Pardon him? Understanding Graham James’s controversial case

The pardon is a formality, in a rubber-stamp system

Pardon him?

Bill Becker/CP

The revelation last weekend that the National Parole Board had pardoned Graham James, the former junior hockey coach convicted in 1997 of sexually abusing Sheldon Kennedy and other teenage players, was met with rage and bewilderment. “Pardon” is a word that, in ordinary lay use, denotes forgiveness and exoneration. It is not easy to use it comfortably in connection with James, who defended himself by insisting that his relationship with Kennedy was “consensual,” and who has been accused of molesting other players during his coaching career, ones not involved in his 1997 trial.

Canadian parole officials see things differently. To them, a “pardon” is an administrative formality, one available virtually as a matter of right to ex-convicts who have displayed lawful behaviour outside of prison.

More than 99 per cent of pardon applications that reach the adjudication stage are granted by the NPB. But to get that far (as only three-quarters of filed applications do), an applicant has to pass several tests, be fingerprinted, compile his own records, and pay fees. Although the volume of pardon applications is expanding fast, it still seems modest—roughly 36,000 were filed in fiscal 2008-09—in a country where over three million people are thought to have had a criminal record.

For summary-conviction offences—misdemeanours whose maximum penalty is less than two years in prison—the law says the parole board must grant a pardon if there has been no subsequent conviction after three years. For the more serious indictable offences, the wait time is five years, and the ex-con has to prove “good conduct” to the satisfaction of the board, supplying police records and court information from the places where he has lived. (In either case, the clock doesn’t start until the whole sentence has been served, all fines or restitution arrangements are paid up, and any community service completed.)

Pardons are revocable; the “good conduct” has to last a lifetime. The board’s director for clemency and pardons, Yves Bellefeuille, estimates that of the approximately 450,000 pardons granted since it was given jurisdiction in 1970, 3.5 per cent have been revoked because the grantee committed another crime or because misleading information was discovered in his application.
Under the Criminal Records Act, a pardon restricts public access to federal records of a particular criminal conviction. But a pardon, unlike a discharge, never leads to the destruction of a record, merely its sequestering. (And other countries aren’t bound to honour Canadian pardons, as some southbound Canadians with half-forgotten criminal records from their youth have discovered at the border.) Police performing an investigation have access to records of pardoned convictions; the CRA only forbids them from disclosing those records to the public.

For sex offenders like James, federal criminal records are specially flagged, and even though James has received a pardon, his conviction still has to be disclosed to potential employers (or volunteer organizations) doing a criminal-record check if the work involves “being in a position of trust or authority” over children or vulnerable adults.

The pardon given to James set off an immediate political controversy. Public Safety Minister Vic Toews said the Prime Minister phoned him before the story hit the wires and asked him to come up with new legislation revising the pardon system, a product of Trudeau-era justice reforms. The CRA doesn’t distinguish between indictable offences of varying severity and outrageousness. No crime is considered unpardonable, and even where the parole board makes extra efforts to establish “good conduct,” the means available to it are naturally limited, especially as the number of applications grows (with encouragement from an expanding paralegal sector).

Liberal criminologists in the U.S. generally admire Canada’s system of easy rubber-stamp pardons. Plagued by high incarceration rates and a semi-permanent criminal underclass in their own country, they admire the way it quietly facilitates reintegration. But that comes at the cost of making criminal justice more bureaucratic and less public.

The parole board’s explicit policy is that “a pardon is evidence that the conviction should no longer reflect negatively on a person’s character”—an indisputably asinine statement when it comes to the specific case of Graham James, and perhaps a questionable one in any instance. It is strange for the board to admit that it is largely powerless to deny most pardon applications­—as its representatives suggested when the James story broke—and at the same time deny citizens the means to make their own ethical judgments about a person’s “character,” instead substituting its own assessment.

Toews suggested the government might simply remove the possibility of pardon for some criminals. “Pedophiles are especially difficult to rehabilitate, if ever,” he noted. And he seemed to imply that the government might extend wait times for pardons in particularly outrageous offences: “I think there is a distinction to be made between a break and enter and a rape.” This is precisely the sort of political question we elect, and expect, legislators to settle. It may well be time, after 40 years of criminological experience and social change, for them to get involved with fine-tuning the system.




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Pardon him? Understanding Graham James’s controversial case

  1. I've always found it unjust that in our society, the penalty for a criminal conviction lasts a lifetime because of the criminal record it entails. Job prospects, for example, are seriously impacted long after the jail sentence is done no matter what the conviction was for.

    Ideally a conviction results in an appropriate sentence, but once the sentence is completed the ex-criminal can move on with his life. This is only reasonable: justice involves paying for the crime, not being a pariah cast out of society forever.

    The intermediate cause of the problem, in my opinion, is light sentencing. Since when does child molestation merit only five to ten? In past ages this was often a capital crime. One sees the rationale: by molesting a child, a perpetrator leaves his victim with life-long injury. Justice demands that his own life be permanently affected in payment. Therefore if the courts sentence him to five or ten years, the unquenchable thirst for justice manifests itself in other ways such as lifelong criminal records that preclude the record-holder from ever rejoining society in full. The problem is that these end-run solutions affect all convicts, not merely those whose crimes actually demanded lifelong payment.

    The criminal justice system needs to return to the notion that crimes demand punishments of the same scale. The purpose of justice is not merely rehabilitation; payment is also required to restore balance. With this in mind, child molesters should never emerge from jail alive. Lesser criminals should be able to emerge from jail and put their past behind them – pay the price, move on with life and no hard feelings. But full payment must be exacted, not token payment. Otherwise justice will be meted out by less formal means, and this hurts everyone.

    • Gaunilon,
      Your comment is one of the best perspectives on this topic I've seen anywhere. As a victim of interpersonal violence I couldn't agree more.

    • One more thing I would add: we as a society need to work much harder to get at the real roots of criminal behaviour, instead of using individual criminal acts as scapegoats/distractions for larger societal problems. Many criminals were themselves victims, and this needs to be considered – not as an excuse, but as a part of the larger problem to be solved. We often hear it said that "many people were abused but they didn't turn out to be abusers". That is true, but that statement completely disregards and minimizes the impact of abusive behaviour. Those who survive abuse go on to have incredible difficulties which society largely disregards, and more often punishes. As a victim myself I can understand how those who suffer with no support or outlet could be tempted by the wrong circumstances to turn their pain outward against society, instead of inward as most of us do.

    • As a society we don't seem to recognize the need for true justice. We tend to coddle and excuse perpetrators, and ridicule and criticize victims (or temporarily use them for "entertainment" value in the news), and then we wonder why some abused children grow up to be criminals!?! A little true justice would go a long way to correct this cycle.

      • THAT IS SO TRUE WE ALL NEED TO UNDERSTAND THE ROOT OF THE BEHAVIOR,THERE IS ALSO A CHOICE WE MAKE, SICK OF THE LAWS IN THIS COUNTRY THAT ALWAYS PROTECTS THE PERPETRATOR AND LEAVES VICTOM WITH NO JUSTICE WHAT KIND OF LAW DO YOU CALL THAT,SO TO GET JUSTICE AS A VICTOM YOU MUST BREAK THE LAW,WELL THAT MAKES THE LAW EVEN SICKER THEN THE PERPETRATOR

  2. I agree with Guanilon … The real crime isn't the pardon. It is that James received such a light sentence in the first place,

  3. I love being a Canadian, but this is embarassing to the BEST country in the world! What is going on ? This guy is a dangerous felon!!!!!!!!!!

  4. The whole James affair is a hilarious farce. A couple younger men got into bed with the coach for some delightful fun. Then one of the younger ones decided to squeal. The police heard the squeal of which they made a big deal. etc etc. He was pardoned. Then so be it . To try to punish him more is quite in humane. The crime for which he was accused did harm to no one.

    Barely

    • Barely – how can you say that? I hope that you are being facetious and don't truly believe the complete and utter rubbish that you wrote in your comment – that you don't believe an adult, in a position of power over a young person, who abused not only their body but their minds, spirits, trust, dignity and entire life did no harm? I would never wish being the victim of abuse of any kind, but especially male against male sexual abuse, on my worst enemy. Without having experienced that horror, I think that you would never understand what you are saying. When you don't understand what you are saying, don't understand the facts, or choose to ignore what most people believe to be a complete abomination against human kind – pedophiles – you are better off not to write such stupid, ignorant, uninformed and ridiculous commentary. Either that or you're a pedo yourself and trying to make excuses for the inexcusable.

  5. you know one thing that bothers me about all this … first off anyone that harms a child in anyway should be punished in ways I can't say on here.. but I know for a fact and I played Hockey for over 12 yrs… is that if anyone or man ever touched me in a way that I didn't want when I was 12 -13-15 yrs old I would freak out… and yell… tell some one… or beat them up myself.. I really don't understand where these guys are coming from… something is not right.. horny little teenagers would do anything that feels good… me.. I like women myself… but not everyone is me.. … all as I am saying is no man would ever touch me when I was 15 yrs old… unless I let him

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