Blogosaurus Lex

The following is a guest blog post by Lesley Atkinson:

Lesley Atkinson is an employee of Canadian Pardon Service, an organization dedicated to assisting individuals with their applications for pardons, U.S. Entry Waivers, and File Destruction Requests. Canadian Pardon Service has over 20 years of experience in the business, and been following the pardons legislation closely since the bill was introduced on May 11, 2010.

As we all know, pardons legislation has been in the news the past few months, and the excitement surrounding it reached a feverish pitch last week when the bill was given royal assent, meaning it is now law. What is in the bill? For that matter, what IS a pardon? Read on to find out!

What are pardons?

A pardon is a government document granted by the National Parole Board (NPB) that, once granted, will ensure that a criminal record is removed and sealed from all federal databases. This does not mean the criminal record is erased or destroyed, just that its existence can no longer be verified or accessed by law enforcement (with rare exceptions). Many people decide to get pardons because they help remove many of the barriers a criminal record creates in employment, travelling, volunteering, immigration, and even child custody situations.

What is in the pardons bill that was brought in to force on June 29, 2010?

The bill given royal assent last week is known as Bill C-23A, The Limiting Pardons for Serious Crimes Act. Four major changes were made to the legislation, all of which will have a direct impact on applicants.

1) Individuals with certain convictions will be required to complete an increased “conviction-free” time period of ten years before they become eligible to apply for pardons, whereas under the old legislation they waited five years. These revised rules affect individuals with convictions for manslaughter (for which two or more years imprisonment were received), Schedule 1 indictable and summary offences, indictable offences that carried more than five years of imprisonment,  and certain service offences.

2) Those individuals who must complete the new eligibility time periods must also satisfy the NPB that the pardon would provide a measurable benefit to the applicant and that it would assist their rehabilitation into society. This is determined using a new form in the pardon application that requires the applicant to state exactly what changes a pardon would bring to their circumstances, as well as information on specific changes the applicant has made to their situation since their conviction, and also a explanation of how and why each offence was committed.

3) The NPB must agree that granting the pardon to applicants with the above offences would provide a measurable benefit to them and would assist in their rehabilitation into society as a law-abiding citizen. This would also be determined using the information from STEP 8 in the form described above.

4) The NFB will be given the power to refuse to grant a pardon if doing so would “bring the administration of justice into disrepute”. This new clause gives the NPB the power to deny pardons if they believe that it is in the best interests of Canadian law to do so, and also to protect Canada’s legal reputation both nationally and internationally. In order to determine this, the NPB can now look into the nature, gravity, and circumstances surrounding the conviction. This is the clause that gives the NPB the power to prevent Karla Homolka from ever getting a pardon.

This bill was given royal assent by the Governor General on June 29, 2010, bringing this legislation into force. The NPB immediately began processing all new pardon applications under the new guidelines listed above. If you are looking for more information on criminal records, pardons, types of offences, and the newly passed legislation, including more details on the new waiting times, please visit the blog at pardons.ca.

You can call the Pardons Info Line at the NPB at: 1-800-874-2652
PLEASE NOTE: You do not need a lawyer or representative to apply for a pardon.

Useful Links:

Bill C-23A in its entirety:
http://www2.parl.gc.ca/HousePublications/Publication.aspx?Docid=4644679&file=4

National Parole Board – Fact Sheet about Pardons:

http://www.npb-cnlc.gc.ca/infocntr/factsh/pardon-eng.shtml

List of Schedule 1 Offences:
http://laws.justice.gc.ca/eng/C-47/page-6.html#anchorsc:1

Information about Bill C-23A released by the Ministry of Public Safety:
http://www.publicsafety.gc.ca/media/nr/2010/nr20100630-1-eng.aspx

NPB Fact Sheet – Pardons:
http://www.npb-cnlc.gc.ca/infocntr/factsh/pardon-eng.shtml

New Pardon Application and Guide from the NPB:
http://www.npb-cnlc.gc.ca/prdons/pardon-eng.shtml

Recent news about the Pardons Legislation:
http://www.montrealgazette.com/news/Pardons+rarer+serious+crimes/3214374/story.html

A news article featuring comments by the Elizabeth Fry Society:
http://www.canada.com/news/Bill+block+Karla+Homolka+from+criminal+pardon+final+stages/3188055/story.html

Concerns about the speedy passage of bill C-23A:
http://www.thehilltimes.ca/page/view/homolkabill-06-28-2010

A recent court decision and the proclamation of a new federal law offer an  interesting study in contrasts.   On February 22, 2010 a statute that amends the Criminal Code came into force.  It is called the Truth in Sentencing Act, a label that seems more ideological than merely descriptive.

The Act changes the way that judges can deal with prisoners who have spent time in remand centres prior to their trials being held.   Previously, judges had the discretion to credit days that accused persons spent in remand on a two-for-one and sometimes three-for- one basis to their  after-conviction jail sentences.  Now:

• a judge may allow a maximum credit of one day for each day spent in pre-sentence custody;
• if the circumstances justify it, a judge may allow a maximum credit of one and one-half days for each day spent in pre-sentencing custody;
• if the person’s criminal record or breach of conditions on bail was the reason for the pre-sentencing custody, a judge may not allow more than one day’s credit for each day spent in pre-sentencing custody;
• At a bail hearing,  if the judge orders that an accused who has a criminal record be placed in custody, the judge must then state his or her reason on the record, so that the judge who later sentences the person knows the reason for the pre-sentence order, preventing that judge from allowing more than one day’s credit for one day in pre-sentencing custody; and
• A judge who decides to allow credit for pre-sentencing custody must give reasons for the decisions and state those reasons on the record, including the amount of time credited, the sentence actually imposed, and the term of imprisonment that would have been imposed if credit had not been given for pre-sentencing custody.

The new rules for pre-sentence custody apply only to persons charged after the law comes into force.

The new law comes close on the heels of a decision by the Alberta Court of Queen’s Bench Justice Richard Marceau, which deals with the horrible conditions in the Edmonton Remand Centre, and how these conditions amounted to breaches of the prisoners’ rights under the Charter of Rights.

The case dealt with a number of inmates at the Edmonton Remand Centre, who asked for declarations that their Charter rights to be free of cruel and unusual punishment; arbitrary and unreasonable search and seizure; racist and discriminatory treatment; and unfair disciplinary hearings and punishments had been violated.  The inmates had been held in Remand for very long periods while awaiting trial on a massive drug-trafficking case. Justice Marceau agreed that their Charter rights had been breached in several ways.  He found that:

• inmates were locked up two to a cell for 18 -21 hours a day with limited access to recreation or other activities for months, and for some, for years at a time.  This was cruel and unusual punishment under s. 12 of the Charter and the breach shocked the conscience and was grossly disproportionate treatment;
• instances of supplying inmates with communal underwear that was sometimes not properly laundered was also a breach of s. 12 and did not meet public standards of decency;
• the s. 7 Charter guarantee of liberty was breached because the inmates were not told the basis for their security classifications or given an opportunity to appeal them; and
• the use of racist epitaphs and jokes against some inmates was a breach of their s. 15 Charter guarantee of equality under the law.

The Alberta government stated that many of the problems that led to this decision have been addressed, and that a new Remand Centre with a much larger holding capacity is due to open in 2012.

How do we reconcile the new law with the recent court decision?  One of the rationales given for the new law is that accused persons through their lawyers deliberately stall trials so that they can take advantage of the judges’ discretion.  But no credible evidence exists that this takes place, criminal defence lawyers vehemently deny it, and given the dreadful conditions in many remand centres across the country, is it really likely that this is commonplace?   The Edmonton Journal, in an editorial in its February 26, 2010 edition stated:

“Over the past 20 years, more accused persons in Canada have been spending more time in jail awaiting trial. What’s more, the conditions under which they’ve been kept have, on the whole, worsened. By passing Bill C-25, the government has assumed a responsibility to ensure these conditions improve. If time served before trial is to be treated as legally the same as time served after it, the conditions under which the two stretches are lived cannot differ as drastically as they do today.”

If the government does not take steps to improve the conditions in the nation’s remand centres, then many more Charter challenges to the new law are likely to ensue.

Presumed Guilty, a story of a man caught in a justice system and fighting to regain his freedom, will be shown as a part of Edmonton’s DocSoup festival, presented by Global Visions Film Festival and Hot Docs.

Under Mexican law, one is guilty until proven innocent. José Antonio Zuñiga of Mexico City was convicted of murder and sentenced to 20 years based on the testimony of a single eye witness. The film follows Zuñiga and his two lawyers as they undertake the seemingly impossible task of having the case re-tried.  “Through one man’s extraordinary two-year struggle to regain his freedom, Presumed Guilty documents the contradictions of a judicial system that presumes guilt.”

Presumed Guilty shows how [Zuñiga]’s strength and creativity help him through nearly three years of wrongful imprisonment. Courtroom scenes chillingly call to mind Kafka’s The Trial, so absurd is the mindless bureaucracy in the judicial process. Toño is retried by the same judge who condemned him. The prosecutor is concerned only with the previous case file and has no interest in new information. The police officers refuse to co-operate, insisting they do not remember Toño’s arrest. It is revealed that the only witness to implicate Toño had himself originally been accused of the crime, then learned of Toño through the police. Hernández and Negrete uncover a frustrating, labyrinthine legal system defended by mediocre civil servants and corrupt police officers. (TIFF)

Presumed Guilty will be screened on Thursday, January 7, 2010 at 7:00 pm at Metro Cinema, Zeidler Hall in the Citadel Theatre, 9828 – 101A Avenue.

Tickets are $10 at the door.

Howard Sapers released a report last week entitled Good Intentions, Disappointing Results. The report is critical of the government and the Correctional Service of Canada (CSC)  saying that the federal government needs to take “urgent action” to improve support programs for native prisoners or face a potential crisis. “Today my message is clear — given the urgency of the situation, I call upon the service to do the right thing and immediately appoint a deputy commissioner for aboriginal corrections,” Sapers said in a statement.

Howard Sapers was appointed the federal Correctional Investigator in Feburary 2004. The primary function of the Office of the Correctional Investigator  is to investigate and bring resolution to individual offender complaints. The Office as well, has a responsibility to review and make recommendations on the Correctional Service’s policies and procedures associated with the areas of individual complaints to ensure that systemic areas of concern are identified and appropriately addressed.

Sapers has been a Board Member of the Legal Resource Centre of Alberta Ltd. since 2007.

You can read his full report here: http://www.oci-bec.gc.ca/rpt/pdf/oth-aut/oth-aut20091113-eng.pdf

This is an amazing film which shows the struggles three women face as they leave the Edmonton Institution for Women and try to build a new life on the outside. Several of the staff  had the privilege of seeing this powerful film in March, and I recommend you go see it if you have the chance.

Watch the trailer

Northern Alberta Alliance on Race Relations Proudly Presents:

“The BANG You Feel”

“a DISQUIETING dose of reality”
“Shocking”
“Anyone and everyone working with women NEEDS to see this film.”

‘The BANG You Feel’ is a 40 minute documentary that follows the stories of three aboriginal women attempting to rebuild their lives after leaving prison. Set in Edmonton, Alberta, ‘The BANG You Feel is a compelling look at addiction, support and hope.

Come Join us on Friday, November 6th, 2009 at noon
#4, 10865-96 Street Edmonton, Alberta

RSVP to Trevor Gladue @ 780-425-4644 ext.113 or by email tgladue@naarr.org

This video Produced by:
Bearpaw Media Productions, a division of Native Counselling Services of Alberta
www.bearpawmedia.ca