Double Jeopardy Relative To Applying For A Pardon

The instance last year of the Parliament of Canada passing Bill C-23A, which raised the criteria for those convicted of serious sexual and violent personal injury offences to successfully apply for a pardon was aimed primarily at convicted sexual predator Karla Homolka. In order to remind people of the background of this case, at the beginning of the 1990s, Homolka had participated in her husband Paul Bernardo’s spree of rape and murder. After leaving Bernardo, Homolka had made a plea bargain with the prosecution: in exchange for testifying against her husband, she was allowed to plead guilty to manslaughter and was given a 12-year prison term. When Bernardo’s trial started, however, videotapes were found in their house recording some of their sexual assaults. These not only made Homolka’s previously agreed-upon testimony less necessary; they showed her to have been an active participant in the crimes rather than the victim she had portrayed herself to have been. Bernardo was found guilty of double murder, sentenced to life imprisonment, and declared a dangerous offender, which makes it unlikely that he will ever receive parole. But although he claimed, and many suspected, that Homolka was the actual killer, it was impossible to put her on trial again.

After having had a parole application denied, Homolka was released in 2005, after having served her full sentence. Five years later, the Canadian government, which for some time had been overhauling the criminal justice system to make it harder on criminals, was in the middle of an attempt to get Parliament to pass yet another measure, Bill C-23, which was meant to make applying for a pardon more difficult. Although the word pardon calls up connotations of forgiveness, a pardon in the sense of the word used here is not a commutation of a sentence, but a document issued by the Parole Board of Canada some time after a person has finished serving their sentence, serving to seal their criminal record. The bill was a far-reaching measure, meant to cover all pardons in Canada. However, the law was hotly contested by opposition parties. It then became known that Karla Homolka was about to become eligible to apply for a pardon – for serious offences, the law allowed a person to apply 5 years after release. This sparked outrage across party lines; in order to prevent this from happening, the aforementioned bill was split in two: C-23A, which was mainly aimed at making it more difficult for offenders like (and including) Homolka to get a pardon, and C-23B, which would be discussed after parliament’s summer break. Bill C-23A was quickly passed; its main provisions included raising the ineligibility period to 10 years for sexual and violent injury offences, including manslaughter (thus, Homolka is now ineligible to apply for a pardon until 2015) and giving the Parole Board the discretion to deny pardons in cases where it considers that doing so would bring the administration of justice into disrepute. On the basis of this, it is possible that Homolka will never be given a pardon.

This measure has been welcomed by the general public, but there are also critics who would liken it to double jeopardy for Homolka. The principle of double jeopardy is one that has been recognized by English law and countries that continue in this legal tradition, including Canada and the United States, for over 800 years. It lays down the principle that no person may be charged twice for the same crime (to be more precise, for the same instance of a crime and on the same evidence). Consequently, a person may not be given more than one sentence for the same crime. It is true that no one is suggesting that Homolka be re-tried, or that her sentence as such be lengthened. Nevertheless, the government has been accused of retroactively adding to her punishment by making it difficult or impossible for her to apply for a pardon and seal her criminal record. Is this so or is the government merely trying to make pardons inaccessible to those who it would be dangerous to offer them to? The controversy continues.

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