Redress Risk Management (post until May 31/19)

Ruling should increase parole decision transparency

A recent ruling that will allow a disbarred lawyer another chance at a pardon for a criminal fraud conviction is a welcome decision that will force the parole board to ensure applicants understand why they have been denied, Toronto criminal lawyer Breese Davies tells Law Times.

In January, a Federal Court judge ruled the Parole Board of Canada acted unreasonably in denying Harold Spring a pardon — now known as a record suspension.

As Law Times notes, Spring’s licence to practise law was revoked in 1987 by the Law Society of Upper Canada, and he served more than a year in jail for crimes committed between 1985 and 1993, before turning his life around and building a successful real estate career. 

Spring applied for a pardon in late 2010, but was denied four years later when a parole board member concluded that granting one would “likely bring the administration of justice into disrepute.” 

However, the Federal Court ruled that the shortage of detail in the parole board decision meant that it “lacks transparency and intelligibility and is unreasonable.”   

“The Court and the applicant have been left with a decision that denies the application for a record suspension but does not address why,” wrote Justice Patrick Gleeson. The court has referred the matter back to the parole board for redetermination, says the article.

As Davies, vice-president of the Criminal Lawyers Association, says in the article, having a criminal record is a significant burden, as the courts have recognized over and over again. 

“There is a lot about the post-conviction process that is not transparent, but this will force the parole board to ensure that applicants understand why they’ve been denied,” she says.

“It’s not enough to simply assert that public confidence in the administration of justice would be eroded by granting a pardon; now they must articulate what it is about this particular case that leads them to that conclusion.”

The Parole Board of Canada’s ability to reject pardons that would bring the administration of justice into disrepute was introduced as part of a host of reforms in 2010. 

“Under the old system, it was fairly pro forma; you were pretty certain to get a pardon if you met certain criteria. The new regime is a lot more discretionary, and you don’t see a lot of challenges, partly because people tend to go through the process without a lawyer,” says Davies.

“I wouldn’t be surprised if we saw more going forward.”

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