May 17th, 2011
In 2010, the Government introduced Bill C-23 for reforming pardon legislation into Parliament. Prompted by the approaching pardon eligibility Karla Homolka (convicted of sex-related manslaughter), Parliament ultimately split the law into two bills: C-23A, which was duly passed, and C-23B, which was remanded for further parliamentary debate. A significant number of the adopted and planned amendments pertain specifically to sex offenders.
Prior to the passage of C-23A, the rules regarding pardon eligibility were relatively simple. With the exception of crimes carrying life or indeterminate sentences, which are excluded from pardon eligibility, the law did not distinguish between specific Criminal Code offences. It merely imposed a pardon ineligibility period of three years after completing one’s sentence for a person who had committed a summary offence and a period of five years for a person who had committed an indictable offence. With the passing of Bill C-23A, a number of crimes considered particularly serious were given separate treatment. Besides increasing the pardon ineligibility period for violent personal injury offences (per Section 752 of the Criminal Code), the law was specifically amended to address sexual offenders:
• The pardon ineligibility period for a summary sexual conviction is now five years after sentence completion.
• Likewise, a person who commits an indictable sexual offence must wait 10 years before they become eligible for a pardon.
An omnibus bill covering all crime-related legislation that was outstanding when Parliament was dissolved in March is to be proposed by the Government after Parliament reconvenes on 30 May. This bill is to take over the provisions contained in the now-defunct Bill C-23B, including further tightening of the law as regards sex offences. Specifically, people who commit sexual offences involving minors are among those who are to become ineligible for a pardon.
Tags: bill c-23, Bill C-23A, Bill C-23B, canada pardons, pardon, pardons
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May 16th, 2011
As Canadians with a criminal record await the passage of tougher pardon rules after Parliament reconvenes on 30 May, there are hopes that the proposed law will be softened in some respects. While the new majority government has the power to pass all its proposed legislation, what was said about Bill C-23B in the previous Parliament indicates that the government might be willing to make some concessions.
During the original debate, opposition parties heavily criticized the harshness of the proposed law, leading the Conservatives to agree that certain provisions could be negotiated. When the law is re-introduced, its more problematic aspects might resurface during debates, and there is a possibility that the Conservatives will be willing to accept a few amendments should they be proposed by other parties. At 102 seats, the NDP, which was among the strongest critics of the crime reforms in the previous Parliament, has a significant minority voice; a strong opposition can propose many amendments and will generally be more vocal in Parliament.
Based on what was criticized in Bill C-23B during the 2010 debates, the following points may be contentious:
• The three-strikes rule. The Government is proposing that all those convicted of three or more indictable offences be ineligible for a record suspension/pardon. This would keep criminalizing a sizeable number of offenders (one criminal act often results in being charged with three or more offences).
• Lengthening the ineligibility periods. Currently, to be eligible for a pardon, a person must normally wait 3 years after completing their sentence for a summary offence and 5 years for an indictable offence. The Government wants these periods lengthened to 5 and 10 years respectively, a measure that would hinder people from reintegrating into society for longer.
For the moment, however, these amendments are pure speculation. A radical reform to pardons is on the table and even these concessions would be minor overall.
Tags: bill c-23, Bill C-23B, C-23, canada pardons, pardon, pardons
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May 6th, 2011
The results of the latest election are in: Prime Minister Stephen Harper’s Conservatives have won another mandate, this time with a majority in Parliament. It can now be expected that Harper will have no problems in getting his proposed legislation passed this time around. How does this affect Bill C-23B, which was set to make pardons more difficult to get? Formally, the original bill died with the dissolution of Parliament in March, together with all other bills that were before Parliament at the time. However, as part of his election platform, Harper has promised to combine all the crime bills that were not passed into one giant bill, and to have it passed within 100 days of Parliament resuming. Only a few weeks remain until Parliament reconvenes, and with the majority government, it can be expected that an amendment more or less identical to Bill C-23B will be passed without difficulty.
Following is a summary of the planned change to the law. Pardons are to be renamed “record suspensions”, in order to be in line with the notion that the Government does not forgive crime. The purpose of a record suspension will continue to be the sealing of criminal records. The difference will lie in making the application process more daunting:
• The pardon ineligibility period will be lengthened. For summary offences, it will go from 3 years after serving your sentence to 5 years; for indictable offences, it will go from 5 to 10 years.
• Record suspensions will not be available to those who commit 3 or more indictable offences. As one crime often involves 3 or more charges, this is a particularly draconian proposal. The most serious offences, and all sexual offences involving children, will not be eligible for a record suspension.
• According to the current system, all applicants who meet the eligibility criteria and submit a properly prepared application get a pardon. Under the proposed legislation, it will become significantly more arbitrary. The onus will be on the applicant to demonstrate to the Parole Board that they are rehabilitated, and the Board will be given the discretion to deny those applicants it considers not to be deserving of a record suspension, based on subjective criteria relating to the commission of the offence.
So for pardon applicants, a crucial change is imminent within the next few months, if not sooner. As the Conservative government has a majority in Parliament, the passage of legislation more or less identical to Bill C-23B has become a foregone conclusion. Once pardons become record suspensions, it will take longer to seal a criminal record, if the request is granted at all under the new, more arbitrary criteria. This is why starting the process of applying for a pardon at the absolute earliest possible opportunity would be a good idea: there is still just a little time left to do it under the less stringent existing rules.
Tags: bill c-23, Bill C-23B, C-23, canadian pardon, pardons
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January 28th, 2011
Once issued, a US entry waiver allowing a foreigner with a criminal conviction to enter the USA is not permanent. It is issued for a specific period of time, normally 1, 2 or 5 years, and then must be re-applied for. Exactly how long a waiver will be valid for depends on a number of factors:
• Since at least 2007, it has become standard practice to issue a one-year waiver to a first-time applicant. A subsequent application may yield a waiver that will have a longer validity.
• A factor that is likely to influence the decision of the Department of Homeland Security as to the period for which your waiver will be valid is the seriousness of your conviction. The less serious a crime you have committed, the longer your entry waiver is likely to be valid.
• Another factor that will be considered on top of everything is your reason for wanting to travel. This will have to be stated when applying for a waiver, and when you actually get to crossing the border, you may need to prove that you are actually travelling for the purpose entered on your waiver. For example, if your waiver was issued for business purposes and you decide to travel for pleasure, you may have a problem at the border if you cannot show that you have a business engagement in the US.
This is why it is necessary to clearly indicate whether you intend to use the waiver just for business or for pleasure or for both, and whenever you apply or re-apply, to provide evidence that you are continually in a state of being rehabilitated. This will increase the chances that Homeland Security will issue you a long-term US entry waiver, meaning you will be hassled by this procedure less often. Remember also that every time you reapply, it needs to be done well ahead of your anticipated travel time, as it normally takes months for a US entry waiver application to be processed.
Tags: u.s entry waiver, U.S. Entry Waivers, united states
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January 27th, 2011
So far, we have contrasted Canada’s pardons process with that of the USA; while the former is limited by rules laid down by law and is likely to be made even stricter if Bill C-23B is passed in Parliament, the latter tends to be much more arbitrary: the President may pardon any federal offence at any time for any reason, while the Governors of some states have similar powers regarding state crimes. But the recent wave of high-profile pardon cases that outgoing Governors dealt with has stirred controversy and the standing pardon rules are being questioned.
Even when the US Constitution was adopted in the 18th century, there were critics of the President’s prerogative to pardon criminals, who felt that it would be a continuation of the arbitrary power of European monarchs that was so unlike the democratic values of the new nation.
In late 2010 and early 2011, many pardons were considered by Governors before ending their terms of office, some of them for famous, long-dead people. In Florida, a petty crime alleged to have been committed by Doors singer Jim Morrison was pardoned; in New Mexico, however, a murder for which gunslinger Billy the Kid was said to have been promised a pardon in exchange for giving evidence in court remained unpardoned as the Governor could not find enough evidence that the pardon had actually been promised. In California, Governor Arnold Schwarzenegger was heavily criticized for shortening the sentence of Esteban Nuñez (involved in a stabbing death), who just happened to be the son of a former Speaker of the state’s legislative assembly, Fabian Nuñez , while declining to do so in the cases of numerous “ordinary mortals”. This has prompted Assemblyman Allan Mansoor to propose amending the state constitution to require a Governor to give victims and other concerned parties 30 days’ notice before granting a pardon.
In Tennessee, Governor Phil Bredesen issued a last-minute reduction by nine years of the jail sentence of a woman who had killed her aunt. Although the Governor was told that Shawnda James had shot Kelly James following an argument, evidence was found that the murder had been premeditated and that the offender had taken her aunt’s jewels. The commutation not only disgusted citizens; it prompted Representative Eric Watson to file legislation which, if passed, will require the Governor to announce a planned pardon, commutation or exoneration to the Attorney General and District Attorneys, who will communicate the Governor’s intent to victims’ families.
Since pardons should serve as checks and balances on the justice system, rather than incentives to state-sponsored injustice, it would make sense if more states followed suit with similar measures.
Tags: canada pardons, canadian pardons, pardons canada, united states
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January 26th, 2011
In anticipation of the changes that are set to occur in the pardons process if Bill C-23B is passed when Parliament reconvenes at the end of this month, it might be of interest to discuss one of the more cosmetic aspects of the proposed changes to the pardon law. That the actual criteria for obtaining a pardon will be made more stringent is beyond question; the formal change that is set to take place is to replace the current legal term “pardon” with “record suspension”.
As with everything else that the bill intends to achieve, the purpose of renaming pardons to record suspensions is to make the law tougher on criminals. Since the term “pardon” implies excusal or forgiveness, the government is sending a message that your crime will never be excused, even if your criminal record is sealed. Obviously, this will appeal to those who support the government’s effort to get tough on crime, but might not please people who believe that even a criminal deserves a second chance.
But this underlying issue aside, there may be other, more technical reasons why changing the term to “record suspension” may serve to clarify the terminology. As we have learned by now, a pardon as granted by the Parole Board of Canada has a limited effect: neither can it shorten a sentence, nor does it erase a criminal record. It merely makes the record inaccessible to criminal record checks three to ten years AFTER you have completed your sentence IN FULL. Thus, even under current laws, one can hardly talk about the crime being forgiven; the pardon merely helps you re-integrate into society. Contrast that to the pardons given on occasion by the Governor General under the royal prerogative of mercy: these have the power to shorten or even cancel a sentence, to deem that a conviction was in error and to completely expunge a conviction, as the case may be. This is much more like an excusal. By restricting the term “pardon” solely to such exceptional cases and by calling the former procedure a “record suspension”, the law could be seen as clarifying the true nature of each process.
Tags: get a pardon, pardons, pardons canada
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January 25th, 2011
The recent media attention surrounding former junior hockey coach Graham James, who was convicted of sexual abuse of young players, was pardoned after serving his sentence, and was recently arrested again on further charges, has resulted in more stringent performance of criminal record checks by the RCMP. This is causing difficulty for those who plan to do volunteer work with children, the elderly and other vulnerable people, as a background check is a prerequisite before they can take up a position in these fields, and current waiting times are in the range of several months, by which time it may not be possible for the applicant to take up the position for which they have applied. Even long-time volunteers have found they now have to get a criminal record check done, causing more of a hassle for them and the agencies they work for.
The reason for the delays lies in the manner in which information is processed. A convicted criminal may change their name and fail to report this fact to the police, making it harder for their conviction to be discovered. For this reason, applicants’ birthdates are checked against police records, which, however, results in many more matches turning up, which the police then have to sort out. The criminal record check applicant’s fingerprints are also collected and should help in identifying him, but a local police department may not have a fingerprint scanner, and sending fingerprints to Ottawa for identification rather than processing them electronically adds a lot of time to the application process.
A solution proposed in the Calgary Herald on 20 January is that sexual offenders should simply not be eligible for a pardon, which would exclude them by default from volunteering and render the deeper criminal record check redundant in their case. Alternately, police departments should get fingerprint scanners and the rules should be changed so that a convicted person’s name change is automatically reported to the police, rather than leaving this up to the offender.
Tags: canada pardons, criminal convictions, criminal record, criminal record check, criminal records
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October 22nd, 2010
Graham James, a high-profile hockey coach in Western Canada in the 1980s and 1990s, was first convicted in 1997 of 350 cases of sexual assault against Sheldon Kennedy and another unnamed player. In 1997 James was sentenced to three and a half years in jail and was paroled in 2001. Once James became eligible, he was granted a pardon in 2007 by the PBC.
This information was not made public until April 2010, after Theo Fleury released his autobiography “Playing with Fire” in the fall of 2009. The memoir alleges that James molested him for years starting at the age of 14, when he began playing on the Moose Jaw Warriors. In January 2010 Fleury filed a criminal complaint with the Winnipeg City Police. When this became public two more former players made allegations about James, leading the Winnipeg City Police to an investigation that’s still in progress. On October 13, 2010, Winnipeg police issued a Canada-wide warrant for James, who is facing nine new charges from three alleged victims (including Fleury) spanning the late ’70s to the mid ’90s.
The news of his pardon has provoked outrage and has led to proposed changes in the Canadian Pardons system and talk of revoking James’ 2007 pardon. Receiving his pardon in 2007, gave James the freedom to move to Spain. There he quietly continued to coach junior hockey until it was quickly found out and reported to the Spain Hockey Association. This fall the government compromised; instead of refusing to give pardons for those who have committed lewd sex crimes, MPs simply increased the waiting period to 10 years from the previous five. This measure is a mere band-aid used to cover up the issue, and will not be the long term solution.
Tags: canadian pardons, Graham James, pardon, pardons, revoke
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October 14th, 2010
“You’re not a criminal until you get caught,” this is not necessarily a true statement, but you wouldn’t be interested in receiving a pardon hadn’t you been breaking the law. About ten percent of Canada’s population has a criminal record; representing approximately 3.3 million (so you’re not alone). Statistics show that over eighty percent of people applying for a pardon fail to be pardoned due to minor errors or incorrect documentation in their application forms.
The National Parole Board recorded granting:
- 14, 748 pardons in 2006-07,
- 24,846 in 2007-08
- 39, 628 in 2008-09 and
- 24, 134 in 2009-10.
The Criminal Records Act authorizes the Parole Board of Canada to grant or refuse to pardons to persons convicted of offences under the Federal Acts and Regulations. The Parole Board of Canada also has the authority to revoke a pardon or, under specific circumstances, declare that a pardon ceases to have effect.
The decline in pardons granted in the last two years is a result of the National Parole Board responding to public outcry from and intense media coverage of the notorious Karla Homolka case. CBC News states, “It’s going to be harder to get a pardon in Canada.” Since, the Conservative government introduced legislation in May 2010 to drastically overhaul the pardon process, essentially eliminating pardons as such in favor of “criminal record suspensions,” and making many offenders ineligible. The changes in the pardons process reflect the seriousness of the application/documentation. This proves the value of third party services to the customers, as they strive for customer satisfaction. Third-party pardon services are there to guide you through this cumbersome process in order to get it over with and move on. The paperwork is overwhelming and a refused pardon application can cause you to lose money, potential wages and more than two years of your time. Considering the process and the length of time, the fees are well worth your peace of mind.
Tags: pardon, pardon services, pardons, third party
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August 27th, 2010
This is part three of my post on Crimes of Moral Turpitude. Today we look at convictions that are not held to be Crimes Moral Turpitude. If you have a criminal conviction for a crime on the list below, it is not likely that you will need to obtain a US entry waiver before crossing the American border.
NOT Crimes of Moral Turpitude:
- Damaging private property (where intent to damage not required)
- Breaking and entering (requiring no specific intent to commit a crime of moral turpitude)
- Passing bad cheques (where intent to defraud is not required)
- Possessing stolen property (if guilty knowledge is not essential)
- Joy riding (intention to take permanently not required)
- Juvenile delinquency
- Black market violations
- Breach of the peace
- Carrying a concealed weapon
- Desertion from the Armed Forces
- Disorderly conduct
- Drunk or reckless driving
- Drunkenness
- Escape from prison
- Failure to report for military induction
- False statements (that do not amount to perjury or fraud)
- Firearms violations
- Gambling violations
- Immigration violations
- Liquor violations
- Loan sharking
- Lottery violations
- Possessing burglar tools (without intent to commit burglary)
- Smuggling and customs violations (without intent to commit fraud)
- Tax evasion (without intent to defraud)
- Vagrancy
- Simple assault (does not require an evil intent or depraved motive, although may include use of a weapon that is neither dangerous nor deadly)
- Bastardy (the offence of begetting a bastard child)
- Creating or maintaining a nuisance
- Incest (when a result of a marital status prohibited by law)
- Involuntary manslaughter (when killing is not the result of recklessness)
- Libel
- Mailing an obscene letter
- Mann Act violations (where coercion is not present)
- Riot
- Attempted suicide
- A conviction or admission of having committed the essential elements of a criminal attempt or criminal act of aiding and abetting, accessory before or after the fact, or conspiracy where the underlying crime itself is not deemed to involve moral turpitude
An interesting side note is that US Customs used to consider adultery to be a crime of moral turpitude. However, US Congress struck it from the list back in 1981.
You can also click here to read the official government list, it’s much more complicated, be warned! Alright, now you know exactly what criminal convictions make you ineligible to enter the United States, as well as the convictions that you can have and still be allowed across the border.
Tags: American borders, Crimes of Moral Turpitude, criminal convictions, criminal records, u.s entry waiver, U.S. Customs, united states
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