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Cabinet ministers granting clemency? Harper's new no-parole law reminds us they can

Cabinet ministers granting clemency? Harper's new no-parole law reminds us they can

The Harper government’s new no-parole legislation, announced Wednesday afternoon and to be introduced next week when MPs return from some time back in their ridings, is, as it turns out, an opportunity to fall down the rabbit hole of ancient Crown prerogatives.

The legislation will include a provision allowing cabinet to decide on the release of some killers, which caused a bit of a tizzy on Twitter after the prime minister announced the pending bill. Could the Conservative cabinet use this power to its advantage, for political gain, somehow? Is it not troubling for ideological politicians to be given this kind of legal power? Yes, possibly, but to be sure this isn’t anything new.

Basics on the bill

The government is planning to table legislation in the House of Commons that, Prime Minister Stephen Harper said, would ensure Canada’s “most heinous criminals” stay in jail for life, without chance of parole.

"Next week, our government will introduce legislation to ensure that for the most heinous offenders and the most horrific crimes a life sentence in Canada will henceforth mean exactly that — a sentence for life," the prime minister said at an afternoon press conference in Scarborough, Ont.

The forthcoming bill would apply to those convicted of first-degree murder involving the killing of police or correctional officers, terrorism, kidnapping or sexual assault, crimes of a “particularly brutal nature” and to those who commit high treason.

The prime minister added that with the law, some convicted killers would be able to petition the minister of public safety for release after serving no less than 35 years behind bars, and that decisions around this will rest with the federal cabinet. This measure is to ensure the legislation is constitutionally sound, since some legal scholars have noted concerns that such a law could be considered cruel and unusual punishment.

Return to an ancient prerogative

Harper insisted this power isn’t one of granting parole because it doesn’t fall under the responsibility of a parole board. But it also isn’t a new thing for federal cabinet members, either.

What many might not be aware of is that cabinet already has parole-granting powers, in a sense, and has for as long as there’s been a Canadian federal cabinet, with what’s called the Royal Prerogative of Mercy (RPM). The RPM is rare but not completely unheard of.

According to a fact sheet provided online by the Parole Board of Canada, the RPM “is a discretionary power based on the ancient right of the British monarch to grant mercy…It relates to forms of clemency, granted in exceptional circumstances in deserving cases involving federal offences.”

Back in 2013, the Canadian Press reported that requests for clemency through the RPM were on the rise. The Conservative government had just tightened up pardon rules for those convicted of child-sex offences and anyone with more than three convictions for indictable offences.

At the time, the Parole Board of Canada even put a notice on its website in an attempt to discourage RPM applications, noting this kind of cabinet mercy is “only granted in exceptional circumstances,” said one Canadian Press report.

A fairly recent example of the RPM in practice was when Harper announced clemency for grain farmers who had been convicted of willfully breaking the Canadian Wheat Board monopoly, which they’d done in protest.

Whether or not this could be defined as a government using a certain power — or in this case prerogative — to its advantage, is a matter of opinion.

Outside of the rabbit hole, though, is the context of the next federal election and the Conservatives’ tough-on-crime agenda. It’s not out of left field to wonder whether this forthcoming bill, like other tough-on-crime measures including the controversial anti-terror bill, C-51, will stand up in courts under the constitutional smell test if and when it may be challenged.

Follow Laura on Twitter: @laurabeaulne