Law Times

PAGE 2 NEWS June 28, 2010 • Law Times New pardon rules may spark quagmire French wording in rushed bill a recipe for appeals: senator BY TIM NAUMETZ For Law Times OTTAWA — The decision by the House of Commons to rush through an overhaul of criminal pardons may result in a quag- mire of appeals over a major hurdle for obtaining them un- der the new regime, says Liberal Senator George Baker. The sticking point could be the inclusion of a term from the Charter of Rights and Freedoms as one of the conditions that would allow the National Pa- role Board to grant a pardon af- ter an offender has passed a new wait time of 10 years following completion of a sentence. Under the legislation, pa- role board panels will be able to grant pardons if the appli- cant has been of good conduct and not been convicted of an offence under any act of Par- liament. At the same time, the pardon would provide a "mea- surable benefit" to the appli- cant, would "sustain" rehabilita- tion, and "would not bring the administration of justice into disrepute." In the French version of the new bill, as well as the s. 24 Charter term, the same phrase allows for a pardon as long as it's not "susceptible" to bring- ing the administration of justice into disrepute. Courts have in- terpreted the French word "sus- ceptible" to mean "could." The meaning is critical in Charter cases dealing with s. 24 in which evidence is being challenged on the grounds that the manner in which it was ob- tained infringed or violated an individual's rights. The "could" threshold requires less certainty to prove. National Parole Board mem- bers aren't judges, Baker notes. While many of them are qualified and must pass written and oral exams before getting a position on the board, they're not trained in legal interpretation. "These are parole board members, not judges, and this could increase the number of appeals to Federal Court," he tells Law Times. Ottawa defence lawyer Mark has chosen to be heard. He notes that was the first s. 24.2 case for excluding evidence and believes the new legislation will only add to the roadblocks and difficulties it already presents for offenders seeking pardons. "The Criminal Records Act is not criminal legislation, so it won't be interpreted strictly in It turns it into a more political hearing, really — not political in the sense of people being appointed politically but that the public perception of the justice system is going to have a big impact on what happens here. Ertel goes further, saying pa- role board members, unlike the courts, will likely not be bound by a 1987 Supreme Court of Canada decision, R. v. Collins, that ruled all courts must use the lower-threshold French in- terpretation regardless of the language in which the accused favour of the accused person or the person applying for the par- don," Ertel tells Law Times. "It would be interpreted in a pur- posive way, which is trying to figure out what the purpose of the legislation is. The purpose of the legislation, it would seem to me, is to give less people Accurate • Reliable • Up-to-date Your source of essential legal contact information from Canada Law Book's renowned directories group. Find the names and numbers you need in the Atlantic provinces – and in Alberta, Northwest Territories, Yukon and Nunavut. Includes e-mail addresses! Connect to Canada's legal network! Get your Atlantic and Alberta Legal Telephone Directories for 2010-2011 Order your copies today at: canadalawbook.ca For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book is a Division of The Cartwright Group Ltd. AtlanticDrty_LT_June28_10.indd 1 www.lawtimesnews.com MERGING TRADITION WITH TECHNOLOGY 6/23/10 3:51:40 PM pardons. If it's not to give less people pardons, it's to make it harder or more difficult to give a pardon and admit into the pardon regime an element of discretion." Ertel adds: "It turns it into a more political hearing, really — not political in the sense of peo- ple being appointed politically but that the public perception of the justice system is going to have a big impact on what hap- pens here." The legislation is titled bill C-23A because opposition and government MPs unanimously singled out one element of an- other proposed set of amend- ments to the pardon and parole system and passed it through all Commons stages, including "deemed" committee passage, in two minutes as they rushed into an early summer recess be- ginning June 17. The bill specifies manslaugh- ter as among the personal injury offences the pardon terms cover, a designation aimed at prevent- ing Karla Homolka from apply- ing for a pardon in July. MPs believed that had they waited until Parliament's re- sumption in September to pass the original bill in its entirety, it would have been too late to pre- vent Homolka from qualifying for a pardon this summer. However, Baker says National Parole Board officials indicated Homolka might not have been eligible for a pardon application until December under the exist- ing regime because of a series of conditions a Quebec judge ini- tially imposed upon her when she left prison in 2005. LT

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