Trudeau playing games with pardons

Aleader’s power to unilaterally pardon the guilty sits uncomfortably with modern democratic norms. There’s something distastefully monarchical about a ruler who can, apropos of nothing but personal whim, overturn the reasoned judgment of a judge or jury, magically transforming guilt into innocence.

In June, Prime Minister Justin Trudeau’s government passed legislation to overturn the criminal convictions of any Canadian found guilty of breaking the country’s archaic sex laws that were once used to persecute LGBT people for consensual behavior. A similar initiative is now planned to forgive Canadians convicted of simple cannabis possession, in the aftermath of the Trudeau government’s formal legalization of the drug last week. These mass pardons are rooted in a forgivable empathy. The persecution of LGBT Canadians under vague “sodomy” and “indecency” prohibitions was undeniably one of the great cruelties the Canadian state committed. If one is inclined to view consumption of marijuana as innocuous (I’m not, personally), then it similarly follows that the Canadian state committed decades of cruelty punishing men and women for this “victimless crime.”

Yet even Canadian laws written in a dark age of ignorance were still laws produced and enforced by Canada’s democratically elected government. They were public laws known to citizens of the time, and they were broken with equal knowledge. The punishments, enforced by the police and courts, may have been disproportionate, unfair or inconsistently applied, but the state’s right to impose punishment on lawbreaking citizens is part of the social contract any functional civilization rests upon.

In a democratic society, the appropriate reaction to bad laws is to agitate for their repeal by the legislature, which is precisely what happened in the case of Canada’s anti-LGBT statutes and pot prohibitions. Changing public attitudes on drugs and sexuality gave rise to a new generation of elected leaders with mandate to modernize Canada’s criminal code.

It has never been part of our constitutional process for all consequences of previous legislation to be erased, however. The pardon power is most properly applied to individual cases where the guilty party can make a convincing case that he or she was a victim of some significant error of the legal system, ideally adjudicated through a neutral assessment of clear criteria. Pardons of compassion are more easily compromised by politics (see: D’Souza, Dinesh), but are at least theoretically supposed to involve assessing the mitigating circumstances of individual cases as well.

A politician who makes a habit of pardoning an entire class of persons, however, makes a more radical assertion about our legal system: that consequences suffered from breaking the law are inherently tenuous, always just one election away from being overturned. The relevant variable ceases to be the action of the guilty or the circumstances of his or her conviction, but rather a politician’s subjective assessment of a law itself. The result is an erosion of how seriously any law is taken.

The fact that Trudeau has now offered two sweeping pardons motivated by post-hoc ideological judgments should inspire curiosity as to what class of the presently convicted could be the next winner of the absolution sweepstakes. With marijuana charges overruled, one certainly expects the prime minister to face increasing pressure to absolve Canadians convicted of nonviolent crimes involving other drugs as well.

Once the Conservatives get back in power, they could play this game too (and in fairness, have, to some degree, in the past). Perhaps a blanket pardon for all offenders of Canada’s recently strengthened gun control laws? Or maybe a mass pardon of everyone found guilty of evading the high tax rates of Liberal governments past?

Once we embark on the project of undoing the consequences of all bad legislation, it becomes similarly difficult to know how deep into history we should plunge. Last year, Trudeau posthumously pardoned six aboriginal chiefs who were executed in the aftermath of the so-called Chilcotin War of 1864. Given the prime minister’s opposition to the death penalty, is there any argument against a posthumous pardon for all 710 Canadians executed during the country’s era of capital punishment?

In 2010, Nova Scotia posthumously pardoned Viola Desmond, a black woman convicted of trumped-up charges in 1946. Knowing that systemic racism and sexism have historically poisoned the Canadian justice system, is there any argument against blanket pardons for all indigenous or female Canadians convicted before whenever our present age of tolerance began?

Governments are cursed to hold legal continuity with administrations whose past deeds have ranged from incompetent to sinister. Politicians can atone for this by repealing the bad laws of their predecessors, while citizens can modernize their opinions about convictions they now consider forgivable. Ceasing to blindly discriminate against all Canadians with “criminal records” in favor of making an effort to distinguish between them is but one example.

That authority to punish remains any state’s greatest power. Our energies are best directed toward ensuring future generations do not suffer from its frivolous or cruel exercise, rather than seeking teary atonements after it is.

— J.J. McCullough is a political commentator and cartoonist from Vancouver