk to society. But it’s a risk that society is willing to accept. 

Granting a pardon, on the other hand, carries no risk at all. 

For more information visit the National Pardon Centre website at

www.nationalpardon.org or visit the NPC Montreal walk-in centre at 2000 Peel St. Suite 650

Montreal QC   H3A 2W5 514.842.2411


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