Reintegration For Those Who Can Pay

As news that Graham James - who had sexually abused a number of his players during his time as a youth hockey coach - had obtained a pardon surfaced (read 4 April 2010 article by Bronskill and Cheadle), the government quickly scrambled to respond as it did when a similar controversy arose in October 2006 (read 8 April 2010 article by Neil Morrison). This time, the Conservatives introduced Bill C-23, which proposed to make a number of changes to granting of pardons including eliminating pardons for a number of offences. The bill also sought to change the term "pardon" to "record suspension" as it was argued by 'Public Safety' Minister Vic Toews that "It's not the state's business to be in the forgiveness business" and that the new term better reflected what a pardon actually accomplishes (read 12 May 2010 article by John Ward).

In the month following the May 2010 tabling of the bill, the government routinely stoked the ire of the public by claiming that if the legislation was not passed by the House of Commons and Senate before the summer recess that ex-prisoners like Karla Homolka would take advantage and apply for a pardon. As there were numerous problems with the original piece of legislation, the NDP initiated a compromise whereby the bill would be split and enough support could be generated to pass Bill C-23A - an act that would give the Parole Board of Canada the ability to reject pardons if they determined that granting a pardon would "put the administration of justice into disrepute". This bill was passed and received Royal Assent on 29 June 2010.

With a manufactured 'crisis' averted, there were hearings in the Senate concerning the retrograde 'reforms' to the pardon system in Fall 2010 (September-October 2010; November 2010). During this time, the federal government raised the pardon application from $50 to $150, which took effect on 29 December 2010 (read Parole Board of Canada notice; read article by Tonda MacCharles).

As "the parole board told the government it would need more staff, training and funds because a recently passed law requiring it to assess the behaviour of pardon applicants to ensure granting one would not "bring the administration of justice into disrepute"" (read CBC News article here), Toews stated that user fees for pardon requests should be raised from $150 to $631 so that "criminals pay their own way" to bankroll the skyrocketing cost of the short-sighted policy change his government initiated (see CPC press release).

To support the proposed user fee hike, Toews took it upon himself to speak for every resident of this country, noting that "Canadians are right to expect that convicted criminals be held fully accountable for their crimes... That's why our government is proposing that criminals pay for the administrative costs of applying for pardons" (read article by Daniel Leblanc).

He also noted that "There are numerous examples of law-abiding Canadians being required to pay administrative application fees, and it is wrong that criminals are being subsidized in this manner" (read article by Mike De Souza). He did so, while not acknowledging the fact that most government user fees (e.g. to process driver's licences and health cards) are subsidized.

Toews added that "[i]ncreasing the user fee will contribute to the effectiveness and long-term sustainability of the Parole Board of Canada's pardons program, which is not sustainable at the current cost, and ensure it is able to continue to meet its mandate". He said this when it was his government who generated this useful 'crisis' (from their vantage point), which could have easily been avoided had legislators taken the time to properly study the full implications of the measure they passed. But, as is the trend, these kinds of deliberations are increasingly being jettisoned in favour of rash decision-making in the face of the hollow platitudes that have become synonymous with the so-called Conservatives and their tagline 'just us' campaign.

Over the years, many have argued that Canada has a two-tier justice system where the rich and poor are policed differently, have differential access to good lawyers during court proceedings, and are adjudicated and sentenced accordingly. Yesterday's user fee hike proposal for processing pardons would be, if implemented, another example of the inequities that are perpetuated by the penal system in this country. This fact was reflected in a story by the Canadian Press who reports that "Toews acknowledged it means some people will be better able to afford a pardon than others" (read article here).

Minister Toews acknowledgement that the fee hike may result in some criminalized persons not being able to afford to apply for pardons suggests that he knows full well that many of these individuals are unable to obtain gainful employment to raise funds for such an expenditure because the stigma of 'offender' remains with them long after they have served their sentences. If this is acknowledged, it also needs to be noted that the increase in user fees for pardon applications will essentially condemn otherwise eligible individuals who cannot afford the price tag to perpetual condemnation long after 'justice' has been served.

In an interview on CBC's Power & Politics, Toews was pressed on this issue in the following exchange with host Evan Solomon (watch minutes 0:02:00 to 0:08:38):

Solomon: ...the question is are you double-punishing people who have paid their debt, their burden of debt to society? [...] a lot of people, you heard it from the Elizabeth Fry Society, they're poor, they cannot afford to pay $600 and they want to reintegrate and if you refuse to grant them a pardon after their crime free you may actually end-up paying more in social services. You can't reintegrate these people. After all Minister, they have paid their debt to society.

Toews: No they haven't, they have a criminal record and that criminal record is there for a very specific purpose. It's to warn other individuals that this individual has committed a criminal offence. We simply do not allow [a pardon for] let's say a child sexual predator whose been convicted of a crime. Just because that individual has served their sentence, doesn't mean he has served his debt to society. That criminal record serves a very important protective purpose for society at large.

Having stated his position concerning the need to perpetuate the stigma of criminalization, pointing to the most sensational and rare examples to justify his case, the Minister seemed to discount the impact that a $631 user fee for processing pardon applications could have on affected individuals:

... Now remember each person, before they can apply for a pardon before the Parole Board, must have a five-year crime free period or a ten-year period in the case of more serious crimes. I would suggest that a criminal can pay something if that person has been on the straight and narrow for the last five to ten years towards that pardon.

This comment reflects that the man responsible for 'public safety' in this country is either completely out-of-touch with the realities faced by criminalized populations or simply does not care. As noted by Kim Pate, the Executive Director of the Canadian Associations of Elizabeth Fry Societies, if this policy were to be implemented it would be tantamount to "asking people to essentially stay stuck in poverty". If this was the case, "what are their options if in fact they can't afford a pardon?"

Such a consideration does not appear to factor into the decisions of the minority Conservative Government of Canada who have proven themselves to be willing to step on the necks of the marginalized when they are down, while also disregarding the value of giving people the opportunity to turn their lives around. By restricting pardons further, the Minister of 'Public Safety' is also undermining the objectives of his own office by perpetuating the very conditions in the lives of individuals - poverty, hopelessness and despair - that lead many to commit 'crimes' in the first place.

This position was echoed by Liberal Public Safety Critic Mark Holland and NDP Public Safety Critic Don Davies who were also interviewed by Solomon (watch minutes 0:28:15 to 0:36:28). Noting the proposed four-fold increase in the user fee to process a pardon application, Solomon opened the floor to Holland to express his thoughts:

... if you create barriers... if you create a wall that people can't jump over then your in a situation where those people are trapped in poverty. They can't get good jobs, they can't pay taxes, so it costs the government infinitely more to trap that person in poverty, potentially put them in a situation to be on social assistance, instead of making sure they have an opportunity to be an equal citizen... it seems like it's Halloween everyday for Vic Toews. He's constantly trying to scare people. But the reality about who we're talking about is non-violent offenders.

[...]

If you look at any other jurisdiction, where you're successful is where you reduce barriers to becoming productive members of society. When you have someone who is given the opportunity to be given a job, and to better themselves, pay taxes, and get involved in the community - that's something we want to encourage, we want to stand behind. And when you take somebody who is making minimum wage, who can't afford rent or groceries, and tell them they have to spend more than $600 to get a pardon, which is essential to them getting a better job, you've just blocked them from becoming a more productive member of society, blocking their options, blocking hope, and it's backwards - backwards from a perspective of public safety, it's going to cost the government a lot more money.

Davies then expressed his viewpoint on the importance of pardons and the problems with applying a cost-recovery model in the sphere of 'criminal justice':

... I think what the Minister misses is that a pardon granted by society is an important part of our corrections system. It's not solely for the purposes of the individual involved, it is also an important carrot in the system to balance-off the stick of incarceration.

[...]

I would point out that we don't use the cost recovery model in any aspect of our criminal justice system. When someone is charged with impaired driving and they go to court, we don't ask them to pay the costs of their trial. We don't say this is what it costs for society to administer the justice system. I think it's inappropriate for the Minister of Public Safety to import sort of a commercial aspect to what is a public policy and [the] criminal justice system.

Davies then turned his attention to the broader costs of the 'Conservative' punishment agenda, citing a CSC document that indicates that there will be over 3,300 staff hired by the agency at a cost of $264 million a year to manage the influx of thousands of more prisoners in the years ahead. He then argued that the proposed pardon processing cost-recovery plan is a signal that "the Minister is worried about is how they're going to pay for this clearly irresponsible plan".

Holland followed his colleague's comments by returning to the 'public safety' side of the equation, noting that "if you're going to block somebody from getting hope and opportunity, and a good path, and destroy their ability to get a good job, where is that going to lead in terms of recidivism? I don't think to good places".

The Liberal Public Safety Critic then commented again on the collateral consequences of hiking pardon application fees for affected individuals, the administration of justice and safety in our communities:

And really what you are doing is creating two classes of criminals. You have a single mother who writes a fraudulent welfare cheque - which she shouldn't do obviously - to go out and pay for things... and then you have somebody who is involved in a white collar crime who comes out and has lots of money, and 700 bucks is easy for them to drop. Where's the logic in this? Basically, what you're saying is if you got money you have one system of justice and if you don't, if your poor, if you're in a difficult situation, we're going to keep you poor, we're not going to let you get up, we're not going to let you get that good job and get an opportunity to pay taxes and create opportunities for your children or be able to send them to post-secondary education. I mean this creates cycles which feed upon themselves, which create more problems and make a society that ultimately costs more and has more crime.

Given the consequences of such policies, it is likely that individuals and groups will take up the minority Conservative Government of Canada's offer to 'consult' on this potential user fee increase. However, given the government's position, I suspect that these consultations will ultimately go nowhere and that this issue will lead to a number of challenges under section 4 of the 2004 User Fees Act (read Treasury Board of Canada guidelines here).

* For related commentary watch the 2 February 2011 Power Panel with Greg Weston (CBC News), Rob Silver (Crestview Strategy) and Stephen Taylor (National Citizens' Coalition) for an interesting exchange on the politics of revenge and cost recovery (minutes 1:17:30 to 1:23:50).