THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Tuesday, June 22, 2010
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-23A, an Act to amend the Criminal Records Act and to make consequential amendments to other acts, met this day at 11 a.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Honourable senators, we have a quorum.
Welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
We are studying Bill C-23A, and we are delighted to have with us this morning the sponsoring minister, the Honourable Vic Toews, Minister of Public Safety. With him, from the Department of Public Safety and Emergency Preparedness Canada, is the Director General of the Corrections Directorate, Ms. Mary Campbell.
You are both familiar witnesses, and we are delighted to have you back. I think the minister has a statement.
Hon. Vic Toews, Minister of Public Safety: Yes, Madam Chair. I appreciate the hard work the Senate is doing in getting this bill heard, and I thank you for spending your time and for your invitation to be here.
Ms. Campbell will be available to answer questions, as will I. Ms. Campbell will have more of a technical background and will certainly be available to answer any of these types of questions.
As honourable senators are aware, it came as a great shock to many Canadians that a pardon was granted to an offender convicted of sex offences against children. The issue of the operation of the pardon system was initially reviewed by one of my predecessors, Minister Day, in 2007. At that time, in response to concerns that he had with respect to the operations of the pardon system, administrative changes were made to ensure more detailed consideration of pardon applications.
However, 99 per cent of pardon applications were approved in 2008-09. This approval rate suggests that the National Parole Board interpreted the Criminal Records Act as requiring it to grant a pardon in all but the most exceptional cases.
Recent media coverage of the case of Mr. Graham James, an individual who received a pardon for a gross breach of trust involving children placed in his care, confirmed the existence of this tendency to the automatic granting of pardons. This decision has highlighted what many Canadians have expressed about a system that allows pardons for crimes of this nature.
A quote from an editorial in the Victoria Times Colonist illustrates this point. It states:
While it means well, the legislation flunks the most basic of tests. It fails to make morally relevant distinctions . . . It imposes the most lax of standards on officials. And it offends our sense of propriety.
Our government agrees. Mr. James' case confirms that the problems, which this government identified in 2006 and attempted to correct with administrative procedures, continue to exist. These administrative procedures have not worked to correct this problem, and therefore we have proceeded with legislative amendments.
The safety of Canadians is our government's primary goal, and that is why our government has acted quickly to take steps to limit pardons for serious crimes, thereby correcting what we believe are unacceptable flaws in the current Criminal Records Act.
The amendments in Bill C-23A recognize that there are morally relevant distinctions between offences, that some offences are more serious and have longer-term consequences for society. Canadians pride themselves on having a justice system that is both fair and balanced. The proposed amendments in Bill C-23A are just that, fair and balanced.
Implicit in the concept of a pardon is that once the pardon is granted, society is removing responsibility for the crime from the applicant. It is important that society's decision in this matter consider the nature of the offence, the impact of the decision upon the offender and the risk associated with the conduct of that offender.
This bill extends the ineligibility period for offenders convicted of serious crimes. It requires them to demonstrate their ability to live as law-abiding citizens for longer periods of time before becoming eligible to apply for a pardon.
It is appropriate that the qualifying period for a pardon should be proportionate to the length of consequences of the offence for which the pardon is being sought. The victims of the offences that are subject to this longer qualifying period will suffer the consequences for the rest of their lives.
These victims have suffered a serious personal injury that was so significant the offence merited a sentence of more than two years in jail. Other victims have suffered the horror of a sexual offence committed while they were children. Everyone on this committee knows that, regardless of whether a sexual offence against a child is a summary or indictable offence — a choice often driven by the prosecution's prospects of conviction and desire to avoid putting a child through trial — the consequences of that offence persist for a lifetime.
The government would have preferred that these offenders would never be eligible for a pardon. However, the opposition parties in the House of Commons would not accept that at this time. Therefore, we have sought to increase the eligibility period for a pardon for these offences. Under this new legislation, individuals convicted of serious personal injury offences within the meaning of section 752 of the Criminal Code will not be eligible to apply for pardon until 10 years have passed since completion of sentence.
Bill C-23A specifically includes manslaughter to ensure that Parliament's intent is clear. The specific offence of manslaughter is not specified as a serious personal injury offence, but by definition, I would submit it would be in any event. Nevertheless, it was specifically inserted in there.
This category covers those convicted persons who are prosecuted by indictment and were sentenced to two years or more — in other words, the most serious cases. Similarly, individuals convicted of a sexual offence against a child and prosecuted by indictment must now wait 10 years before becoming eligible to apply for a pardon, or five years, if prosecuted by summary conviction.
Bill C-23A will ensure that the board has the legislative tools it needs so that, in certain circumstances, individuals convicted of serious crimes cannot derive the benefits of having their records sealed. It will provide the National Parole Board with the discretion it requires to make sound pardon decisions, enabling it to consider more than simply good conduct.
Bill C-23A also places the onus upon the applicant to demonstrate that the pardon will provide a demonstrable benefit and assist in the applicant's rehabilitation. These amendments will allow the board to consider a wide range of factors when considering the application of an individual convicted of serious crimes.
The National Parole Board will consider whether the granting of a pardon will bring the administration of justice into disrepute. In making this decision, the board will consider a number of factors, including the nature, gravity and duration of the offence. The board will also be able to take into account the circumstances surrounding the offence as well as the applicant's criminal history.
The board will have the power, after considering these factors, to deny a pardon to an offender convicted of a serious offence, if it determines that granting one would bring the administration of justice into disrepute.
It is appropriate that individuals who have been convicted of offences with such long-term consequences — serious personal injury offences where a sentence of more than two years has been awarded and sexual assaults upon children — should receive the highest level of scrutiny. The granting of a pardon with respect to these types of offences should, at a minimum, not be automatic.
I am sure the honourable senators will agree that the amendments you are being asked to consider are in keeping with a fair and balanced justice system, the kind that Canadians expect. The pardon system was designed to give those who work to rehabilitate themselves a second chance while continuing to maintain public safety.
With longer ineligibility periods for serious crimes and the more robust decision-making framework for the National Parole Board, Bill C-23A amends the Criminal Records Act to align with what Canadians expect their justice system to deliver, that is, a fair and balanced approach to granting pardons to individuals who have committed to living a law-abiding lifestyle and denying pardons to those who continue to be a risk to public safety.
That is why Bill C-23A would lengthen the ineligibility period for the most serious cases of those convicted of a sexual offence against a child. This will ensure that an appropriate amount of time has elapsed to reflect the severity of their crimes and also to allow offenders to demonstrate their ability to live a pro-social lifestyle over an extended period of time in the community.
We have heard the responses from many victims, including those of Mr. James. As underscored earlier, Bill C-23A will demonstrate to victims of crime that our government respects them, and it will help to show our respect for the physical and emotional injures they may have suffered. It is the least we can offer.
Bill C-23A was the result of a collective compromise in the other place when Bill C-23 was before it. I respect the collaboration of all parties that went into creating Bill C-23A and Bill C-23B, and I know the Senate shares that same spirit. I urge all honourable senators to support quick passage of this bill.
Thank you, Madam Chair.
The Chair: Thank you very much, minister. We go now to questions.
[Translation]
Senator Boisvenu: Mr. Minister, thank you for coming here this morning to discuss Bill C-23A.
As you know, Mr. Minister, we have both supported this bill. This bill was very close to the heart of the association that I used to chair.
My first question pertains to an aspect which the Association of Families of Persons Assassinated or Disappeared felt was essential; namely, the use of the word "pardon".
Initially, we had thought about opting for the expression "record suspension" rather than the word "pardon" or even "clemency". The bill before the Senate still uses the word "pardon" and we also find in the other translation the word "rehabilitation". For victims of crime, the notion of pardon denotes, to some extent, forgetting. It is very difficult for these people to find out that the State has pardoned the criminal when in actual fact this is something that should come from the victim. This is especially true given that our prison system already has a program, referred to as "restorative justice", where the victim and the criminal meet each another and some form of reconciliation takes place between them; a type of "pardon" that is granted to the criminal. As far as we are concerned, these are two steps that are completely disassociated; the fact that the victim can meet the criminal while he or she is still incarcerated and, to facilitate rehabilitation, the victim may understand the action taken by the criminal and, even pardon him or her.
State pardon is a tremendous undertaking when you are talking about 25,000 people — we are not talking about 10 individuals — we are talking about a large number of criminals. For the victims’ standpoint, the State is stepping in and taking on a responsibility that belongs to them.
Why did you refrain from dropping the word "pardon" in the current bill and replacing it with "record suspension", which, in our opinion, would be a more realistic expression?
[English]
Mr. Toews: Before I answer your question, I would like to thank you for sponsoring the bill here in the Senate. Your work on Bill C-23A has been much appreciated, and your voice adds credibility to the bill that many of us cannot bring to the table. Thank you very much for your support with this bill.
As you are aware, the bill has been split into two parts, 23A and 23B. I have brought forward certain aspects of Bill C-23A that reflect the compromise we were able to achieve in the House of Commons in respect of Bill C-23. There are other issues on which we could not achieve a compromise bill in the other place, and one of them is the issue of how we refer to this act by the state.
At present, and Bill C-23A continues this, it is called a "pardon" — with the French equivalent that you have indicated — as opposed to the "record suspension" that we had originally proposed in Bill C-23.
Record suspension continues in Bill C-23B, and we will continue that in the fall. We have not given up on that particular issue. I happen to agree with your point of view that the issue of personal forgiveness is not something for the state to do on behalf of victims. As you have so eloquently stated, that is something victims do. The state has certain roles in assisting the rehabilitation of convicted individuals, and I believe the term "record suspension" more appropriately reflects the role of the state in that process.
I agree entirely with your comments. This is not my choice. However, it is out of respect for the parliamentary process that we brought Bill-C23A forward, but I can assure you that our government is committed to bringing forward Bill C-23B, which addresses the issue you have identified.
[Translation]
Senator Boisvenu: Mr. Minister, I am surprised by the statistics in the bill. At the outset, people thought that 90 per cent of all criminals would lose their right to a pardon when in fact barely 10 to 15 per cent will be affected by these measures.
How, in you view, are Canadians responding to this bill?
[English]
Mr. Toews: I am not exactly sure of the numbers. I do not know, Ms. Campbell, if you can add anything to that. All I can say is that receptiveness of Canadians to Bill C-23A itself was overwhelming.
Obviously, there will be many who are disappointed that we have not brought forward the entire package at this time; but as you know, there are many reasons why that could not be accomplished. I am disappointed, but I am still anxious to proceed in the fall with the remainder of the initiatives we brought forward.
Mary Campbell, Director General, Corrections Directorate, Public Safety Canada: Just to clarify, senator, the 98 per cent figure means that 98 per cent of those people who apply for a pardon and are eligible do receive one. It is not 98 per cent of people with a criminal record across the country.
I understand the parole board may be appearing this afternoon and might have further information on the statistics.
Senator Carstairs: I am confused when I read the Criminal Code and it makes reference to pardons of a variety of types. It always indicates that the final responsibility for those pardons rests with either you, as the Solicitor General, or with the Minister of Justice; yet we seem to have a situation in which you do not seem to have the final authority. Where is the breakdown?
Mr. Toews: As I understand, the authority arises in the Criminal Records Act. I do not believe that I have any independent authority as the Solicitor General to impose pardons.
I do not know whether there is some prerogative authority of the Crown that you might be referring to in the Criminal Code, which is a separate issue. For example, even if under Bill C-23B we were to ban completely the ability of certain individuals to apply for pardons — for example, those who sexually abuse children — there would still ultimately be the Crown prerogative. Perhaps Ms. Campbell could explain further.
Ms. Campbell: The Criminal Code refers to what we call clemency pardons or Royal Prerogative of Mercy pardons, whereby the Governor-in-Council and the Governor General are given certain pardoning powers; but they are quite different from the pardons under the Criminal Records Act.
As the minister indicated, a Criminal Records Act pardon seals the record. It does not change history; it simply seals the record. The clemency pardons under the Criminal Code and under the Royal Prerogative are much more sweeping in their effect and are quite separate.
Senator Baker: I have just two basic questions. First, minister, I have to congratulate you on the amount of legislation that you are putting through Parliament. You certainly are setting a record for the department that you are administering. I would also like to congratulate Senator Boisvenu for his active participation.
On the most serious offences, which trigger a 10-year wait after the suspension of any conditions that are attached to someone's jail term, you mentioned the offences covered in section 752 of the Criminal Code and also in the attached schedule at the back.
I do not know whether there is any way you can get around it, unless you had specifically removed sections of 752. Under section 752, for example, common assault, section 266, is covered; section 344, theft, break and enter, is covered, as well as all of the more serious offences. You do qualify that by saying "in the case of serious personal injury in the commission of those offences," but serious personal injury has been defined as something that is not fleeting in character. If you gave someone a black eye, that would be fleeting but you can be guilty of common assault. However, if you broke the person's back, that would not be considered serious, unless you took section 752 and separated all of the very serious offences from common assault, break and enter and those sorts of things.
My second question relates to the standard that the parole board would use in refusing a pardon; that is the words "would bring the administration of justice into disrepute," which is a very high standard, as you know, minister. However, my question is a technical one.
I will reference one case here — 2005 Carswell Alberta 651. The judge says at paragraph 85 — this is a common reference — that the word "would" in the English version is "could"" in the French version. They are talking about section 24(2) of the Charter and the phrase "would bring the administration of justice into disrepute." The French version, according to what has been established by the Supreme Court of Canada, is "could," which is a lower standard.
This judge goes on to say that because this is exclusion of evidence, he has to apply the standard that benefits the applicant. Therefore, he applied the lesser standard of "could bring the administration of justice into disrepute."
Bill C-23A has the exact same problem with interpretation. The English says "would"; and the French says "susceptible," which has been defined as "could." Has the department given any consideration to putting the word "could" instead of "would" in the English version to bring both the French and English into play? It would allow more leeway for the National Parole Board in meeting the purpose of the bill.
Mr. Toews: Let me deal with the first issue that you have raised; both are excellent points.
Regarding the issue of serious personal injury, in the course of negotiations, one of the political parties brought that to the table as a compromise. The same party came back later and said, "We are a little concerned that it is over-inclusive." Then they came back and said, "What if we then say that the person has to receive a sentence of two years or more?"
That is how we get around the issue of excluding the minor crimes — if I can call a crime a minor thing — by that two-year sentence issue. You put your finger on an important point. I believe it has been addressed that way, and all four political parties were able to agree on that basis.
In respect to the issue of bringing the administration of justice into disrepute, this was very specifically taken out of the Charter and used because the courts apply this on a daily basis. Since there was the same discrepancy between "would" and "could" in the English and the French in the Constitution, and the courts have been able to resolve that in one way or another without setting a different standard of justice for a French applicant as opposed to an English one, we believe that the same thing can be done in this context.
I think it would create a greater difficulty if you now changed that standard in the French to reflect what should perhaps more properly be the word. Quite frankly, I am prepared to leave that to the board, in the same way we have left it to the courts to interpret it in a consistent fashion. I believe they would be subject to some kind of a review if they said well unfortunately you are French and the standard is higher or lower. That obviously would not be acceptable.
I would prefer not to monkey with the word, given that there is a long history of dealing with it. I believe the interpretations in both French and English have been reconciled.
Senator Baker: In other words, the French is usually the correct version. Thank you.
The Chair: That is absolutely fascinating.
Senator Joyal: With all the fairness of my colleague Senator Baker, the French version of the Charter uses the present tense instead of the conditional in English. If I read the French version of section 24(2), it says quite clearly:
… s’il est établi, eu égard aux circonstances, que leur utilisation est susceptible de déconsidérer l'administration de la justice.
[Translation]
… if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[English]
The literal translation is "is susceptible," which is the present tense. In English we have a different tense. It says:
. . . the admission of it in the proceedings would bring the administration of justice . . .
It is a different standard. One is in the future. In French it is the present, so there is a nuance between the two, Mr. Minister. I am not here to impose on you a test on the bar.
Mr. Toews: I am not here to suggest an amendment to the Constitution. I am simply applying a standard that has been applied in that context in a consistent fashion. The case Senator Baker pointed out illustrates the problem in interpretation whenever you are dealing with two languages. I am satisfied the courts will reconcile that.
Senator Baker: Or the National Parole Board will have to reconcile it.
[Translation]
Senator Carignan: I would like to go back to this matter of interpretation. When there is a difference between the French and English version, the rule is that the courts do not limit themselves to the literal sense of the words, but rather try to understand the legislator’s intent by looking at the context. They can even read the deliberations of Parliament in order to establish the intent of the legislator.
Could you quickly explain, in your own words, your intent with respect to the use of the criteria that would bring the administration of justice into disrepute?
[English]
Mr. Toews: Without getting into too many of the technicalities, perhaps one of the constitutional lawyers from the Department of Justice can get into that explanation. I believe they are called to be here at a later time and would be the appropriate individuals to talk about that.
We struggled with the issue of what kind of criteria to give to the board when we say to the board that it may grant a pardon. Obviously, it is permissive, it is empowering; but what are the criteria? We could not figure out what kind of criteria to grant, especially in this type of situation where we are not dealing with the guilt or innocence of an individual. As the editorial from the Times Colonist pointed out, we are dealing with almost a moral issue, and the criminal law is imbued with moral distinctions and moral issues regardless of what individuals say about the criminal law. There are those distinctions.
You have to go to some kind of a standard or rule that then gives the board the discretion — a legal standard and yet flexible enough to take into account a myriad of factors without listing them all. I was involved in that discussion, and we suggested "bringing the administration of justice into disrepute." That is a standard that has some 20 years of interpretation by the courts and yet is flexible enough to take into account the many types of issues that would arise in this kind of consideration.
Therefore, the board's consideration of a standard would not be vague; it would not be overly technical; and there would be some legal basis upon which to measure it if there were ever a judicial review. We are trying to empower the courts, but under the present legislation, when the board is met with an application, because there are no criteria, as long as the person has been of good conduct and has served the sentence and waited the appropriate period of time, the board basically shall provide it; it rubber-stamps it.
We wanted to add some more criteria and flexibility for the board so that in these cases where an ordinary Canadian citizen would say this is patently unjust or this is patent nonsense, it brings the administration of justice into disrepute; we use that phrase in order to capture that kind of spirit. However, that is about as close as I can get.
We could set out 20 criteria, but I believe this one single phrase captures it quite nicely, subject to the issue of the French and the English, which I believe is being resolved by the courts, if it has not already been.
[Translation]
Senator Carignan: The criterion of bringing the administration of justice into disrepute is one that is known to the courts. The action must be offensive, that is to say it must offend the public.
The bill establishes criteria as regards what brings the administration of justice into disrepute. Reference is made to the perpetration of the crime, the period of time over which the crime was perpetrated and various other elements, and there is also room for other criteria that will be established through regulations. So that leads us to believe that there will be regulations forthcoming which will clarify what is meant by "bringing the administration of justice into disrepute".
The courts are used to applying this criterion, but the National Parole Board — which obviously is a tribunal specialized in parole — does not have this tradition of assessing whether or not something brings the administration of justice into disrepute and this board is used to hearing all kinds of stories. Accordingly, it is more difficult for them to be shocked when it comes to matters that may bring the administration of justice into disrepute.
Has any thought been given to providing the National Parole Board with guidelines or special training in order to explain the change in culture? We want public perception to be an important part of the decision.
[English]
Mr. Toews: You are quite right. There are distinctions between a superior court interpreting a provision of the Charter — section 24, I believe it is — and a parole board, which is an administrative tribunal with a specialized jurisdiction. Your reference to shocking Canadians or shocking the conscience of the nation sort of does the same thing; it is that same similar type of thing. Those types of things can be developed in policies and in the interpretation of policies.
Those policies would be subject to review by the courts should there be a judicial review saying you are applying too high a standard, but in all of these administrative tribunals, certainly the administrative tribunals I am familiar with, the tribunal itself has developed policies in order to assist it to apply a specific provision so that it is done in a consistent manner, and that can be done in this context as well, I am advised. I would have to defer to Ms. Campbell or to the Department of Justice lawyers regarding the specific legal authority, but I am certain that can be done.
The Chair: In the interests of using your time, we will ask Ms. Campbell to hold her answer until later this day.
Senator Joyal: My question is along the same line of reflection. When I read proposed section 4.1(3), in clause 3 of the bill, I understand that the criteria that would bring the administration of justice into disrepute include the following:
(a) the nature, gravity and duration of the offence;
(b) the circumstances surrounding the commission of the offence;
(c) information relating to the applicant’s criminal history . . .
(d) any factor that is prescribed by regulation.
Are those regulations adopted by you or by the commission, or the Governor-in-Council? Is it the usual process of adopting regulations under laws that have a criminal impact?
Mr. Toews: That is correct. As a general rule, the board would draft the regulations, and then they would go through the regulatory process. As I understand, the board would not have the powers to adopt those regulations by itself.
Senator Joyal: That was my impression, but it is better to have it on the record. Mr. Minister, you will understand why.
I have a second question in relation to that. The phrase "any factor that is prescribed by regulation" is very vague. It is an open door to anything, including, as you said, maybe moral influence. Senator Carignan has put it in different terms, stating that the board has seen so many horrible things that the members are more or less immunized against a scandalous reaction to a horrendous crime.
However, I will read the decision of the court in Calder, 1996, to give an example of what Senator Carignan mentioned. The court said "it is not the carefully instructed juror who is the arbiter of the effect on the administration of justice but rather the well-informed member of the community." In other words, it is not the reaction of a member of the parole board who has seen everything that is the test; it is the reaction of the well-informed member of the community that is the test, according to subsection 24(2) of the Charter.
My reaction would be that, in establishing those factors that you would have the authority to adopt or to proclaim through regulations, you would be framed by jurisprudence that has happened in the past in interpreting section 24(2).
What factors has the jurisprudence in the past pinpointed or identified that you should be taking into consideration when adopting those regulations? We do not have those regulations before us today.
Mr. Toews: Your comments are very helpful. Essentially the phrases you indicated — nature, gravity, and duration of offence, circumstances surrounding the offence — all go to define what is bringing the administration of justice into disrepute. It grounds it to a greater extent.
However, there is the last point: "any factor that is prescribed by regulation." It is not even that it is determined by past jurisprudence; it also has to be consistent with the act. This act would be the primary guide for a court, in my opinion, in determining what factors you could prescribe by regulation. If the factors were too broad or irrelevant, the regulation would be ruled ultra vires the act. You will see that kind of broad factor in most administrative tribunal regulation-making authorities. That has often been limited to administrative matters or to issues that are clearly consistent with the principles and the purpose of the act.
Beyond that, I would not want to say at this time. Perhaps one of the lawyers would be able to give you further guidance on that. However, it is not that the Governor-in-Council could suddenly say, "Well, we do not like the idea that an individual for this type of offence is eligible after five years" and then say, "In this case, we will make it seven or ten years," when the act itself specifically says five. It would have to be consistent with the principles of the act.
Senator Joyal: I totally agree with you. The regulations cannot go beyond the purpose of the act; they cannot go beyond the authority that is granted to the minister within the confines of the Criminal Records Act.
On the other hand, the minister does not have an open door to set into that criteria that, in my opinion, would go much beyond what the jurisprudence has given us in interpreting section 24(2). The exact same wording exists in the Charter, so you are Charter-bound in defining those factors, in my opinion, within of course the confines of the act, which is another limitation, but within also the Charter parameters of the court interpreting what we understand or what we should understand in terms of the administration of justice.
As I said in the example I have just given you, who is the judge? Who is the person in front of the situation to react? Is it a member of the board or is it a well-informed member of the community, as the court has stated?
Mr. Toews: I think you are right; it is a well-informed member of the community. One of the interesting things about a tribunal like this is the limited terms that most individuals serve. Unlike judges, they do not serve till age 65 or 75 — or with no limitation at all for provincial judges in Manitoba, who can go on forever. I think it is an attempt to achieve immortality, and I am not so sure it has succeeded.
Senator Joyal: We had that in the Senate before.
Mr. Toews: With the limitation on the terms, generally speaking, and new blood going in there on a regular basis, I dare say even the members of the board will be shocked from time to time and convinced that something will bring the administration of justice into disrepute.
The point is that it has to be some kind of objective level; it is not simply a personal reflection of an individual's own standard. We are trying to provide an objective standard and yet give the board flexibility to deal with this.
"Any factor that is prescribed by regulation" obviously has to be consistent with the principles of the act and will be interpreted much more narrowly than the other powers, I would say. That is just generally the way it is done in these regulatory-making powers where there is a broad statement like this. Some acts say it can refer only to administrative kinds of issues. In this type of context I do not think it would be limited only to administrative considerations, but it will be limited and consistent with the act.
Senator Wallace: Thank you, minister, for your presentation. As you pointed out in your comments, as it relates not only to this bill but also to other criminal legislation, there is that need to find the balance between protecting the rights of our citizens, protecting society and, at the same time, properly addressing the rights, in this case, of the convicted.
What comments do you have as to how Bill C-23 deals with that balance? Does it in any way change the balance that currently exists? What are your thoughts particularly about any additional protection it may give society?
Mr. Toews: I think it dramatically changes the balance into a more balanced position. Frankly, the board in context is exercising its power to grant pardons today under the existing legislation and is following an administrative rather than a judicial process. Once a person has been convicted of a certain offence, has served his or her time and has served the waiting period, the board essentially rubber stamps 98 per cent of the cases. I do not know why the other 2 per cent are not granted. Is there some failure to meet the appropriate waiting period? Has the individual been charged with an offence between the end of his or her sentence and the expiration of the three-year or five-year waiting period? It could be all of those technical reasons rather than exercising any kind of judicial discretion.
In my opinion, subject to what Ms. Campbell or the justice lawyers might say about that 2 per cent, this is an administrative function, so there is no so-called balancing that goes on. It is essentially done when the criteria are met.
This bill recognizes that there is an impact upon victims that the old act never recognized. That is an evolutionary thing. I will not criticize the people who drafted the current act many years ago because, frankly, when you and I started practising law, victims were a fifth wheel in the whole process, not really necessary and often a nuisance was the general perception.
Over the last 30 years, that has changed dramatically, and I say for the better, and we recognize that a crime has been committed not only against the state but also against an individual, and that individual needs to be brought into the process in order for there to be an appropriate reconciliation. The state has its interests, and the victim has his or her rights. This tries to balance the entire system to give a new and stronger voice to the victim.
Certain types of crimes are committed by individuals who we recognize are difficult to rehabilitate. I do not speak from experience as much as I do from the literature and the witnesses I have heard over the years, especially serial offenders against children. That is why I think the original bill took that strong stand against those who commit sexual crimes against children especially.
It has been a difficult bill in terms of trying to balance these matters. I was quite convinced that the original Bill C-23 had an appropriate balance. I know one issue some of the opposition parties were very concerned about was the issue of banning a record suspension after the conviction of four indictable offences. I have to admit, that issue has caused me some concern as well.
What is the appropriate number of indictable offences? Should it be just a number of indictable offences? Should it be over a period of years that they have been committed? As you know yourself, a 20-year-old young man might commit 20 break-and-enters in the course of a short period of time. Bill C-23 would ban that pardon and that record suspension. Those are the kinds of concerns that were brought to the discussion when I worked with the other three parties.
Some of those issues have been deferred to the fall, and we will be able to determine whether the original framing of the proposed legislation was appropriate or whether there should be additional flexibility. I am much more open on that particular issue than I am on the issue of the sexual offences against children.
I take a very strong stand against that. As a prosecutor, usually you find out how difficult it to its to prosecute those kinds of offences, with the difficulty of putting children on the stand, not only the evidentiary problems but the psychological problems as well. You will often look at the child and ask yourself whether you will put a 5-year-old child on the stand to testify in these situations when the accused is offering a deal that he will plead out on some other less serious offence. Often those deals are made because of the concerns about the child. Therefore, I say when you get those convictions, society should deal with them very strictly.
Senator Wallace: Minister Toews, as you pointed out, the bill does place the onus on the applicant to satisfy the board that receiving a pardon would be a measurable benefit to the applicant that would sustain his rehabilitation in society as a law-abiding citizen. The onus is on the applicant. Is that a change from what currently exists? Why is that important?
Mr. Toews: It was not quite addressed in the old legislation, as I understood it. I see it as very important. If we see pardons or record suspensions as somehow being a process by which to assist in the rehabilitation, should the individual who is requesting this not demonstrate that it will assist in his or her rehabilitation?
I thought it a very necessary part of the process so that applicants do not simply think they have served their time and so are entitled to a pardon. Society says they are not entitled to it. They are entitled to make an application, but they must demonstrate that they are worthy of it. That is why the onus is placed upon the individual.
I think it is very much in keeping with individuals who no longer have the presumption of innocence working in their favour. Those individuals have been convicted; there is no presumption of innocence. In fact, the only presumption that exists is that they are guilty, that they have committed the offence and they deserve to have a record for the rest of their lives unless they can demonstrate that this pardon or record suspension will somehow assist in their rehabilitation, and the onus should be on them, not on society.
Senator Lang: When the bill was presented in the Senate, I was quite surprised to learn that there was minimum debate on the bill in the House of Commons for the public record. I am pleased to see the bill here so that at least it gets a public airing, and Canadians who are interested get to hear your point of view directly and review the bill and the technicalities of it.
I think it is past time that our justice system is reviewed. From this point of view, Canadians have learned that to have a pardon right now under existing legislation is just a rubber stamp. It has been quite a shock to Canadians.
I would like to go into another area, which is the parole board itself. The changes being made and the responsibility being given to it are significant. With this new responsibility, will the parole board be given new resources, or will it be able to cope with this added responsibility? Perhaps you can give us an overview of that.
Mr. Toews: On your first point, the discussion we are having here today is very helpful for the remaining discussion that will take place in the fall. It is very important. Comments made here today by members of both parties have been helpful in helping me to formulate my thoughts as we go forward. I appreciate the efforts and the obvious work senators have put into considering this bill, and I want to thank each of you for that.
First, yes, the parole board will be given additional resources. Ms. Campbell will be able to talk about that at a later time.
Second, I also want to point out how highly qualified most of the members of the parole board are, if not all of them. Rigorous testing happens before an individual is eligible to be considered for appointment. Written tests and oral interviews are conducted. I am not sure who conducts them, but I think it is the chair and members of the parole board. It is a fairly high standard that is consistent with many of the judicial affairs committees that consider provincial judges or even federal judges.
I am glad to see there is a high standard that these individuals have to reach now that we are giving them additional, more quasi-judicial functions as opposed to simply administrative functions in this context.
The Chair: Minister Toews, thank you very much. We have covered a lot of ground in a short period of time, and we are grateful particularly because, as Senator Lang said, the House of Commons did not hold committee hearings on this bill.
Senator Baker: There is no second round for questions?
The Chair: Not with the minister. I am sorry; it is out of my hands. We are suspending until 1:30 this afternoon.
(The committee suspended.)
(The committee resumed.)
The Chair: Honourable senators, we are resuming our study of Bill C-23A, An Act to amend the Criminal Records Act and to make consequential amendments to other Acts.
We are now pleased to welcome back to this committee on this bill, from the National Parole Board, Harvey Cenaiko, Chairperson; Ms. Shelley Trevethan, Executive Director General; and Denis Ladouceur, Director, Pardons and Clemency.
[Translation]
We would also like to welcome Mr. Denis Ladouceur, who is the Director of Pardon et Clémence. Welcome. We are delighted to have you here.
I believe that you have an opening statement, Mr. Cenaiko?
[English]
Harvey Cenaiko, Chairperson, National Parole Board: Thank you for inviting me to speak to members of the committee today. Given that I appeared before you recently on another bill, you are aware of my background and experience within the criminal justice system. Therefore, I will launch directly into the substance of my presentation.
To assist you in your study of Bill C-23A, I will provide a brief overview of the existing system, its objectives and its outcomes. Throughout my remarks, I will also address some of the issues and questions that have emerged publicly over the last two months about the pardons program. Finally, I will share with you some of the ways the bill would impact the board's operations, should Bill C-23A receive Royal Assent. We have provided handouts, including statistical information and sample pardon application guides.
As you may know, the granting of pardons to individuals with criminal records is not unique to Canada. Other jurisdictions, including Australia, New Zealand, the United Kingdom, Belgium and Germany, have pardon systems in place that share the same broad objectives. Each system, of course, has its own set of rules and eligibilities.
Here in Canada, the current pardon system was introduced 40 years ago. The fundamental principle underpinning the system has not changed since that time. The aim is to reduce the barriers and stigmas faced by an individual with a criminal record if he can demonstrate a commitment to live as a law-abiding citizen. The program has a dual benefit: to assist the individual to move forward in his rehabilitation and to enhance the safety of communities by motivating the individual to remain crime free and to maintain good conduct.
Since the pardon program was introduced, interest in securing a pardon has grown. This is in part because the number of Canadians with criminal records has increased. Also, more scrutiny is placed on an individual's past when applying for a job, securing a loan, volunteering in the community, getting certain licences or furthering an education.
According to the 2006 Census, approximately 3.3 million Canadians have a criminal record. More than 400,000 Canadians have received a pardon, representing approximately 10 per cent of Canadians with criminal records. A small number of pardons have been revoked over the years. The vast majority, about 97 per cent, remain in force.
I will speak about grant rates and revocations later in my presentation, as this topic has been the subject of considerable public interest and comment.
First, I would like to give you a few definitions and briefly outline the mechanics of the current process.
The National Parole Board is the only organization that can issue, grant, deny, revoke or cease a pardon under the Criminal Records Act. Each of these words has a specific meaning under the act. For instance, a pardon for summary offences is issued, whereas a pardon for an indictable offence is granted, reflecting that they are processed differently. The word "pardon" also has a specific meaning. Many people tend to use the words "pardon" and "clemency" interchangeably, but in Canada there is a difference.
Briefly, the Royal Prerogative of Mercy, or RPM, is a discretionary power based on the ancient right of the British monarch to grant clemency. In Canada, this is exercised by the Governor General or the Governor-in-Council.
Individuals who are not eligible for a pardon under the Criminal Records Act may choose to seek clemency; however, clemency is granted rarely and only in deserving cases involving federal offences. There must be clear evidence of substantial injustice or undue hardship that is disproportionate to the nature and seriousness of the offence committed and more severe than for other individuals in similar situations.
Clemency is not a way to circumvent other existing legislation. The role of the board in clemency cases is to review applications, conduct investigations at the direction of the Minister of Public Safety, and to make recommendations to the minister regarding whether to grant the clemency requests. In the past five years, five individuals were granted clemency under the RPM, though many more have applied.
The bill before you today deals with pardons and not clemency. Still, it is reasonable to expect that the proposed legislation, if passed, will result in more applications to the National Parole Board for clemency. This will have an impact on our resources, though it is too early to know the extent.
Now I will turn back to the current pardon system. Before a person who has been convicted of an offence under a federal act or regulation can apply for a pardon, he must first carry out his sentence. All imprisonment and conditional release periods must be completed, all fines must be paid, and any probation orders must be satisfied. This means, of course, that offenders serving life and indeterminate sentences are not eligible for a pardon under the Criminal Records Act.
Once a sentence is complete, the person must also wait for a specific period of time before applying, which is three years for summary convictions and five years for indictable convictions. A person can apply if he is living outside of Canada.
There is no significant advantage to filing a pardon application through a private sector pardon company. The board treats all applications the same way. It is less costly for an individual to follow the straightforward application steps on his own and deal directly with the board.
A person has to obtain a copy of his criminal record, verified by fingerprints from the RCMP. This typically costs $25. The applicant must also obtain a current local police records check. The police are given an opportunity to provide further information or comments at this stage on the application form for the board to consider. The board relies on the quality of information it receives from police and other sources at all stages of the process.
The applicant then submits his completed application to the board, along with a $50 processing fee. The board retains $35 of that amount, and the RCMP receives $15 for the work they undertake in the process. Only the fees of applications accepted for processing are kept.
What exactly is the effect of a pardon? In practice, a pardon means an individual's criminal record is kept separate and apart from other criminal records. All information about the conviction is taken out of the Canadian Police Information Centre, CPIC, database and cannot be disclosed without approval from the Minister of Public Safety. This applies only to records kept within federal departments and agencies; however, provincial and municipal law enforcement agencies generally cooperate by restricting access to records. The records of sex offenders are flagged in the CPIC system to ensure a pardon is not used as a shield to access new victims.
I spoke earlier about why an individual may need a pardon: to secure employment and reduce reliance on social programs, to get a licence and start a business, or to get a loan, for example. A pardon also has limitations. For instance, many foreign countries, including the United States, do not recognize a Canadian pardon. A pardon does not guarantee entry or visa privileges to another country, and a pardon will not cancel driving or firearms prohibition orders.
As I mentioned earlier, by law, a pardon for a summary conviction and a pardon for an indictable conviction are processed differently. Pardons for summary convictions are non-discretionary. The board must issue a pardon to an applicant after he has satisfied his sentence, complied with the waiting period and remained crime free.
In terms of pardons for indictable convictions, the Criminal Records Act specifies that the board may grant a pardon if the applicant has satisfied his sentence, has remained crime free for five years and has been of good conduct. Good conduct is behaviour that is consistent with and demonstrates a law-abiding lifestyle. The board grants a pardon when there is no evidence from law enforcement agencies that the individual has been involved in suspected or alleged criminal behaviour since his last conviction. Investigations include information exchanges with courts and local, national and international police services; verification of police databases; and any additional investigations as required for the board member to make a decision on a particular case. The board heavily depends on information sharing with our criminal justice partners.
The information received can sometimes include incidents that resulted in a charge that was subsequently withdrawn, any record of absolute or conditional discharge, convictions under provincial statutes, alleged criminal behaviour, information from victims, applicant representations, et cetera. In the case of sex offences prosecuted by indictment, the board makes additional inquiries with police services.
Under law, the board must consider all relevant, reliable and persuasive information received. If the board receives information about suspected or alleged criminal behaviour, it considers the information and determines whether the pardon should be granted or denied.
Decisions are made by one board member, unless the applicant has been convicted of a sex offence prosecuted by way of indictment, in which case two board members will make the decision. The chairperson also has the discretion to have any pardon application reviewed by more than one board member.
If a person is denied a pardon, he can reapply after one year.
If a pardon recipient is convicted of a new offence, the pardon automatically falls away and the criminal record is reactivated. If there is evidence that the individual was not of good conduct, the board may also revoke the pardon.
To give you a sense of processing activity, volumes and outcomes, I will share some statistics from the 2009-10 fiscal year. That year, the board received just over 32,000 applications. Of these, the board accepted almost 25,000 for processing. This means about 7,000 were ineligible or incomplete or were withdrawn.
It is not accurate to say the board pardons virtually all applicants. First, there is a degree of self-selection that takes place, meaning that the kind of individuals who apply tend to be the ones who are actually eligible. Even then, the board generally rejects out of hand approximately 25 per cent of the applications that come in.
In 2009-10, the board issued almost 8,000 pardons to individuals who had a criminal record for summary offences. As you know, summary offences are less severe than indictable offences and are typically punishable by a fine of up to $5,000 or six months’ jail or both. The vast majority of offences are drinking and driving, assault, theft and drug-related crimes.
The board also granted over 16,000 pardons to individuals with criminal records for indictable offences. As with summary offences, the vast majority are for drinking and driving, assault, theft and drug-related crimes.
In 2009-10, the board denied a total of 425 applicants who were seeking a pardon for indictable offences. The board denied them because the applicants were found not to be of good conduct.
That same year, almost 900 pardons were revoked or ceased in 2009-10. These pardons may have been issued or granted at any time in the past 40 years. Pardons are revoked if a person is convicted of a summary offence, the person is no longer of good conduct or the board learns that a false statement was made when the person applied. A pardon can be ceased if a person is convicted of another crime or if the person was not eligible for a pardon when it was first granted or issued to him.
I will end my description of our operations here and focus on certain key issues of possible interest to the committee. I will also expand on what the proposed amendments to the Criminal Records Act would mean for the board.
The most significant change for the board under Bill C-23A would be the requirement to determine whether the granting of a pardon for a serious offence would bring the administration of justice into disrepute. This measures different factors than good behaviour in the community since an offender's last conviction. Board members will determine this by assessing the nature, the gravity and duration of the offence; the circumstances of the offence; and the criminal history of the applicant.
All board members are highly trained in decision making involving complex cases. Any board member may be called upon to make a pardon decision, though most are currently made by members of the appeal division here in Ottawa. Members will require additional training in the new criteria for decision making as set out in the new legislation. This increased discretion will increase the complexity of our decision making and will require additional resources. The government has stated that it will seek to have applicants bear the full cost of the pardons program.
Another new requirement under Bill C-23A will be for applicant to satisfy the board that the pardon would provide a measurable benefit to the applicant and sustain his rehabilitation into society as a law-abiding citizen. We will modify our operations to take this new information into account.
The bill would also introduce modifications to the waiting periods for certain offences. A person would be ineligible for ten years instead of five if he had committed an indictable sex offence, manslaughter or a personal injury offence described in section 752 of the Criminal Code. Also, a person will be ineligible for five years instead of three if he had committed a sexual offence tried summarily. Again, we will modify our operations to take these new eligibility periods into account as we process files.
When it comes to applications from individuals who committed serious offences, including indictable sex offences, the board performs additional inquiries with our criminal justice partners. Under the new legislation, the board will be able to perform more rigorous assessments of sexual offenders who have been tried summarily.
Turning to matters of accountability and transparency, the purpose of the process is not to retry an individual, nor is it to hold another parole hearing. The current law intends for an eligible applicant to account for his good conduct in order to formally progress to the next stage in his rehabilitation.
Society in turn benefits from a net gain in the form of crime-free behaviour. Given the nature of the exercise, it stands to reason that the personal information of the applicant is protected under both the Criminal Records Act and the Privacy Act. Divulging that an applicant has applied for or has received a pardon, thereby revealing a conviction, would defeat the purpose of the pardon. However, keeping with the intent of the pardon system, mechanisms are in place to safeguard society by nullifying a pardon if he is convicted of a new offence or additional information about his conduct is brought to light.
The board also ensures it is accountable under the law by considering all reliable and persuasive information and for making decisions when it grants or denies a pardon. Under the current system, victim information is taken into account by board members as part of their assessment of a file. Any impact statements or letters of complaint contained within a file are made available to board members. This information is forwarded to the board and held on file for assessing good conduct as the pardon application is in process. In addition, under the proposed legislation, victim information and nature of the crime will be considered by board members when they assess the merit of a request.
Before I end my remarks and take your questions, as you know, our role as a tribunal requires us to retain our neutrality and rely on evidence-based approaches in our work. The board is not an advocacy body; we exist to apply the law. Given the nature of our business, we understand why we may come under public scrutiny and receive criticism. Nevertheless, our focus will always remain on fulfilling our duties under the law in the manner that Parliament expects. The board will adapt to changes to the law when they are put in force. Laws change over time to reflect changes in society. We will continue to aim for the highest quality in our decision making and strive to make our operations as effective and efficient as possible, always in the service of Canadians.
Thank you very much for your attention and your time, and I would be more than willing to answer any questions you may have.
The Chair: Thank you very much indeed. That was very helpful.
Senator Baker: First, this bill will add a whole new area of adjudication to the National Parole Board. I am sure you would agree with that. In determining whether a pardon shall be granted, there are three places in this bill that reference the standard of "would bring the administration of justice into disrepute."
Have you made plans for dealing with this new type of adjudication that you are about to make? Have you actually sat down and decided how many lawyers you will hire and how you will carry out the new adjudication process?
Mr. Cenaiko: That is a very good question, Senator Baker. The board is made up of members of the community who come from varied backgrounds. They are appointed by the Minister of Public Safety. On our board, we have lawyers, school teachers, nurses, police officers, corrections officers, psychologists, psychiatrists, and they are all from varied backgrounds.
We have worked with Public Safety Canada and the minister this spring on looking at and providing the minister's office with some advice, operationally for us, because there is major change within the present law and the new law. In doing that, we have been preparing for the new legislation, because we worked with the draft. Our board members will need additional training in the areas, as you mentioned.
The present legislation has very simple tests. The new legislation will ensure that we will have to examine activities beyond good conduct — the offence itself and the measurable benefit to the applicant of a pardon to sustain his or her rehabilitation. The applicant will have to provide that in writing. We will have to look at the nature, the gravity, the seriousness and the duration of the offence.
Those are issues that we use and look at during a parole hearing. However, these are not parole hearings. We are not assessing the risk of an individual’s being let out of an institution. However, as we examine an individual prior to granting or denying a pardon, we want to ensure that that portion of that rehabilitation has been completed and that the person is an upstanding member of society. As I mentioned last week, our role is to ensure we protect society, as well. We want to ensure that when we are assessing individuals and assessing the new legislation or the new tools that will be provided in this proposed legislation our board members are trained. In addition to that, we want to ensure they will meet the new legislative requirements that will come with this bill’s enactment.
Senator Baker: Before I ask the second question, something has been on my mind about the discussion of this bill in the House of Commons and in the media. References have been made to Karla Homolka. The reference has been made that on July 5, 2010, she would become eligible to apply for a pardon. However, five years ago, on that date, she was released, but she was released on very strict conditions. Those conditions were overturned about five months later by the Court of Appeal of Quebec. However, for five months following her release, she was under very strict conditions.
I want to ask you a technical question: Am I right in saying one becomes eligible to apply for a pardon after the sentence has been served, which would include any probationary period or conditional or conditions-upon-release period? Is that the standard?
Mr. Cenaiko: That is correct.
Senator Baker: I thought so, Madam Chair. That sort of contradicts the information circulating in the House of Commons.
In other words, you would have to wait for the end of the conditions. That is five months after July; it is not July 5.
The Chair: Did they not say they had been overturned on appeal?
Senator Baker: Yes, but that does not matter.
The Chair: The supplementary is what that would do to the timing of any case. This is not to do simply a one-individual bill.
Senator Baker: The court of appeal overturned it and it ended at that point. The justice department in Quebec had gone to the court of appeal to extend the conditions. It is a small point, but it has been bothering me.
I have a second question. It is not just your adjudication now; you have a subjective and an objective analysis that you will make of every person who applies for a pardon on the basis of whether it would bring the administration of justice into disrepute. I noticed you used the word "would," but in the French it is "could," which is a completely different standard. Some people suggest you should be using the French version and not the English version. However, that is not my question.
This will now lead to a whole new area for you of appeals. To appeal the decision of the National Parole Board, I assume someone goes to the Federal Court; under the Federal Courts rules, that is where one goes to appeal your decision. Have you thought about tying up your staff and having lawyers available, or will the minister, the Attorney General, take over that entire process for you? Then it would be the minister versus the person and not the National Parole Board, and that adds a whole new element to it.
Mr. Cenaiko: There is no appeal mechanism as stated in the legislation. In assessing whether to grant or deny an individual a pardon, if the board felt there was evidence to say the individual may be denied a pardon, the board notifies the person in writing, and he or she can resubmit in writing or apply to the board for a public hearing. That decision by the board will be final.
Senator Baker: Yes, but under the Federal Courts Rules, which established our federal courts, rule 300 refers to judicial review of a decision of a federal board established by federal legislation. That is what you are. There is a provision for judicial review of decisions that you make in the Federal Courts Rules; rules 300 and 308 apply.
Have you thought about that? You have not been confronted with this before, but you certainly will be after this comes into effect.
The Chair: That is the answer.
Mr. Cenaiko: I am not a lawyer. We have our legal adviser here.
Senator Baker: I wonder if she could verify that there is such as thing as a judicial review of a decision of the National Parole Board under the rule 300 of the Federal Courts Rules.
[Translation]
The Chair: Would you please introduce yourself?
Gertrude Lavigne, Counsel, National Parole Board: Good day Madam Chair. I serve as counsel for the National Parole Board legal service.
The Chair: I would like to welcome you here once again.
Ms. Lavigne: Thank you, Madam Chair.
[English]
Decisions made by the National Parole Board on the parole side go to the appeal division. On the pardon side, they will be challenged directly in the Federal Court. It will be against the Attorney General. That is the style of cause; it is always against the Attorney General of Canada. However, a litigator from Justice Canada, with my help, will develop arguments and put them forward to ensure the decision of the board is not put aside and sent back to another differently constituted panel.
Senator Baker: The style of cause is how you identify the case. It will say the Attorney General of Canada versus that person instead of the National Parole Board.
My question still stands. This now brings a whole new expanded role to you. When you are determining something of the substance of whether or not something brings the administration of justice into disrepute, obviously you will have a lot of appeals. Have you made any plans? You have to appear before court to justify your decisions; you will be called in these matters. Have you planned that out that far?
Ms. Lavigne: At this point in time, we are still developing regulations, as you know. That was mentioned earlier. Also, policy will be written and training will be done. There is a legal component to the training. We will review the case law that exists under section 24 of the Charter to see whether we can take whatever is there. Mind you, we will have to adapt it to the board in the sense that the question will be whether the granting of a pardon would bring the administration of justice into disrepute.
Senator Baker: You said "would."
Ms. Lavigne: Yes, I said the English word. I did not say "could."
Senator Baker: Is the French not better? That is an unfair question; I am sorry.
Ms. Lavigne: I will not go there, with all due respect. We will review the case law. At the end of day, maybe I would have personal opinion on that, but I have not reviewed the case law, so I will not discuss that at this time.
All of that is to say that all of these things will be taken into consideration. We will develop a model for the board members to make them more familiar with the term "bring the administration of justice into disrepute." As was mentioned earlier, it must be considered in whose eyes the administration of justice is brought into disrepute. We mentioned the reasonable man. That, too, will be taken into consideration in developing the approach. With all of that together, the decisions will be well reasoned, and it will be easy to go before the Federal Court and defend that.
Mind you, whenever there is anything new in the law, case law comes from it, and we learn from that. It will be tested, no doubt.
[Translation]
Senator Boisvenu: How many pardons are being challenged at this time?
Gertrude Lavigne, Counsel, National Parole Board: At the Federal Court level?
Senator Boisvenu: Yes.
Ms. Lavigne: Very few. I can cite three cases which were before the courts and in which decisions have been rendered.
Senator Boisvenu: Fewer than ten?
Ms. Lavigne: There are not many.
[English]
Senator Baker: Quite obviously you are anticipating a great many after the passage of this bill. You mentioned a "reasonable person," but we do not want to leave the impression that that just means a reasonable person. A reasonable person is defined as someone who knows the law and knows all the ramifications of the Charter and of the case law as it applies.
As I understand it, you will take this one step at a time, and you have not contemplated in advance how much time this will take for you and your staff and how many extra personnel you will need. Mr. Cenaiko mentioned in his submission that the minister would make the applicants pay for all of this.
Did you mean that, or did you just mean for the applications they make or for the appeals they make after?
The Chair: I was going to ask about that, too. Could you tell us what the cost is? You gave some numbers, but I gathered that the numbers you gave for the monies that are now charged do not cover the cost. What would the cost be, and how will it work?
Mr. Cenaiko: I will ask Ms. Trevethan to respond to the financial costs.
Shelley Trevethan, Executive Director General, National Parole Board: We are currently in the process of looking at the legislation to identify what the total costs are. The direct cost for a pardon now has been estimated at $150 per application. As we mentioned in the opening remarks, currently about $50 of that is paid for by the applicant. There are also overhead costs, so currently an estimate for a pardon would be around $250. Our expectation is that this bill could double the price of a pardon for an applicant.
Senator Baker: In conclusion, the cost to the applicant will be rather high upon appeal to the Federal Court. The Federal Court has very complex and expensive procedures because of the number of motions that are allowed under the rules. They have motions to wipe out affidavits and a myriad of other things. I suppose it would be expected that the applicant would receive Legal Aid, but Legal Aid does not apply to that in certain provinces.
There is no other program, unless the Attorney General would pay for the lawyers. Do you have any anticipation that, at Attorney General rates, they would be paying for defence lawyers?
Ms. Lavigne: I could not answer that.
Senator Runciman: That was an intriguing line of questioning, and as a result of it I am not sure whether Senator Baker supports the bill or not.
In any event, I want to commend the government for moving in this direction with this relatively limited measure. Senator Baker wants to raise the spectre of all kinds of complications, but we are dealing with, for example, the individual who recently brought this to public attention.
When you grant a pardon to an individual, do you take into account the line of work the applicant is in? If someone who has been convicted of sexual assault against a young person receives a pardon, they might find it easier to find work as a hockey coach or a youth worker. Is that kind of consideration part of the process? If not, why not?
Mr. Cenaiko: Under the current law, the board is not able to consider some of those areas. With the proposed legislation, the board would be able to consider that much more. Again, there is a difference between this and a parole hearing where you would take into consideration the criminal act and the nature of it. The proposed legislation would provide tools that would allow us to take those things into consideration. The nature and the seriousness of the offence would be prescribed in the legislation. Those areas will be critical in determining whether an individual should be granted or denied a pardon.
Senator Runciman: Has there been any role for victims under the current process, especially for indictable offences? When an offender applies for a pardon, is there any opportunity for input?
Mr. Cenaiko: Legislatively, no, there is not. We work with victims every day. We have thousands of contacts with victims in our normal daily work throughout the country on parole hearings. We work very closely with the Correctional Service of Canada, which also works closely with victims, ensuring they have the information from them and from us.
It is illegal to disclose whether an individual is applying or not, but we do get letters from victims that can be matched up with a file when and if that individual does apply for a pardon. That information has been considered in the past, and under this proposed legislation it would also have an impact in assessing the information about the nature and gravity of the offence, and comments from the victim must be taken into account as well.
Senator Runciman: I think you said that the perception of this as an automatic process is wrong. I was looking at your numbers for 2009-10. You said that you processed 25,000 applications and that 8,000 pardons were granted to individuals with summary offence records and 16,000 to individuals with criminal records for indictable offences. That adds up to around 25,000. That is a significant approval rate on the indictable offence side.
It strikes me that applications have rarely been rejected, although under the current legislation you have some discretion in cases of indictable offences.
What is the rationale for what has transpired in the past?
Mr. Cenaiko: Again, self-selection is done by ex-offenders; a number of them do not apply because of the seriousness of their crime, so we never see those. On the other hand, we do see a number who have committed serious indictable offences who do want to receive a pardon.
We have some of those statistics, and I will ask Ms. Trevethan to provide some additional ones.
Senator Runciman: I would rather move on to other questions, as I do not have much time.
Senator Baker was talking about workload and concerns. With respect to tighter guidelines and how you will approach an application, is it not also a possibility that that could have an effect on the numbers of applications that the board has to deal with as well? That is a possibility as well as the scenario Senator Baker was painting. I would think that having full cost-recovery — which I applaud — could have some limiting effect. If it is perceived as an automatic approval or a 75 per cent to 80 per cent chance that you will get this, there is a greater likelihood that someone will spend the $250 or $500 or whatever it might be, but now that we are tightening up the process, you could end up with a lessened workload. That is also within the realm of possibility.
Mr. Cenaiko: It is. Included in Bill C-23B is the National Parole Board reporting to Parliament every year. Obviously some of those statistics would be included for parliamentarians to look at and review the work of the board. I think that is extremely important.
Ms. Trevethan: I will add that the numbers could go down potentially because of the cost or criteria there. It is also possible that numbers may not go down because there is a growing need for pardons for people to get employment, et cetera. Right now we are looking at what the possibilities are, and it is hard to determine what we will end up getting.
Senator Runciman: I thought we should have both sides of that potential scenario.
[Translation]
Senator Boisvenu: First of all, I would like to thank you for your very enlightening presence. I have been reviewing pardon statistics since 2005, when I was President of the Victims’ Rights Advocacy Association. I feel that we can make statistics say just about anything that we want, depending on whether or not we are defending or challenging them.
Right off the bat, I have excluded from your analysis the 25 per cent of the people who do see the process through to the end. When I purchase a pair of pants, I do not become the buyer until I have handed the money over to the cashier. That is why I think that this 25 per cent represents the people who have not completed the entire process. You have not fully analyzed theses cases.
In reviewing the statistics from 2005 to 2007, it is obvious that there has been an increase in pardon applications, especially in 2007, when approximately 99 per cent of all pardon applications were accepted. And what I found most surprising is that in 2007, 800 individuals who had committed sexual assault were pardoned and many of them were repeat offenders convicted of their second or third crime.
Once a pardon is granted, the offender’s record is kept relatively discreet afterwards. We do know that the less that is known about a sexual predator’s crime, the greater the chance he will re-offend. As long as the sex offender feels that he is being kept under surveillance or that his actions are being monitored, he will remain relatively quiet.
In the case of a relatively dangerous repeat sexual predator who has been granted a pardon and who loiters in the vicinity of an elementary school, will the police have been informed that that individual has been granted a pardon? Is information about this criminal as readily available through the QPIC or the SPIC as it was before the pardon was granted?
[English]
Mr. Cenaiko: It is a very good question. If an individual has finished his sentence and is living in the community, if he is not classified as a dangerous offender under section 752, I believe, and is living in the community, there is no reporting relationship required, unless there is some grave concern that he may reoffend back in the community. Of course, that would have to be with him being labelled a dangerous offender or dangerous sex offender and being released back into the community.
As you are all aware, the present legislation has very simple tests compared to the bill.
[Translation]
Senator Boisvenu: The current bill will affect approximately 15 per cent of criminals, and for 85 per cent of them, the process will be relatively straightforward. As a senior official who is responsible for protecting the public, you can answer the following question for me.
Should a different set of rules apply to criminals who represent a certain level of danger, as compared to the ones that apply to other kinds of criminals who are far less likely to re-offend?
The bill seeks to impose stricter rules for those who represent a greater danger whereas the impact will be lesser on those who are less likely to re-offend. Do you feel this is a rational approach?
[English]
Mr. Cenaiko: I would agree with your comments. The areas of risk assessment that board members consider at parole hearings now are similar to what you are mentioning. The issues that the proposed legislation brings in — the nature and gravity of the criminal offence, the background and history of the individual — are new tools that we will have to develop in moving forward and ensuring board members are trained for that in making pardon decisions. We are making those decisions now in parole decisions. The issue is that a parole decision takes a minimum of approximately two hours for a hearing and approximately two to two and a half hours to study the file. We will have to look at new processes when reviewing the pardon applications for those indictable offences and looking at those serious, violent offences that have occurred where serious harm was done. Again, those will be split out as compared to the impaired driver that would come through.
Obviously, the simple test would continue there, but as we move into more of those obviously serious offences, the tests that are included in this proposed legislation will have to be addressed for the National Parole Board to make a fair decision.
[Translation]
Senator Boisvenu: In your brief, you mention that you are taking into consideration information from victims. When pardons are granted to dangerous criminals, are the victims informed in all cases?
[English]
Mr. Cenaiko: On pardons they are not. At this time there is no legislation that provides victims with access. It is illegal to let a victim know that an individual is applying for a pardon.
Parole cases are different. That legislation is in place under the Corrections and Conditional Release Act. There is nothing in place for victims. However, as I said earlier, if they do send in statements to the National Parole Board, to our pardons and clemency division, that information is utilized in the decision-making process.
The Chair: Correct me if my assumption is wrong. My assumption is that if someone continues to be a danger to the public, even though the sentence has been served, you would not, at that point, pardon that person under the present law?
Mr. Cenaiko: No. This is one the statistics I read earlier: Under the present law, I think 455 applicants were denied last year because they were not of good behaviour.
The Chair: They were not of good behaviour.
Mr. Cenaiko: Yes. That could mean that they were under police investigation. Being under police investigation is not a test criterion. The issue is whether they exhibited good behaviour. Were they under police investigation? Had they been arrested but possibly released for something? Are they under investigation by someone else? Were they violent in nature, but there were no charges? Those types of situations would all be taken into consideration.
Senator Joyal: On the issue of victim information, I was puzzled by your statement on page 8 of your brief, the paragraph above "Conclusion," where you state:
In addition, under the proposed legislation, victim information and the nature of the crime will be considered . . .
The nature of the crime, I can find this in clause 3 of the bill, proposed paragraph 4.1(3)(a), which says that the board may consider the nature, gravity and duration of the offence. However, I do not see victim information there spelled out in the way you state it in your brief. I asked myself whether this might be contained in paragraph 4.1(3)(d) "any factor that is prescribed by a regulation." That will be developed by Ms. Lavigne.
Could you be more specific there? I feel that your statement, left like that, cannot be identified clearly in any of the paragraphs, unless it is in paragraph (d). Am I wrong in my conclusion?
Mr. Cenaiko: Under the new legislation, the nature, gravity and duration of the offence and the circumstances surrounding the commission of the offence will all be taken into account if we have received victim information. In proposed section 4.2, under "inquiries," we say the board may consider whether granting the pardon would bring the administration of justice into disrepute.
Should we then be looking at any victim information that we have on file? My thought would be yes, we should. If the information is on file, I think we have to take it into consideration, as we would with any other police report or any other report or information.
Senator Joyal: However, you would not seek this information?
Mr. Cenaiko: The legislation does not tell us to. We are not lawmakers; we are there to follow the law that parliamentarians make for us. As an independent administrative tribunal, we will work with the law that you give us.
Senator Joyal: My second question is to Ms. Lavigne.
[Translation]
Ms. Lavigne, can you tell us when the draft regulations referred to in subparagraph (d) should be ready?
Ms. Lavigne: As soon as possible. It would be a mistake to try to give you a specific timeline. Clearly this is a priority. We are currently holding consultations and we are trying to finalize the text as much as possible before July.
Senator Joyal: Let us give ourselves a little time. Hopefully, by early fall, you will have some draft regulations ready for discussion.
Mrs. Lavigne: We hope it will be a little earlier than that. Nevertheless, to a certain extent, we are at the mercy of the process.
Senator Joyal: Your objective is to have them ready before the end of the summer, the end of the summer being September 21. Correct?
Ms. Lavigne: Definitely before the end of the summer.
[English]
Senator Joyal: I want to come back to another statement of yours on page 7, under the heading "Accountability." To me, this is one of the key elements of your brief:
Turning to matters of accountability and transparency, the purpose of the pardon process is not to retry an individual, nor is it to hold another parole hearing.
I will describe for you how I see the situation. During the trial, the judge may have to exclude evidence in order to satisfy section 24(2) of the Charter, not to bring the administration of justice into disrepute. Then we go to the sentencing level. The code provides clearly the factors or elements that the judge has to take into account for the sentencing. After the sentencing, of course, there is the parole hearing. The parole hearing is another step at which there is another series of elements to take into account. Then there is the pardon. In the pardon we see again the criterion of not bringing the administration of justice into disrepute, which is a high standard.
If the determination of whether to grant or issue parole would bring the administration of justice into disrepute, we have a set of criteria that, in my opinion, is higher than at the sentencing level. In other words, to grant a pardon in this legislation is in fact to add a level of conclusion that a judge would not have to take into account when he or she is sentencing a person who has been found guilty. That is why I have difficulty in reconciling these criteria, the way they are defined now in proposed subsection 4.1(3), paragraphs (a), (b) and (c), as well as what we will see in (d) later on, with the other factors that will have to be put on the table or checked by you. In fact, the level of conclusions to be reached at the pardon level will be higher than the two preliminary steps of sentencing and parole hearing.
You state in the "Accountability" section of your brief that the purpose of the pardon process is not to retry an individual, but in fact you will retry the individual because you will have to implement the criterion of not bringing the administration of justice into disrepute.
[Translation]
Mrs. Lavigne: Here is how I see it as a lawyer. Obviously, although we are familiar with the concept under the Charter, with regard to the Criminal Records Act, the criterion of bringing the administration of justice into disrepute will have to be adapted to some extent. In my opinion, it will not be applied the same way. It will be essential to determine whether the granting or not of a pardon will bring the administration of justice into disrepute. A number of criteria will be considered in this process. The bill already lists a number of factors; the regulations will contain others and there will be a policy to complement all of this. We will have to adapt. I do not think that the criterion will be applied in the same way as it now is during the judicial process.
Senator Joyal: Do you mean with regard to weighing the evidence?
Ms. Lavigne: With regard to section 24. With regard to parole, the courts have already been called upon to determine whether the board is a competent tribunal for the purposes of section 24. There was the Maureen case in 1996, which set out that we were not a quasi-judicial tribunal and that we could not exclude evidence. This is another process that applies. At present, we are adapting the process to our decisions concerning pardons. I think that, with the legislative amendments, these legal concepts will remain and we will have to reconcile them with the administration of justice if we want the law to work.
Senator Joyal: Because you will very quickly wind up in federal court, without wanting to make any predictions. This is a concept that has been the subject of a number of court decisions—I have noted at least 40 of them—and clearly, the courts have remained extremely mindful of this criterion because to some extent, it is rather fluid, depending on the nature of the crime and the individual’s past, professional activity, ties with the justice system or lack thereof and other factors that could also come into play. When I read all this, I was reminded of Bill S-6 that recently passed. The evidentiary threshold required in order to get a jury to agree to a parole application is lower than the evidentiary threshold that will be required here for a pardon to be considered. So the pardon becomes more difficult to obtain in the judicial process.
With regard to the Charter, do you feel, as I do, that the evidentiary threshold required will be far beyond what a judge, depending on the circumstances of the case, would require when deciding whether or not a person is entitled to a pardon?
Ms. Lavigne: Jurisprudence would have the answer to that question, but we will have to adapt because with regard to pardons, the context is not the same as what you are referring to. We will have to see how the concept of taking these factors into consideration evolves under the Criminal Records Act.
Senator Joyal: You share the opinion that as defined, this criterion does not impose as great a requirement on the courts, considering the specific circumstances of each case, given that an individual’s rehabilitation process is coming to an end. We are no longer at the beginning of the process or at the sentencing phase. We are not at the parole phase, we are really at the end phase where the individuals, theoretically, will have served their sentence and returned to society. They will have ensured reparation for all damages they might have caused by committing the crime.
So, how can we impose stricter requirements at the end stage than during the preceding stages? This is where the logic behind this bill really escapes me.
Ms. Lavigne: When consulting case law with regard to section 24, we find that it was acknowledged in certain cases that occasionally, some judges were in a better position than others to assess a community’s response. For example, in the case of a drug crime, the judge might look at whether or not a community was willing to exclude certain evidence, given the circumstances. I think that it is this kind of approach that will have to be adapted to the context of pardons. In light of this information, all of the criteria and social values, a decision maker, an appeal judge, would have to decide, given the nature of the crime, the rehabilitation and the possible contribution to society, whether granting an individual parole would, in the end, bring the administration of justice into disrepute?
Senator Joyal: Those reasons will be drafted according to the answer you gave earlier. You used the term "well reasoned", therefore the decisions are made in writing pursuant to paragraph 4.2(2).
[English]
. . . it shall notify in writing the applicant of its proposal . . .
[Translation]
It is not just a matter of your application being granted or denied. Correct?
Ms. Lavigne: No.
Senator Joyal: If it is denied, reasons are given, correct?
Ms. Lavigne: Yes, if I am to apply to the Federal Court, I must have good reasons. If that is the case, then the decision to make an application is justified and can be defended in federal court.
Senator Joyal: At that stage, the person can have representations made on his or her behalf pursuant to paragraph 4.2(2).
[English]
. . . advise the applicant that he or she is entitled to make, or have made on his or her behalf . . .
[Translation]
Ms. Lavigne: Yes, because the procedural guarantees and principles of fundamental justice are respected. The board must respect them.
Senator Joyal: Appeals can be filed based on all issues of fact or law.
Ms. Lavigne: In Federal Court. That is correct.
Senator Joyal: You are prepared to deal with applications to the Federal Court.
Ms. Lavigne: Yes, the board is brought before the Federal Court in the case of paroles and sometimes for pardons; so we do have experience in that regard. The process is the same, and we will ensure an adequate defence.
[English]
The Chair: Senator Joyal, I will put you down for a second round.
Senator Lang: Thank you, Madam Chair. I am not sure whether there was agreement there or not.
Senator Joyal: The objective at this stage is to try to understand the bill, not to paint one as a good guy and the other as a bad guy.
Senator Lang: That was not my intention, Senator Joyal.
Senator Joyal: I do not like innuendo while we are studying the bill that we will vote on.
Senator Lang: I think you are being presumptuous. I did not say that.
The Chair: Colleagues, I understood Senator Lang to be joshing me personally because I do tend to try to keep things more or less on track with fairness to all members. We will have a second round of questioning.
Senator Lang: I would like to go in a different direction. In the background documents the witnesses referred to other jurisdictions — Australia, New Zealand, the United Kingdom. With the way their parole boards are set up, do they have discretionary authority granted to them similar to what is set out in this bill?
Denis Ladouceur, Director, Pardons and Clemency, National Parole Board: At least with the United Kingdom, they are spent. There is no real discretion. There is a list of offences that are identified in law, and after a certain period of time the record is just removed or spent.
It is much narrower in New Zealand and Australia. There is a delimitation of the type of offence, but the discretion is not there. There are key elements to which a person must adhere, and it is almost automatic.
Senator Lang: Is it correct that the legislation we have on the books today is comparable to the legislation in those other jurisdictions?
Mr. Ladouceur: For summary offences, yes.
Senator Lang: I would like to ask about costs. I was not clear on cost recovery. Will there be a figure in the regulations of $250 or $500 so that an applicant will know exactly what the application will cost?
Ms. Trevethan: We are currently in the process of going through the User Fees Act to change the fee. The current fee is $50, $35 of which comes to the National Parole Board. We are determining what the cost is with the current legislation and what the cost will be with the new legislation, and we will move toward setting a fee that the applicant will be charged for the service.
Senator Lang: I take it that the taxpayer is subsidizing the system the way it is currently set up.
Ms. Trevethan: That is correct.
Senator Lang: I will go into another area that Senator Runciman was pursuing, and that is the number of applicants we may see because of this proposed legislation. We are going from three years to five years and from five years to ten years. Would it not follow that we will have a hiatus, a period of time when there will be fewer applicants because of the time one must wait?
Ms. Trevethan: We may get fewer for a certain period of time, although some of the statistics we were looking at show that people wait a period of time.
Mr. Ladouceur: Approximately 9 per cent wait the 10-year period. With the current volume, 2 per cent to 2.5 per cent will be affected by the 10-year period. For summary offences it would not necessarily change. There would be a fluctuation in volumes, but I would not expect a dramatic decrease.
Senator Lang: Will applicants who apply for a pardon be heard by the board, or will they just give written evidence, with the board dealing with everything in writing and then making a decision?
Mr. Cenaiko: They will have to apply on paper and then submit their submission, as per the proposed legislation. The board would take that into consideration. Obviously we will look at the FPS — fingerprints — the RCMP background check and the police reports. All of those things will be taken into consideration.
The board would review the nature and gravity of the offences, and depending on the seriousness, we are looking at indictable offences of a serious nature, a violent offence or a sexual assault. If the board decides to grant the pardon, the applicant would receive a letter. The board member will write a decision in relation to the application.
Proposed section 4.2(2) says, "If the Board proposes to refuse to grant a pardon, it shall notify in writing the applicant . . ." Then there is another process where the applicant can ask for any representations to the board or make another submission to the board orally or, if the board agrees, to a hearing in person.
Senator Lang: Do you envisage that happening very often, having oral testimony presented to the board? I am trying to look ahead to exactly how this will work.
Mr. Cenaiko: That is a tough question. We do not envisage a large number of them, but again we do not know. This will be new legislation. We will be able to report back to you next year.
The Chair: Before we go to our second round, I have a couple of questions related to this very interesting statistical sheet that you have provided for us. It suggests that, for a period of three years, you had a sudden, huge balloon of a backlog. In 2005-06 you had no files carried over from previous years; a year later that had jumped to 12,000 files, the following year 16,000 files, the following year 13,000 files. Then last year, 2009-10, you were back down to 78 files. What caused the backlog, and how did you get rid of it?
Mr. Cenaiko: There is some difficulty trying to analyze why so many applications came in.
The Chair: The number of applications rose, but not anything like that much.
Mr. Cenaiko: The issue that came before us was the varying dates for getting a passport to enter the United States. That date moved from June of one year to December or January of the following year and moved again to June of 2008, I believe. That is where we saw a huge jump during that period.
The Chair: You said the United States does not recognize our pardons, so what difference did it make for the people applying?
Ms. Trevethan: Typically, in order to get into the United States, to a get a visa, people would need a pardon first. That does not necessarily mean the pardon will get them into the United States, but it is a first step.
The Chair: Thank you.
Mr. Cenaiko: We did have to hire additional staff to look at all the backlog files that we had, because we were into a process where it would take 12 to 18 months for an application to be heard. We were using funds from the parole side of our work to do the pardon side. Obviously we could really tell. The $35 per application just does not cut it.
We are still at that point, but the number of applications is decreasing now. There is a minor backlog, as you see, but nothing major as there was over the past few years. That was the only factor we could see for why there would be a huge increase in applications coming in. I think it was the only factor.
The Chair: Do you see anything in the present legislation that will create a similar sudden bubble or traffic jam?
Ms. Trevethan: For many years the board has been in a position where the pardons program has not been sustainable. About three years ago we put in place a strong business case and action plan to try to address the backlog, but there has been a cyclical pattern of backlogs. We reduced the backlog by putting in money from the conditional release side, which is not where we want to go on this. Part of the reason we are moving toward trying to revise the user fee is to put the board in a position where the pardons program will be sustainable, but it is not right now.
[Translation]
Senator Joyal: Ms. Lavigne, given the nature of the new criteria set out in sections 4, 4.1 and 4.2, will you be developing guidelines or notices for the commissioners, the persons who will have to judge these cases, in order to familiarize them with the new legal implications of the bill as it is currently drafted?
Ms. Lavigne: Yes, documents will be produced. There will be training and documents, but we will not encroach on their discretion. However, they will be given tools to better understand what is being asked of them and the underlying concept. We will be developing legal tools.
Senator Joyal: Will those tools eventually be made public, and will we be able to see them for ourselves?
Ms. Lavigne: Some aspects will be dealt with at the policy level.
Senator Joyal: What do you mean by that?
Ms. Lavigne: They will be included in policies and directives. And those policies will be adopted by the board’s executive committee. Some of the tools will be set out in policies; and there will also be legal training modules. At this point in time, we have not yet prepared any definitive legal advice. But legally speaking, the commissioners will have all the help needed to understand what they are dealing with and what they need to take into account in order to make their decisions.
[English]
Senator Joyal: Mr. Cenaiko, what is the frequency of change of commissioners? What is your rate of turnover on the board?
Mr. Cenaiko: Under the legislation someone can be a member of the board for 10 years, in most cases. In the last 10 or so years, either government has appointed to five-year terms and sometimes three-year terms for full-time members. Part-time members are always three-year terms. There is always a renewal or reappointments of board members coming up or new board members coming in.
Senator Joyal: Give us an idea of the figures, roughly. What is the full slate? How many you will have this year, for instance, on a three-year basis and on a five-year basis, and how many will lapse?
Mr. Cenaiko: I do not have the statistics on how many will lapse. It is up to the minister to make that decision. There are 45 full-time board members under the legislation that we have now. Bill C-39 will increase that to 60 full-time members. As well, we have in addition to that 44 part-time members. These board members are located in six offices throughout Canada, and their terms are varied. The term limits can vary from three years for part time, three years for full time or five years for full time, in most cases. At various times of the year there may be a board member's term expiring in August, another in October, maybe two in January of next year. We train approximately one dozen new board members each year.
Senator Joyal: Do you have a turnover rate overall on the 100 or so members?
Mr. Cenaiko: It is 15 per cent each year.
Senator Joyal: Of people that you have had turn over and that you have to train as well.
Mr. Cenaiko: This past year we also had a training session on risk assessment; it was the first such session we have had in some time. We held that training session here in Ottawa, for all of our board members and all of our hearing officers across the country. This was training on risk assessment for conditional release for parole hearings, looking at ensuring the ability to review and understand psychological and psychiatric reports, and looking at those reports in relation to measuring those types of statistics.
Obviously, with this proposed new legislation, ensuring our board members across the country receive training will be a critical component. Not all board members across Canada will be making pardon decisions. The division for pardons and clemency is here in Ottawa. The appeal division is also located here in Ottawa. The four board members who work in that division usually handle all the appeals. Obviously there will be changes there, because the work of the board in the pardons division will increase, and we will need to address those board member resources or shortages as that comes through in the next few months.
Senator Joyal: As I understood, the operation is considering the rather difficult cases, those involving a 10-year period. You might want to develop within your own team a group of people who are better specialized or better trained to hear those cases and proceed with them. As you said, this is much more complex than one might think at the beginning, considering the psychological and psychiatric reports, police reports, victim information, evaluation of the impact on the administration of justice, and so forth. You need someone with almost a judge's capacity.
Ms. Trevethan: Currently, our board members are trained in many of those areas. As part of the parole process, they learn about the criminal justice system. They understand the criminal records that offenders have. That is what they use in making parole decisions. We have a good base of training for all board members. We have quite extensive training. We provide 20 days of training per year for board members. This is very important. I agree with you that we will need to have some specific training on the pardon side, but we have a good base right now. Board members get extensive training in many of the same areas that they will need to look at on the pardon side.
[Translation]
Ms. Lavigne: The reasons considered by the commissioners at the appeal division are very similar, if not identical, to those required at the Federal Court level. Therefore, the commissioners at the appeal division are already quite used to dealing with principles of law. It will not be a stretch for them to make a transition to these new principles since they are already familiar with the law. In fact, legal training is regularly given to those commissioners, whether newly appointed or long serving, who have questions concerning newly adopted principles. In the 18 years that I have worked in legal services at the correctional and parole level, the act has undergone changes and new concepts have been adopted. With the support of staff and other divisions of the board, the commissioners have been able to properly assimilate and apply the various legal criteria.
Senator Joyal: Thank you.
[English]
Senator Baker: Are you saying that someone who wishes to appeal a decision on a pardon will still have the option of going to your own appeal division?
Ms. Lavigne: No.
Senator Baker: That is what I thought.
Ms. Lavigne: Contrary to parole, in the Corrections and Conditional Release Act, section 147 allows the offenders to appeal to the appeal division. The grounds for appealing to the appeal division are identical to those before the Federal Court: error of law or breach of fundamental justice.
On the pardon side, there is no appeal mechanism. Once the board has made its decision, the applicant would have to take a negative decision to be judicially reviewed before the Federal Court.
Senator Baker: Yes. Under judicial review, rule 300 of the Federal Courts Rules, the Federal Court, in deciding whether there has been an error of law or whether the board behaved unreasonably, with gross negligence or some other character, has the authority not to change the decision but to refer the matter back to the National Parole Board for a decision to be made with different decision makers than those who made the original decision.
Are you prepared, then, to have persons, not just the numbers that you have now, but more, who will be trained in the same area?
Ms. Lavigne: Yes.
Senator Baker: I do not know whether you can answer my final question. Maybe you are too careful. Ms. Lavigne is very careful in her answers. The minister was here with his legal person, and she was also very careful in her answers.
We raised this question with you before, and maybe you cannot or will not answer it. There are two standards, one in English and one in French. You say you will let this go to the case law. Let me tell you that every day this is decided, and it is decided differently, by different standards, in different provinces. The courts of appeal rule in the provinces, , as you know. Then there is the Supreme Court of Canada.
Can you tell us now whether it will be on the basis of the English in this bill, which is "would" bring the administration into disrepute, or will it be with the French version, which is "could"?
Ms. Lavigne: You will not like my answer. I will tell you that I will inform the board members of the difference between the French and English versions and I will advise them of the case law with respect to the discrepancy, but it will be their discretion to exercise.
Senator Boisvenu: Very wise.
Senator Baker: Ms. Lavigne did not really answer the question, and that makes her wise.
You are an excellent witness, Ms. Lavigne.
[Translation]
Senator Boisvenu: I would like to make a request for information on behalf of the committee. The current bill will prohibit or prevent pardons from being granted in the case of manslaughter. I have gone over the 2005, 2006 and 2007 statistics in detail, and I do not know whether it was in 2006 or 2007, but there were two people convicted of manslaughter who received pardons: one who had been convicted of second-degree murder and another of manslaughter. Would it be possible to provide the committee with the reasons those pardons were granted in 2006 or 2007, both in cases of manslaughter? I would be interested in having that information. I was not able to obtain that prior to becoming a senator.
I would like to come back to the issue of pedophiles and sexual predators, because that is my real concern with this bill. Among other things, we know that pedophiles use the Internet, which is the easiest way for them to re-offend without getting caught, to phish for children between the ages of 12 and 14. Despite having received pardons, those people are at risk of re-offending and might not get caught because this type of crime is very difficult to prevent. I am referring to pedophilia over the Internet.
The question I would like to ask you might not be easy for you to answer, as you said earlier. It is much more difficult for a police officer to track down a pedophile who has received a pardon, because his file becomes more or less confidential, even for police officers.
Some 800 pedophiles received pardons in 2007. I am concerned with protecting the public. In those cases, where the rates of recidivism in society are much higher, will you conduct even more thorough investigations when considering their applications for pardon? I am thinking of the much higher numbers of repeat offences in cases of impaired driving, sexual assault and pedophilia, given that those behaviors cannot be corrected.
Thos behaviors can be kept in check. That is why we want to make changes to the sexual predator register in order to ensure that it includes all people with deviant behaviors. Therefore, my concern regarding pardons is that law enforcement officers might lose track of the people with deviant behaviors who will have received pardons. Will you be giving yourselves special means to track those people, knowing that the recidivism rate in their case is much higher?
[English]
Mr. Cenaiko: That is a tough question. Going back to some of the statistics you mentioned, in 2005 one board member was making the decision on those cases, and the criteria were the same as they are today. Then in 2007 some changes were made so that two board members started to review the file and make a decision whether to grant or deny.
As you mentioned, when those pardons are granted to individuals who may have committed sex offences, the sex offences they have committed are still on the system for police agencies to be aware of. Police agencies throughout Canada are aware that those individuals may have committed a sex offence. Most police agencies are aware of where they live and what communities they are in, and police work to ensure the safety of the communities and the people in those communities. It is not an easy thing to do, but many police agencies do go into that depth following up for the protection of their communities.
Beyond that I do not think I can give any additional information. If we can go back to those pardons that were provided to the individual — I do not think there is anything in law that says we could — but if those individuals applied to work on a volunteer team for kids, obviously those are some of the areas where those checks will be extremely important with the RCMP to ensure that is pulled out and that record does show them having a sex offence.
[Translation]
Senator Boisvenu: Sexual predators are criminals who are of great concern to me because they remain hidden and manipulate people, and that is the reason why the recidivism rate is so high. In those cases, rather than sending out pardons in the mail, could the board not hold hearings with those people? I am concerned that everything is done anonymously. Often, meeting a criminal can be quite revealing and may even lead the rehabilitated criminal to abandon his application, knowing that he will have to meet with an expert. In those cases, would it not be better to meet with the person who is applying for a pardon, rather than simply issuing a pardon through the mail?
[English]
Mr. Cenaiko: Senator Boisvenu, I investigated over 600 sexual assaults in my previous career. Is there an opportunity to make changes to the present legislation? Obviously I am not involved in politics anymore; you are the parliamentarians and you make the laws. We would follow the legislation if that were before us today. We would follow that legislation and we would hold hearings for those individuals, if that was included in the new legislation.
[Translation]
Senator Joyal: Still in the subsection 4.2(2), Ms. Lavigne, when an applicant has been turned down and wants to appeal, in writing of course, with the reasons that you mentioned and if he is granted a hearing, which means that he can make oral presentations, are the commission members who hear his presentations the same ones or the same one who issued the notice denying the application?
Ms. Lavigne: No, currently, the way it works, when the applicant wants a hearing and he is granted one, it is held in the region where he is currently located. For example, if the commissioners of the appeals section decide not to grant him a pardon, he can request a hearing, which will be held in the region where he resides. I remember a case in Quebec. There was a hearing before a commissioner, and this was not the same person who had handed down the original decision.
Senator Joyal: However, in the event that there is no hearing, but just a written appeal, does the same principle apply? Is the appeal considered by a commissioner who was not involved in the original application?
Ms. Lavigne: Another commissioner takes the case in hand, otherwise there would be reason to fear a lack of impartiality, and we do not want that.
Senator Joyal: I imagine that if the application is turned down on appeal, the written decision outlines the motives as to why the application was turned down.
Ms. Lavigne: Currently, when an application is denied, it must be demonstrated that the standards of good behavior were not met, for instance.
Senator Joyal: The application could be denied for any number of reasons.
[English]
Mr. Cenaiko: All these areas will be defined in the regulations and policy as it comes forward to determine the processes that obviously will be determined down the road.
Senator Joyal: With those new regulations and guidelines that will follow from this.
[Translation]
Ms. Lavigne: This will be developed through orientation, when dealing with policies that have not been provided for in the regulations. This is understandable.
Senator Joyal: Obviously.
[English]
The Deputy Chair: Thank you very much, witnesses. This has been very informative. I am sure, with another hour and a half, we would still have you here, but that was tremendous. Thank you so much. We appreciated your being here.
Our next witnesses are here. From the Canadian Resource Centre for Victims of Crime, CRCVC, we have Ms. Heidi Illingworth, Executive Director; and from the Canadian Association of Elizabeth Fry Societies, we have Ms. Kim Pate, Executive Director.
It is nice to see you again. We keep calling upon you because we continue to have bills before us that concern what you do. Please proceed with your opening comments.
Heidi Illingworth, Executive Director, Canadian Resource Centre for Victims of Crime: Thank you for having us here today to consider of Bill C-23A. On a daily basis, we assist Canadians whose lives have been affected by serious crime such as manslaughter and sexual assault. We know from our experiences supporting survivors that the consequences of their victimization are lifelong. Sadly, crime victims are among society's most marginalized, getting little support or help to recover. We are pleased to be here today to help voice their concerns and to speak out, as they often do, to prevent anyone else from suffering the harm they have suffered.
Our centre supports Bill C-23A, which amends the Criminal Records Act to extend the ineligibility period 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. Our agency was present in support of the government, sexual abuse survivors, and other public safety victim advocates when this bill was introduced on May 11.
We believe that pardons are useful to help nonviolent offenders become and remain contributing members of society by removing their criminal record from CPIC so that they may be more likely to find employment, among other things. Offenders who are successful in gaining employment are less likely to reoffend and to rely on social assistance. It is positive that, since 1970, more than 400,000 people have received pardons, and 96 per cent of these are still in effect.
Nevertheless, we feel the proposed legislation makes some reasonable and necessary changes to the Criminal Records Act in order to increase the scrutiny that offenders face throughout the pardon process. We support increasing the waiting period to apply to 10 years in the case of a serious personal injury offence within the meaning of section 757 of the Criminal Code, including manslaughter, as well as to five years for summary conviction offences.
Offenders whose sentences have expired should be required to spend a significant amount of time living in a pro-social manner in the community before they become eligible to be considered for a pardon. This contributes to increased public safety.
The CRCVC is equally pleased that the granting of pardons will no longer be automatic. As you know, the National Parole Board currently approves 98 per cent of pardon requests submitted each year. We believe it is fair for the board to have increased discretion and for offenders to prove to the National Parole Board that they are deserving of a pardon. The proposed legislation requires more than good conduct and not being convicted of an offence under an act of Parliament. It also requires that the granting of a pardon at that time would provide a measurable benefit to the applicant, would sustain his or her rehabilitation in society as a law-abiding citizen, and would not bring the administration of justice into disrepute.
The centre believes the Senate should pass this legislation immediately, and not only because Karla Homolka may soon be applying for a pardon. While this is a sensational case, it does not mean that the issue of granting pardons to offenders convicted of serious crimes is being sensationalized. It is fair for the media and members of the public to comment that some offenders' crimes are so heinous, despite being convicted of lesser offences, that they should simply not receive a pardon. We believe that pardons may not be appropriate for some offenders.
Bill C-23A will improve the pardon granting process by ensuring that offenders have spent a significant amount of time having good conduct while also asking them to demonstrate why a pardon is necessary. We also feel it is critical for the National Parole Board to be able to deny a pardon in cases where it would bring the administration of justice into disrepute. Other issues to be considered in doing that have been discussed in detail today.
The suffering of victims and survivors of violence does not end when an offender's sentence expires. Justice is not served when offenders are quickly and quietly granted pardons for their crimes, nor is public safety. Bill C-23A improves the pardon process in Canada by allowing offenders to request consideration for a pardon after spending increased amounts of time as law-abiding citizens while also placing the onus on offenders to explain why receiving a pardon would be beneficial. It is also a critical amendment for a determination to be made about whether granting the pardon would bring the administration of justice into disrepute.
We strongly urge that the committee support this bill and ensure its speedy passage.
Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies: Thank you for inviting us to appear. Regretfully, due to the speed of the study on this bill, none of my board members is able to be here with me, so you are stuck with me again.
I am very pleased to have been asked to be here. Our concern started with the introduction of this bill during National Victims of Crime Awareness Week. It seemed clearly to be aimed at gathering public support and perhaps even inflaming public opinion against certain individuals at a time when it was hard to discern what exactly the issue was with respect to pardons. If there is an issue, certainly having that outlined would have been very useful. Having an opportunity to have consultations with groups that work with victims and those of us who work with marginalized, victimized and criminalized individuals, as the parole board has done in the past when there are issues, would have been useful. In fact, even when it was just a matter of increasing the fee previously, that would have been a matter for consultation. That causes us to ask many questions about what the purpose of this bill is beyond inflaming and perhaps creating issues that were not present in the first place.
For the first time today I hear that the rates may be going up, not only from $50 dollars to $150, but now possibly to $250 and $500. I would suggest this committee should also be concerned about that issue, because of the number of individuals who may not be able to pull together those kinds of resources if they are on social assistance and trying to get a pardon so that they can access employment. The current rates are already a significant impediment.
We are also aware that the high-profile cases that have been touted as the reason for requiring this bill to be so speedily passed through both the lower house and this house have to do with some dates approaching for individuals for whom there has not been any indication that the National Parole Board has shown positive discretion in the past, so why it is an issue at this point again begs a question.
We also know that many people do not apply for pardons, for all kinds of reasons. We know that the statistics indicate the wait time is significantly less than what our experience shows in terms of individuals applying, be it men or women. I understand the rate is said to be between 3.5 months and 12 to 17 months. My experience with individuals applying has been that it is often 18 months to 2 years before they are able to access a pardon.
If they do access a pardon, often if there is behaviour that would bring the administration of justice into disrepute or that would pose public safety concerns, the pardon can be revoked. As you know, the rate of revocations is between 2 per cent and 4 per cent, depending on the year.
The board already can and does deny pardons. There is provision for oral hearings, although I am not aware of these having taken place. That does not mean they have not, but it gives some indication of how rare they are. In my 27 years, I do not know of anyone who has had an oral hearing for a pardon. Historically there have been many backlogs, of which the committee is well aware, so I need not revisit that.
At this stage, the question that is begged is what is the purpose of this proposed legislation other than to make it more difficult for people who already have difficulty obtaining pardons to get those pardons. Our view is that if there is a need for reform, let us articulate it very clearly, not just in terms of one or two cases that have been problematic but in terms of the process that has been problematic. As I say, our organization is not aware at this stage of what those problems are.
[Translation]
Senator Boisvenu: Ms. Pate, you made a statement that I would like to comment on. When you said that many bills seem to be aimed at solving nonexistent problems, perhaps there were no problems as far as the criminals were concerned, but there were many problems for the victims.
My first question to you has to do with the legislation. I think that we will have to get rid of this misconception that many people have when they criticize it. It will affect about 10 per cent of those who apply for a pardon, and not 100 per cent. These are people who have committed more serious crimes, and who are at a greater risk of re-offending. We will grant discretionary powers to the National Parole Board to make more nuanced judgments rather than to take a strictly bureaucratic approach to the granting of pardons.
Is it logical to make it so easy for some former offenders to receive a pardon? We hear that 90 per cent of offenders will have a relatively easy time obtaining a pardon, while those who have committed more serious crimes or who are at a greater risk of re-offending could have a harder time of it and undergo greater scrutiny. Does this not seem reasonable to you?
[English]
Ms. Pate: Thank you for opening with that, because certainly our concern is that National Victims of Crime Awareness Week could have been an opportunity to announce resources for the women's groups, victims' groups, and all the groups that have experienced cuts, if in fact the interest was in preventing more victimization and in ensuring there are fewer people being victimized as opposed to doing something after the fact for those who have already been victimized.
As well, the law does not just apply to serious offences; it puts in delays for summary convictions as well as for people convicted of indictable offences. It strikes me that if they can access justice, which is another question, it will invite more calls for review and more potential for people wanting a review if they are trying to get a job.
[Translation]
Senator Boivenu: That was not my question, you stated it in your introduction, and I understood it clearly. My question is much more fundamental. I understand that when laws are stricter, constraints are an issue. This is another debate.
I am saying that I want you to give an honest answer to my question. If a bill affects 10 per cent of those who apply for a pardon and not a 100 per cent, one must argue one’s case in more relative terms. Given the fact that this bill targets people who have committed more serious crimes and who are at a greater risk of re-offending, would it not be normal to have two different procedures in place? The same straightforward procedure would continue to apply in the case of 90 per cent of the people released from prison, whereas for the other 10 per cent who present a greater risk, a more stringent process would be in place for obtaining a pardon. Does this not seem like a more logical approach to you?
[English]
Ms. Pate: With respect, I think that is what exists.
[Translation]
Senator Boisvenu: This is not what the commissioner said earlier.
The Chair: Let the witness answer.
[English]
Ms. Pate: I would say that already does exist. Certainly someone still involved in the activity would not be getting a pardon; he or she would not be successful unless there was some other intervention, dare I suggest, some other influence that would have nothing to do with that review process.
If people are still involved in criminal activity, or even in activity that is seen as not appropriate, somehow threatening, even if they are not being charged, the chances of their being able to obtain a pardon would not be great, I would suggest. Certainly that stringent process, in my experience, already exists, even for people who have relatively minor charges.
I have walked through the process of applying for a pardon with a number of people. Sometimes they do not understand the process, and sometimes they do not have the resources to be able to apply, not just the pardon fee but having to get all the records checks and so on. In fact, there is a fairly stringent process already, as far as I am aware.
[Translation]
Senator Boisvenu: Let me say that in 2007, pardons were not supposed to be granted to persons convicted of homicide. Two persons in fact were pardoned in Canada. One had been convicted of second degree murder and the other, of first degree murder. It is not true to say that the current system is foolproof.
The Chair: I think that you are going beyond Ms. Pate’s field of expertise. We will try to put the same question to the officials who will be here shortly.
Senator Boisvenu: Ms. Illingworth, when a register of pardons has two categories, it is a relatively easy and automatic process for those who do not represent a high degree of risk to be granted a pardon, as is now the case. However, certain offenders such as those who have committed serious or heinous crimes, sexual predators, pedophiles and others who have a greater likelihood of re-offending present a greater risk. Would it not be normal to adopt a more stringent, better structured and documented and more critical approach to dealing with this particular category of offenders?
[English]
Ms. Illingworth: I think we would agree with you on that. I think we made it clear in our presentation that we would agree with that.
Senator Joyal: My first question is for Ms. Pate. On the basis of your experience in rehabilitation, what impact would waiting an additional five years to complete a ten-year period under the bill or an additional two years to go from the current three-year period to the five-year period under the bill have on a person wanting to seek a pardon? What is the impact on that person? In other words, what do we do to people when we put them on a waiting track for five more years or two more years?
Ms. Pate: For the women I have worked with most recently — and I have also worked with men — one of the issues that comes to mind immediately is the number of women who cannot volunteer at their children's schools if they want to go on school trips. In most of the cases I have dealt with, the women have been in the federal prison system and have been convicted of an indictable offence, even if it was hybrid to start with. They have to wait a certain period of time. Because they have to have a criminal records check, if they have children, this interferes with being able to participate in school initiatives, recreational activities, soccer, hockey and all of the activities they might want to participate in.
Certainly the waiting period can be an impediment to employment. Although it is not an impediment to getting a passport, many people believed it was. As you heard earlier, there was a sudden influx as people thought you needed to get a pardon in order to get a passport to travel to the United States, if they had been doing that.
The situations vary, but there is an impact in a number of ways. In my experience, people often wait beyond the five-year period already because they are fearful that if they do not, it will look as though they are not serious about living a law-abiding lifestyle.
With her permission, I will tell you a young woman who was once declared a dangerous offender — therefore potentially the sort of person the committee would be interested in, or at least the legislation may be targeted to — has waited 10 years. In fact, she is approaching her eleventh anniversary to obtain a pardon. She was not able to participate in any post-secondary education that she was interested in because it involved human services work, even though she has for 11 years done that work on a peer and voluntary basis, always with a team, for the protection of others involved. This person has now applied for a pardon, after our urging her for many years to do so. The wait period has significant impact. The courts agreed she should never have been declared a dangerous offender, but in this context she would have even greater difficulty having access.
I think the wait period will increase challenges for employment and for participating in community and family life and will generally make much more difficult the reintegration process, which is already challenging enough.
Senator Joyal: I have the impression that the objective of the bill in some aspects might look appealing because it seeks to protect the public generally. On the other hand, the bill also has side effects for some of the candidates for a pardon; it might in fact prevent them from finalizing their rehabilitation. As you have said, the rehabilitation process is complete once the person resumes all the regular activities that any one of us could have in the educational, social and cultural systems, moving around, and seeking any kind of job. I have the impression that for some candidates it will have an adverse result on rehabilitation.
I can understand that we want to make sure the public is better protected and so forth, but at the same time the bill cuts both ways, depending on each individual case. Does the system have enough flexibility to take into account those cases where it is in the best interests of society to grant a pardon to a person after a reasonable period of time of three or five years? On the basis of your experience, can you comment on that?
Ms. Pate: It is already a challenging process to obtain a pardon, and I know from those with whom I have worked, who have applied for pardons, that it is taken very seriously. I think the stringency already exists that is being sought and being proposed in the current legislation, particularly when you know how long sentences already are proportionally in this country and the fact that they are getting longer. Likely this, compounded with the longer sentences we are experiencing and more mandatory minimum sentences, will make it increasingly difficult for individuals.
I live in this community. I live in this country. We all do. We are all concerned about public safety. "Irony" is probably too soft a word. The reason I started talking about this being announced during National Victims of Crime Awareness Week is because if we are interested in public safety and protecting more of the women and children who are at risk — because this is being promoted on their backs, I would suggest — then we would be looking at some of the universal applications of approaches we know will work. We would provide resources for women's centres, more social services, more educational services, more of those supports such as housing supports that can be done through taxation initiatives, through national standards and through some of the other measures that have not been approached. To do it after the fact by attacking the pardon process strikes me as being a little cynical.
Senator Joyal: Ms. Illingworth, were you in the room when we had the previous witnesses from the National Parole Board?
Ms. Illingworth: I was watching online at my office at the beginning, and then I just came in at the end.
Senator Joyal: The representatives of the National Parole Board mentioned to us in their brief that they are taking into account, and I quote:
. . . under the proposed legislation, victim information and the nature of the crime will be considered by Board members . . .
I stress "victim information," but when we put the question directly to the representative of the board, the bill does not spell out clearly that victim information must be taken into account by the board. Of course, the nature of the crime, the longevity of the crime and so forth and the circumstances of the case must be considered, but direct victim information is not sought by the parole board.
Would you care to comment on that? Does it bother you? Do you feel you are protected enough the way the bill is spelled out?
Ms. Illingworth: This is not an area we are able to work at our centre with victims to help provide information to the board. When an offender puts in a request to be considered for a pardon, there is no notification to the victim as there would be for a parole hearing, where victims do have a right to put in that information.
Yes, I did see that the National Parole Board commented that someone could submit a letter. You could submit a letter now for down the road when offender X may apply, but you do not know whether an offender will ever apply for a pardon. I think there are probably many privacy issues around that.
How could the board involve victims more? I do not know how the board could do that. Definitely it would be nice for victims to have a voice, as they do now in the conditional release process.
Senator Joyal: Victims have involvement in the parole process because the law provides it quite clearly. For a pardon, as you know, the act does not provide it. What we have in the bill does not compel the parole board to inform victims that a pardon is being sought, and victims cannot really make a representation formally on that.
Ms. Illingworth: It may not be possible for the National Parole Board to make every victim aware. Currently only a small number of victims receive information about the offender who harmed them. It may not even be possible to reach a victim to ask for input about a pardon.
Senator Joyal: Do you feel that you have to make representation formally to have that added to the bill?
Ms. Illingworth: It would be nice if that was there, but it is certainly not in the A part of the bill, and I do not believe that it was there for the B part either.
It is important for victims, if they wish, to have a voice at all parts of the process, but unfortunately it is not possible right now.
Senator Joyal: As I stated, at the sentence level victims can make representation — it is provided in the Criminal Code. At the parole level they are also considered, but at the pardon level they are not formally considered. That is why I am bringing it to your attention, to see whether at this level, considering that the sponsor of the bill stated the bill is to protect and satisfy the victims’ claims, the victim could have an opportunity to make a statement. That is why I am raising it with you.
Ms. Illingworth: Definitely we work with some families and individuals who would be interested in having a voice in that process, but certainly I cannot speak for all victims.
Senator Lang: I am trying to recall our discussion on the previous piece of legislation. I am going on memory, but at the stage of going for a parole hearing, there is nothing in legislation that says the victim must be contacted. Is it not by policy that they do that? I am trying to remember the response to that question.
Senator Joyal: It is section 745.63(1) of the Criminal Code. The jury will take into account:
(a) the character of the applicant;
(b) the applicant’s conduct while serving the sentence;
(c) the nature of the offence for which the applicant was convicted;
(d) any information provided by a victim at the time of the imposition of the sentence or at the time of the hearing under this section . . .
In other words, a victim would have two opportunities: at the sentence level or at the hearing by the jury on the basis of what we were discussing. It was in relation to first-degree and second-degree murder, not in relation to the general obligation of the code.
The Chair: Forgive us for straying a bit from your mandate, but I think Senator Boisvenu wants to make a comment.
[Translation]
Senator Boisvenu: Senator Joyal this is not an obligation, but a directive. Since 2002, this directive ensures that information from the victims will be made available if the victims so chooses. The government is not obliged to contact the victim to ask them to testify. This will be included in the current bill.
[English]
Senator Wallace: Ms. Illingworth, Minister Toews appeared before us earlier today and explained the rationale for why this bill was brought forward. For him, a significant factor was that he felt there is a need to create a better balance than exists today, when comparing the rights of society to protection and the rights of those accused to receive rehabilitation and the like. He said to this point there has been an imbalance in those two categories of rights. What is your reaction to that?
Ms. Illingworth: One of our centre's priorities is that there is a large imbalance in the Canadian criminal justice system. While many protections are afforded to those accused of crime, the Charter of Rights and Freedoms is silent about those harmed by crime. Much of what victims get is through policy. Their rights are not legislated. Even the provinces have statutes saying that victims should have this information, but those rights are not enforceable. Yes, we very strongly support that statement by the minister.
Senator Wallace: Ms. Pate, another point the minister raised, which I think is extremely important to him and others, is that the bill would result in the applicant having the onus of satisfying the board that the pardon should be granted because it would create a measurable benefit to the applicant and would sustain his or her rehabilitation in society as a law-abiding citizen.
What is your reaction to that? Do you believe that is an appropriate way to deal with the onus of responsibility?
Ms. Pate: With respect to both what you asked Ms. Illingworth and the question you are asking me, I would ask what the basis for the minister’s assessment is. As I mentioned earlier in response to Senator Joyal's question, many of the individuals we are encouraging to apply for pardons do not fully understand what the impact may be until sometime later when they suddenly experience the benefit of having a pardon.
The ability of some, particularly many of the women I know and work with, to argue for their own entitlement may be hampered. If we are really interested in balancing protection of victims, we would look at some of the measures I mentioned earlier that have been further eviscerated over the last several years and decades, that is, the ability of those most marginalized to be contributing members of the community. Saying that we will try to balance rights after the fact when we are not stemming the tide of those who are likely to be victimized at the outset is extremely problematic. What is the basis for his assessment?
Senator Wallace: Back to my question to you dealing with who should have the onus of deciding whether the pardon should be granted, should the state have the onus of showing that it should not be granted, or should the onus be on the people applying to satisfy the criteria and make the case that they are entitled to the pardon? Do you agree that it should be the responsibility of the applicants to prove their entitlement?
Ms. Pate: I apologize for not answering that clearly earlier.
The law is clear. We have a process set out to try to be fair and encourage people to be rehabilitated in the context where their rehabilitation and reintegration into society does not pose a risk to them or anyone else.
Practically, I would say that the onus already does rest on the applicant. If the person does not apply, they are not automatically granted a pardon. We do not have an automatic process, as some jurisdictions have. In some jurisdictions, once you have completed your sentence, the presumption is that you continue on unless you do something else. In this context, I would say the onus practically already does fall to the applicants, because if they do not apply, they are not considered.
In my experience, if a victim has provided impact statements, has been part of conditional release hearings, has had a say, that information would certainly be taken into account in the pardon application process now, not because it is enshrined in law, but because practically they would be looking at that information, and in my experience the parole board is incredibly sensitive to all of those issues at every level of their decision making.
Senator Wallace: Would it not seem reasonable that the applicant, the person previously convicted, would have the onus of convincing the board as to the nature, gravity and duration of the offence and the circumstances surrounding the offence? These are enumerated, set out; this is what the applicant must address in making the case that a pardon should be granted. Does that not sound reasonable? I am not trying to be argumentative; I would just like to know whether you would agree that that aspect of bill, in the minister's view, is important and a definite improvement over today.
Ms. Pate: It is really an articulation of the status quo, of what practically exists. Our organization has not taken a position, but I personally think the onus is already very high, and the finances required to obtain a pardon already make it prohibitive for some individuals. I would hate to see something even more prohibitive limit those individuals who should be entitled to move on with their lives, who can make good contributions to the community, from receiving a pardon, be it because of illiteracy, because English is their second language, or because of their own sense of lack of entitlement. The onus provision makes it more difficult for those individuals. Since, practically speaking, it already exists, I am not certain what case has been made for its needing to be enshrined in legislation at this stage.
Senator Wallace: Ms. Illingworth, do you have any comment on that?
Ms. Illingworth: Our agency thinks it is reasonable and fair that the applicant would have to prove to the board rather than just making an application. Under that system, currently 98 per cent of pardons are approved. It would be nice for society and for victims to know that the board has gone more in-depth with individuals about whether they truly live a positive lifestyle.
It is difficult to hear offenders being touted as those who are most marginalized in this country. It is very difficult for victims to move forward with their lives, too, to go back to work and have anyone listen to them about the harm that they have suffered.
I would say that making an application and paying $50 is not a difficult process.
Senator Carstairs: Ms. Pate, I think Canadians are generally aware of the difference between an indictable and a summary conviction. They tend to think of summary convictions as being more minor crimes. Who will get caught in this by changing it from three years to five years?
Ms. Pate: I do apologize to my colleague. I did not mean to in any way indicate that victims are not marginalized. It is quite the opposite, of course. That is part of the reason that our organization works with marginalized and victimized women as well as criminalized and institutionalized women.
It will be those who have the least opportunity to provide representation, those who have been convicted of relatively minor offences who will be most inhibited in being able to apply for pardons, for all kinds of reasons. They are already marginalized in terms of economics, and my understanding from the previous witnesses is that the fees may potentially be $500. That could be the entire monthly cheque for women on social assistance. This will catch the poorest, the rapidly increasing numbers of Aboriginal prisoners, and those with mental health issues who may not be capable of making lucid representations to the board. Also, there is no legal representation for pardons.
Many organizations are setting up businesses to assist with pardons. It is a significant expense. Those who are likely of no concern to the individuals who have proposed this legislation are the ones most likely to get caught and not benefit from a pardon as a result.
Senator Carstairs: My second question has to do with the employment opportunities of those who have been imprisoned and have been released. You talked about the volunteer component and the limitation placed on that. What about the limitation placed on their actual employment opportunities? Can you give some examples of what those limitations are?
Ms. Pate: Some of the limitations have been for people applying to be bonded. If they are not able to obtain a pardon, it is much more difficult to obtain the kind of insurance they may require to do jobs with a greater sense of security for their employer.
In some instances it is the limit, and you are able to be discriminated against if you have not received a pardon. Certainly at the federal level that is true. There are a number of people who have jobs like driving jobs, long-haul trucking. The sorts of trades that can allow them to actually integrate without being any further drain on the public purse through social services will likely be more difficult for them to obtain — the challenges of more definitively limiting those applications.
I was surprised to hear that someone had been pardoned for murder because it is a life sentence. I do not know how someone can be pardoned for a murder.
The Chair: They may be talking about clemency there. We need to go to the officials on that one.
Senator Carstairs: My final question is to Ms. Illingworth. We have heard a great deal about victims, both in this and in the faint hope clause bill. I think I have pretty good understanding, having been the victim of a criminal activity myself. The reality is that there are very few programs for victims of crime.
What does your organization do to lobby government about getting the needed supports? My concern is that sometimes we re-victimize the victim by constantly focusing on their victimization.
Ms. Illingworth: Our agency is very active in advocating within all the provinces and territories around how they can improve services for victims of crime and how compensation programs may or may not be meeting the needs of victims. We liaise with all of the other victim advocacy groups across Canada and support them, as, for example, when Senator Boisvenu's group was bringing forward proposed legislation about providing Employment Insurance benefits for victims in Quebec. Our agency is a resource, so we get that information out across Canada, and then of course we do struggle financially ourselves.
Just this afternoon I got some more difficult news from our financial officer. Like many of the other non-governmental groups across Canada, we have difficulty keeping our doors open and offering services to victims. We have been able to access some project monies from the Department of Justice recently, but it continues to be a struggle for small groups like mine to have our voices heard. Most of the groups do not have paid staff. The people working are actually victims who just speak out. They form networks in the regions of the country where they have been harmed. Unfortunately, there just is not enough at the level certainly that offender groups get.
Offender groups are also doing important work for the people they represent, but we would like to see more of a balancing of the monies provided to those who serve offenders and those who work with people harmed by them. It is right on our website, all of the statements that we make continuously. We try to voice that.
Senator Carstairs: Meanwhile, you are not getting adequate funding from the government to support your organization.
Ms. Illingworth: We get a small amount from Public Safety Canada on an annual basis. We get $19,000.
[Translation]
Senator Boisvenu: Are you aware, Ms. Illingworth, that the provinces are responsible for assisting victims, while the federal government is responsible for assisting criminals? These are very serious concerns. Thus, a criminal who commits murder in Quebec…
The Chair: Is this a question?
Senator Boisvenu: Yes, I will ask a question. A criminal who commits murder in Quebec and who is incarcerated in British Columbia will receive the same services, because we have national standards for assisting criminals. However, there are no national standards for victim assistance. Each province decides on its own the type of assistance it will provide to victims. Are you aware of this?
Ms. Illingworth: Yes.
Senator Joyal: Some provinces have no standards in place at all—I will refrain from naming my colleague’s province.
Senator Boisvenu: Therefore, we would need to have Canadian standards.
[English]
The Chair: We thank you very much. It was helpful and even more appreciated than usual, because this bill came at us from the House of Commons like a lightning bolt. You had almost no notice that we needed to hear from you today, and here you are. We do doubly appreciate having heard from you both today.
We now welcome the officials who will make all crystal clear and plain to us. We have back with us today Mary Campbell, Director General, Corrections Directorate, Department of Public Safety and Emergency Preparedness Canada.
[Translation]
We welcome back Ms. Gertrude Lavigne, who serves as counsel for the National Parole Board. She was here with us a short while ago. Joining us as well is Mr. Paul Shuttle.
[English]
He is Executive Director and Senior General Counsel, Department of Public Safety and Emergency Preparedness Canada. We are delighted to have you with us. I noticed you sitting back there listening attentively all day, so you know that we actually have questions for you.
Do any of you wish to make a statement before we begin? I heard senators raising questions; I heard Senator Boisvenu and Senator Baker, and I had a question. Maybe I will change the normal order of things and put my question first. It is a question based probably on crass ignorance.
I want to know how the system works in this one aspect. If someone is pardoned, their criminal record information is removed from the Canadian Police Information Centre, correct? If so, then how does the parole board find out that the person has committed another crime in order to revoke or cease the pardon? I told you it was based on crass ignorance.
Ms. Campbell: I am trying to be sure I am following the sequence of events. If a person receives a pardon, their criminal record in federal hands is sealed and kept separate.
For example, when a request comes in to disclose a pardoned record, which is provided for in the Criminal Records Act, what we see on the CPIC printout would be the criminal record stamped "pardoned."
The Chair: It is not removed?
Ms. Campbell: It is in the sense that it is removed from view by anyone accessing CPIC.
The Chair: This goes back to my basic principle that once you are on a list, you never get off it.
Ms. Campbell: The RCMP would be best positioned to indicate exactly how it is managed, because they administer CPIC. I am not the most technological person in the world. The record continues to exist somewhere in cyber space, but it is removed from day-to-day CPIC records. If you did a records check on someone who has a pardon, it would not show up.
The Chair: But then this person goes off and commits another indictable offence and is convicted of it. At that point, there must be a trigger somewhere that notifies the parole board that it is time to revoke the pardon.
[Translation]
Ms. Lavigne, can you answer that question?
Ms. Lavigne: In my experience, the Crown, in provincial proceedings, learns that the person about to be convicted has obtained a pardon. Obviously, when a pardon has been granted, the information cannot be used. Thus, we have to look beyond the pardon in order to be able to use this information if we want a harsher sentence to be imposed. The Crown can get this information from the police.
The Chair: Would the Crown, the court or someone else tell parole board officials about the other crime that has been committed?
Ms. Lavigne: Yes, possibly. Two things can happen. Firstly, pursuant to section 6(3) of the Criminal Records Act, they can write to the Minister of Public Safety asking him to approve the disclosure of the record. Secondly, the Crown can write to the board to keep it apprised of the situation.
The Chair: This is precisely what I wanted to know. Thank you. As I already told you, I was totally clueless as to how this works. Thankfully, I am now somewhat more knowledgeable.
Senator Carignan has the floor, followed by Senator Boisvenu.
Senator Carignan: I want to come back to the notion of bringing disrepute to the administration of justice. This is a very basic criterion, one that draws inspiration from the Charter, I believe, in so far as the exclusion of evidence is concerned. I would like some assurances that invoking this criterion will not have any perverse effects.
Let me give an example regarding evidence, from the perspective of the Charter. Evidence is not always excluded when it can impact the administration of justice, because in certain cases, doing the opposite, that is excluding evidence, could bring the administration of justice into disrepute. I want some assurance that this can never happen, that is, that the denial of a pardon could bring the administration of justice into disrepute.
So then, I want some assurances that the notion of bringing the administration of justice into disrepute is really connected to the act of granting a pardon, and not to the act of denying a pardon. And this is why I am interested in the other criteria set out in the regulations and in the training — I spoke about this to the minister earlier on. Have you already established your priorities, first regarding training and secondly regarding the other criteria, to make sure that the criterion of bringing the administration of justice into disrepute will not have a perverse or opposite effect, or be misconstrued, somewhat like we see with evidence?
This is an imported concept, but it must be adapted to make sure that there are no perverse effects. I do not know if I put my question clearly enough.
[English]
Ms. Campbell: I would defer to the two people who are officially legal counsel.
Paul Shuttle, Executive Director and Senior General Counsel, Public Safety Canada: In this statute, like in most statutes, there are multiple purposes. One is to allow for the sealing and setting apart of records at an appropriate time. The other is to ensure that there is some threshold to determine whether that is appropriate in a given case.
The bill permits that through proposed section 4.1(3), in clause 3, setting out some of those considerations. So in fact what you allude to in the Charter section 24(2) authority would be a case-by-case determination of whether, in the appropriate case — and you see those hard-wired into the bill — the circumstances are such that the board determines it is appropriate to grant the pardon if it would not be bringing the administration of justice into disrepute, or in some circumstances it may. In other words, it is precisely to allow the board to determine on the facts of the given case in accordance with the consideration set out in proposed section 4.1(3) whether the situation would warrant a pardon or not.
[Translation]
Senator Carignan: Could there be a case where the board decided to grant a pardon because not to do so would bring the administration of justice into disrepute?
[English]
Mr. Shuttle: The test under proposed section 4.1(1) is one of five tests, whether the grant of a pardon would bring the administration of justice into disrepute. I cannot imagine the circumstances that would lead to the result you have just shown, but it would be up to the board to determine on all the facts before it whether that was the result.
Ms. Campbell: Normally I would expect if it was the intention of Parliament to indicate either the grant or the denial then Parliament would say so quite explicitly, that either the grant or the denial would bring the administration of justice into disrepute. In this case, the legislation simply refers to whether the grant would bring the administration of justice into disrepute, and that has been the policy focus.
[Translation]
Ms. Lavigne: It is clear that the decisions made by the board must be in keeping with the legal framework of the enabling act. I have trouble imagining, for example, someone who committed a crime 20 years ago — this does not fall within the 10-year period — someone who has never re-offended, who has always displayed good behavior, who meets all the criteria and participates in society, which is an added value, not receiving a pardon from the board because that might bring the administration of justice into disrepute.
This decision would probably be appealed before the Federal Court and overturned, because it would be unreasonable. The legal standard would be applied to this type of decision. The decisions made must comply with the framework in which powers are granted to the board. All the tools will be developed to ensure that the board members know all the ins and outs of the new legal principles.
Senator Carignan: As concerns the criteria that will be developed to determine what brings the administration of justice into disrepute, have you begun establishing any of them? When the charter was adopted, its authors dealt with the concept of bringing the administration of justice into disrepute. They even considered polling public opinion to determine what might or might not be viewed as bringing the administration of justice into disrepute.
The Supreme Court may not have decided to conduct such polls, but could such an option be considered to determine whether a given situation, or a case where a pardon is granted, might bring the administration of justice into disrepute?
Ms. Lavigne: There are currently ongoing discussions as to the factors that will be included in the regulation. This is still being developed; there are many ideas on the table. We are studying all the angles to determine what will define the administration of justice. We must look at what can and cannot be included in the regulation, but we do not want to encroach on the discretion of the board members in doing so.
Senator Carignan: Currently, the criteria are for information purposes.
Ms. Lavigne: Exactly. And the regulation should reflect the same thing. We must make sure not to over-regulate, thereby preventing the board members from going beyond a certain point, as stipulated by regulation.
Senator Boisvenu: Welcome to our witnesses. When a citizen receives confirmation, after three, five or ten years, that he has been pardoned, this is certainly the best diploma that this ex-inmate will ever receive. I am a staunch defender of this program and it must be maintained; however, it must be applied rigorously, or else it would be like giving all the children in an elementary class a diploma without them having had to make any effort. Otherwise, the diploma would be worthless.
Anywhere from 20,000 to 30,000 ex-inmates receive a pardon each year. I am convinced that the police forces are not notified of all these pardons. What concern me most are the pedophiles and sex offenders. For example, if a pedophile obtained a pardon, is he still on file with the Quebec or Canadian Police Information Centre? Will police forces have access to his criminal record? Will they be able to identify him if they find him loitering in the vicinity of an elementary school?
[English]
Ms. Campbell: If the person has received a pardon and that pardon is still in effect, no, they will not have access to that information. If a person has received a pardon but at the same time is on the sex offender registry and is still on that registry, the officer could, of course, query the sex offender registry, or the officer will have that authority if Bill S-2 receives Royal Assent, because you will recall that gives a proactive authority to the police to make that kind of inquiry.
Of course, any time police officers see someone behaving in a suspicious manner, they can exercise their normal powers of investigation and arrest.
[Translation]
Senator Boisvenu: I am sure you understand my question. I would like to come back to the category of sexual predators and pedophiles, who are the most difficult offenders to control once they have been released from prison. It is a risk for the public to disseminate the information once the pardon has been granted. Concerning the bill before us, do you agree that we are studying it first and foremost to ensure that the public is safe from the type of criminal who represents a high risk?
[English]
Ms. Campbell: Although it was only last week, I think the original Bill C-23 removed some sex offenders from any eligibility for pardon whatsoever, and that is one option that could be considered. The option now in Bill C-23A is that those sex offenders would have to wait a longer period of time and undergo more rigorous scrutiny. You are right; there are sex offenders who reoffend at higher rates than other sex offenders. We know this from the research, and the highest group of reoffenders, apparently, is men who target young male strangers, so the scenario you give is very realistic of someone perhaps hanging around a schoolyard.
With the way the pardon system is set up, and particularly with the amendments in Bill C-23A, those amendments will go a long way to adding some rigour to the pardoning process. The person will have to wait either five years or ten years following completion of sentence and then undergo more scrutiny than is currently the case.
Is it possible that at some point there will be someone who receives a pardon and then returns to that behaviour? Yes, that is possible, I would have to say.
I would hope — and we have these discussions with our police colleagues — that anytime someone is seen acting in a suspicious way, action will be taken. That is one part of the picture. None of these mechanisms is, on its own, the sole answer. The idea is to have enough tools that the situation can be managed safely.
[Translation]
Senator Boisvenu: I would like to understand the difference between the role of the National Parole Board and that of Correctional Services in the pardon process.
[English]
Ms. Campbell: In the pardon process?
Senator Boisvenu: Yes.
Ms. Campbell: The Correctional Service of Canada does not have a role in the pardon process. The offenders, at the point of being eligible, are past the point of being involved with the Correctional Service of Canada, so they make the application on their own and it is the National Parole Board that makes the inquiries it sees fit. It is possible, of course, especially with Bill C-23A, that the board might make some of those inquiries of the Correctional Service of Canada. It is not precluded from doing that.
Senator Boisvenu: About their pasts?
Ms. Campbell: That is correct, yes.
Senator Baker: Getting back to the chair's original question as to the record of the pardon, it is my understanding that the hard copy of the record of the pardon is kept separate by the RCMP, in a separate file entitled, I imagine, "Pardon," but the information, as you pointed out, still remains on CPIC and on the other data base. I cannot remember the name of the other police data base, but it is the one that contains all the hearsay evidence. Third party evidence is sometimes used in the compiling of 500- and 600-page warrants. It remains there.
If someone commits an offence on the weekend and appears at his or her first appearance during the week, pleads guilty and wants to get it over with, the judge is able, prior to sentencing, look at the fact that that person has received a pardon for a previous offence. That must be the case or the system would not work.
Obviously, it remains there on CPIC for purposes of the police in case your pardon is violated. My understanding is, once you commit the offence and you plead guilty to it, your pardon is cancelled, and there must be a way of showing it. Is that your understanding?
Ms. Campbell: Yes. Again, without having the knowledge that someone from the RCMP CPIC group would have, it is my understanding that the file exists in space, separately, and police are able to access it under the legislated purposes. That is the idea. The pardon does not erase history, but it seals it; it is kept separate, and it is an offence for anyone to reveal the existence of the pardon or the pardoned record without authorization from the Minister of Public Safety.
Senator Baker: In the year 2000, we did a sort of reorganization of the act; regulations were passed, and forms are now in the regulations. If there are persons at risk, such as children, involved in a job, a prospective employer gets the person who is applying for a job to fill out a form. That automatically then discloses the person's criminal record and any offences for which they have been pardoned that are taken from that section.
On Senator Carignan's question as to the reverse of the applicability of the test of putting the administration of justice into disrepute, of course it still exists that one can argue that a decision on a pardon could be a denial of natural justice or of procedural fairness or an abuse of process, which would trigger the same process of violating the Charter. Would you agree with me that that will be open to someone on appeal of a decision made about a pardon?
Mr. Shuttle: A decision by the National Parole Board is a decision by a federal tribunal within the meaning of the Federal Courts Act and is subject to judicial review under the grounds you set out, correct.
Senator Baker: Exactly. As Senator Carignan pointed out, section 24(2) of the Charter comes after your legal rights, because section 24 is the remedy for violations of what comes before.
There are two remedies: sections 24(1) and 24(2). The government has taken the wording from section 24(2) — "bring the administration of justice into disrepute" — and transplanted it into this legislation.
Do you know why the rationale in section 24(1) would not have been used? Was any thought given to that? I forget the exact wording, but the rationale in section 24(1) is used in judicial stays, for example, where there are multiple violations of the Charter. However, it is a much more general standard than section 24(2), which is a very high standard, bringing the administration of justice into disrepute, as Senator Carignan pointed out.
Do you know whether any consideration was given to using the wording in section 24(1) instead of section 24(2), which would have left a practically subjective judgment on the part of the parole board and would not have been open to that high standard that is presently in the bill?
Ms. Campbell: Without touching on any cabinet confidence, I can say that many options are considered in developing the appropriate language. This case is no different than any other situation where finding the right wording to capture the policy intent may lead to a discussion of several options, and the government ultimately determines which one it feels is most appropriate.
Senator Baker: "Shock the conscience of the community" is a very well-known phrase.
Ms. Campbell: Yes, it is a well-known phrase. I am not sure that the phrase has a legal meaning in the same way that "the administration of justice" has. As Minister Toews said this morning, "bring the administration of justice into disrepute" is a phrase that has been reviewed by the courts, so there is some substance to it. There has been some discussion. "Shock the conscience" might be popularly understood, but I do not think has that same legal background.
There used to be a very useful service for words and phrases judicially considered, and I am told it is not done any longer. That was one source I always found helpful to determine where a phrase had been used and what meaning was attached to it.
Senator Baker: The unfortunate part of what the government has used in this bill is that it is common knowledge, and so the interpretation goes into the courts, that the French is not the same as the English. In section 24(2), the English says "would" and the French says "could."
I am wondering why, when you are devising new legislation, you would not change that. I know you are using the exact words that are there and that have been adjudged to be of different meaning between the French and the English, but why keep the matter open? Why not match the French with the English and settle the question rather than putting out there what already exists in case law as being a difference of meaning, one standard higher than the other compared to the French and the English?
Ms. Campbell: There has been an interesting discussion on that point today, which I will take back to my colleagues. I do not know whether you are familiar with the drafting process. A French drafter and an English drafter are in the room at the same time along with policy advisers and legal counsel, if desired. They instruct in French and in English at the same time, and the drafters draft at the same time.
Normally, everyone in the room understands what they are drafting. Now, I was not in the room at the time that some of my staff were, although I was on the telephone frequently with them. I cannot explain exactly what transpired at that precise moment, but, given the process and that French-English concordance is an ongoing issue that is taken seriously, I assure you, it is a question that I would certainly put to my colleagues at some time. Perhaps we will have an opportunity to revisit the issue.
Senator Baker: In 1987, R. v. Collins, Supreme Court of Canada, Judge Lamer made the decision. The two versions have different meaning, and yet it has survived all these years. It is a matter of some discussion depending on the province you are in and which court of appeal is making the judgment. Thank you for your answer.
Ms. Campbell: You are welcome. I would say that all drafters are very talented. We had an exceptionally talented team on this. It is a question I will ask them, if only out of interest.
The Chair: We have one brief last question from Senator Carignan.
[Translation]
Senator Carignan: My first question concerns the burden of proof. Section 4.1 states: "If the Board is satisfied that". What is the burden? Are we talking about a "balance of probabilities"? Are we talking about "beyond the shadow of a doubt"?
The bill also states, in paragraph 2 of section 4.1, that the applicant has the onus of satisfying the Board that the pardon would provide a measurable benefit to the applicant and would sustain his or her rehabilitation in society as a law-abiding citizen, but it does not talk about bringing the administration of justice into disrepute.
Therefore, the onus does not appear to be on the applicant to prove that the pardon would not bring the administration of justice into disrepute. It is as if this part of the criterion was left out, as if the applicant does not have the onus of proving that the pardon has not brought the administration of justice into disrepute. Can you explain to us why this element was not included?
[English]
Mr. Shuttle: The two matters that are made the onus of the applicant that are set out in proposed section 4.1(2) are matters known personally to the applicant, whether a pardon would provide a measureable benefit to the applicant and whether it would sustain his or her rehabilitation. As the minister said this morning, those are things known to the applicant. You are quite right in saying that the statute does not assign the third criterion as being the onus of the applicant. That third criterion is more a polycentric, polyvalent matter and perhaps is not within the sole knowledge of the applicant. We had comments about the reasonable person standard. The government did not propose to put the evidence necessary to look at that on the shoulders of the applicant or to force the applicant to make comments about systemic repercussions. Essentially, I am saying that there is a distinction between the first two matters and the third matter, which explains the choice that was made.
On the first part of your question, the statute is clear. In English, it says that the board must be "satisfied," and the French says "convaincue." They have the same meaning. The standard it takes to convince the board is normally the civil standard, certainly not the criminal standard that would apply here.
[Translation]
Senator Carignan: So to be satisfied is to not have any doubt. That is the "balance of probabilities".
[English]
The Chair: Thank you all very much indeed. It does help to have you appear and bring a different, very expert perspective to our deliberations, for which we are exceedingly grateful.
Senators, we shall meet in this room at 12:30 p.m. tomorrow. At that time, we shall conduct clause-by-clause consideration of Bill S-6, followed by clause-by-clause consideration of Bill C-23A.
(The committee adjourned.)