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Canadian Pardons, Clemency, and Royal Prerogative of Mercy

Article by Pat Boardman

Canadians who have completed their sentences after having been convicted of a criminal offence can apply for a pardon provided they have demonstrated they have been law-abiding citizens ever since. In special circumstances the Governor General can also grant clemency if there is new evidence of innocence or other reason to remove records or sentences.

It’s normal to hear declarations of protest from anyone who has been convicted of a crime. The old joke is that the prisons are full of innocent people. Unfortunately there have been many wrongful convictions over the years due to bad evidence or over-zealous police looking for somebody to arrest. Before the advent of DNA evidence there was no sure-fire way to eliminate suspects based on unimpeachable scientific analysis of hair, bodily fluids, and skin cells. Many innocent people were executed over the years and it was considered simply the sad cost of doing business in the justice system. This article discusses some of the high-profile Canadian cases and offers insight into some of the safeguards to exonerate those who have been wrongly convicted.

Perhaps the most shocking trial was that of Steven Truscott in 1959. He was tried as an adult, convicted, and sentenced to hang at the age of 14 for the rape-murder of 12-year old classmate Lynne Harper. His death sentence was commuted to life imprisonment after four months on death row facing the gallows and he was paroled in 1969 after considerable public outcry over the circumstantial case. His conviction was later deemed a miscarriage of justice and he received .5 million in compensation in 2008.

Donald Marshall Jr. of Sydney, Nova Scotia was 17 years old he received a life sentence for the murder of his friend Sandy Seale. He was released after 10 years when someone else confessed to the crime. Fortunately for many wrongfully convicted murder suspects, the death sentence has not existed in Canada for many years. One can only imagine how many innocent people were hanged in those days before the truth could come out using modern forensic evidence.

David Milgaard, Guy Paul Morin, William Mullins-Johnson, James Driskell, and Thomas Sophonow were other convicted murderers proven later to be innocent and given millions in government compensation to make up for decades spent behind bars. Some were acquitted upon appeal and others were granted special clemency by the Governor General, representing the Canadian Cabinet.

Regular Canadian pardons are granted after a waiting period and a successful pardon application by a person who has served all the conditions of a conviction such as a jail sentence, fine, and probation. The waiting period for indictable offences is currently five years and may be increased to ten years if and when Bill C-23 is passed.

When the Criminal Code cannot provide further appeals options, there is the possibility of clemency. The Royal Prerogative of Mercy is exercised by the Governor General or the Cabinet (Governor in Council) where clemency can be granted upon recommendation from the Minister of Public Safety or at least one other minister. The most absolute is the Free Pardon recommendation. This is based on proven innocence; it recognizes that the conviction was in error from the beginning. Next there is a Conditional Pardon where a pardon or a parole is granted in advance of the eligibility date. The Conditional Pardon rules can also set aside any fines and penalties levied.

As you might expect, only the exceptionally deserving cases are considered for the Royal Prerogative of Mercy. There has to be strong evidence of injustice and hardship, the applicant must have exhausted all other avenues for appeal, and there must be considerations where compassion, justice, and humanity would override the normal administration of justice. The decision made involving clemency cannot increase any penalty of the applicant so there is no double-edged sword to further punish anyone applying for clemency.

About the Author

Pat Boardman is an SEO Consultant writing this in regards to Assured Pardons, a National Company with offices in Toronto and Vancouver to assist those with criminal records to obtain a pardon, U.S. entry waivers, and to help with criminal record destruction to clear arrest records where no conviction was entered.

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