Legislative reference

Criminal Records Act s. 4.1(1) & (2), 4.2(4), 7 and 7.2.

Preamble

The Criminal Records Act (CRA) authorizes the National Parole Board to grant or refuse to grant pardons for offences under federal acts and regulations and to revoke pardons or, under specific circumstances, declare that a pardon ceases to have effect. The CRA also requires that, on application and verification of eligibility, a pardon be issued to applicants whose criminal records contain only summary convictions and/or hybrid offences that were tried summarily.

A pardon is evidence that the conviction should no longer reflect negatively on a person's character. In support of this statement, the CRA restricts access to records under federal jurisdiction and removes any disqualifications that would result from a conviction. With regards to employment, the CRA specifies that information about pardoned offences shall not be sought in the employment applications of organizations under federal jurisdiction. In addition, the Canadian Human Rights Act forbids federal agencies and departments to discriminate against an individual based on a pardoned record. 

Purpose

The purpose of this policy is to guide Board members in pardon decision-making.

Policy

GOOD CONDUCT

For the purpose of the CRA, good conduct is defined as behaviour that is consistent with and demonstrates a law-abiding lifestyle.

GUIDELINES FOR ASSESSING GOOD CONDUCT

For the purpose of determining good conduct in decision-making, the Board will consider all relevant and reliable information provided by the applicant and criminal justice entities including:

• information about an incident that resulted in a charge that was subsequently withdrawn, stayed, or dismissed, or that resulted in a peace bond, in the use of alternative measures or in the acquittal of the applicant;

The relevance of this information increases where the charge or charges are of a serious nature, and/or are related to convictions on the record for which the pardon is requested. With regards to a peace bond or the use of alternative measures (ex. community service work), adherence to the conditions, the date on which the conditions were imposed and the date of the originating incident should also be taken into account.

• any record of absolute or conditional discharges; 
  
• information about convictions under provincial statutes;

The importance of this information depends on the nature, the number and the date of the infraction, and/or whether or not it is similar to the past criminal activity of the person. 

• information provided by law enforcement agencies about suspected or alleged criminal behaviour; 
  
• representations provided by, or on behalf of, the applicant;
  
• any information submitted to the Board by others with knowledge of the case.

The Board does not consider anonymous information unless there is more than one complaint which is relevant to the Board’s decision-making. Relevance is determined by the nature of the complaints, the number of the complaints and/or the timing of the complaints.

REVOCATION OF A PARDON BASED ON SUBSEQUENT CONVICTION FOR OFFENCE PUNISHABLE ON SUMMARY CONVICTION

When determining whether to revoke a pardon on the grounds that the individual to whom the pardon was granted or issued is subsequently convicted of an offence punishable on summary conviction under an Act of Parliament or a regulation made under an Act of Parliament, the Board will consider all relevant information, including:

• information that suggests a significant disregard for public safety and order and/or laws and regulations (see Guidelines for assessing good conduct), given the offender’s criminal history;
  
• whether the offence is consistent with the offence for which the pardon had been issued or granted;
  
• time period since satisfaction of all sentences.

Voting Requirements

All decisions will be made by one Board member. The Board member who proposes to either deny a pardon, to revoke a pardon, or to cease a pardon, will set out in writing the reasons for the proposal.

If, after receiving representations, the decision is to grant a pardon, to deny a pardon, revoke a pardon or cease a pardon, the Board Member will set out in writing the reasons for the decision.

If representations are received, the final decision as to whether or not to refuse to grant a pardon, to revoke a pardon, or to cease a pardon, will be made by a different Board member.

Reviews where there may be representatives by or on behalf of applicants

If the Board proposes either to refuse to grant a pardon, to revoke a pardon or to cease a pardon, the review will not proceed for at least 60 days following notification to the applicant, unless representations are received at an earlier date.

If the Board authorizes that representations may be made orally, the representations may be heard by way of an in-person hearing in the national office of the Board or in one of the Board's regional offices, or by way of a conference call.

GUIDELINES FOR DETERMINING WHETHER TO HOLD A HEARING

The Board may conduct a review by way of a hearing, if the Vice-Chairperson, Appeal Division, believes it is desirable to do so based on an assessment of any relevant factor, including:

• where there is information that suggests that the applicant has had involvement with the police since the last conviction; or,


• where it is necessary to clarify information provided by the applicant.

Implementation Date

2005-02-01

14.2 - Royal Prerogative of Mercy

Legislative reference

Section 110 of the Corrections and Conditional Release Act, the Letters Patent, and sections 748, 748.1 and 749 of the Criminal Code.

Background

The Royal Prerogative of Mercy originates in the ancient power vested in the British monarch who had the absolute right to exercise mercy on any subject. In Canada, similar powers of executive clemency have been given to the Governor General who, as the Queen's representative, may exercise the Royal Prerogative of Mercy. It is largely an unfettered discretionary power to apply exceptional remedies, under exceptional circumstances, to deserving cases.

Purpose

The present document constitutes the Minister's guidelines to the National Parole Board. to assess the merits of clemency applications, and to determine whether to recommend to the Solicitor General that an act of clemency be granted.

Authority and power

GOVERNOR GENERAL OF CANADA - LETTERS PATENT

The power to exercise the Royal Prerogative of Mercy for federal offenses is vested in the Governor General of Canada by virtue of the Letters Patent, constituting that office. In practice, the Governor General will grant an act of clemency only after receiving the advice of the Solicitor General of Canada, or that of at least one other minister.

The Governor General may grant two types of pardons, free pardons and conditional pardons, and may also grant respites from the execution of a sentence. In addition, sentences, as well as fines, penalties or forfeitures "due and payable to the Queen in right of Canada", may be remitted by the Governor General.

GOVERNOR IN COUNCIL - CRIMINAL CODE

Sections 748 and 748.1 of the Criminal Code authorize the Governor in Council to grant free or conditional pardons, and to order the remission of pecuniary penalties, fines and forfeitures imposed under an act of Parliament. The exercise of these powers is considered by the Federal Cabinet on the advice of the Solicitor General of Canada, or that of at least one other minister.

In practice, requests for executive clemency are processed under the Letters Patent constituting the Office of the Governor General of Canada only when it is not legally possible to proceed under the Criminal Code. Therefore, with the exception of respites, relief from prohibitions and remissions of sentence, all positive recommendations are forwarded to the Federal Cabinet for a decision under the provisions of the Criminal Code, rather than to the Governor General of Canada.

Principles guiding the exercise of clemency

The Royal Prerogative of Mercy is exercised according to general principles which are meant to provide for a fair and equitable process, while ensuring that it is granted only in very exceptional and truly deserving cases.

In reviewing clemency applications, conducting investigations and making recommendations, the National Parole Board shall be guided by the following principles:

1. THERE MUST BE EVIDENCE OF SUBSTANTIAL INJUSTICE OR UNDUE HARDSHIP.

Neither the Governor General nor the Governor in Council intervene on technical grounds. Therefore, in order for executive clemency to be invoked on the basis of an injustice, there must be clear evidence of a substantial injustice.

Similarly, undue hardship, which includes suffering of a mental, physical and/or financial nature, must be out of proportion to the nature and the seriousness of the offense and the resulting consequences, and must be more severe than for other individuals in similar situations.

In general terms, the notions of injustice and hardship imply that the suffering which is being experienced could not be foreseen at the time the sentence was imposed. In addition, there must be clear evidence that the injustice and/or the hardship exceed the normal consequences of a conviction and sentence.

2. THE EXERCISE OF THE ROYAL PREROGATIVE OF MERCY IS CONCERNED SOLELY WITH THE APPLICANT.

Each application will be examined on its own merits, taking into consideration the circumstances of the individual applicant. Consideration will not be given to the hardship of anyone else who may be affected by the applicant's situation, nor will it be considered posthumously.

3. THE EXERCISE OF THE ROYAL PREROGATIVE OF MERCY IS NOT INTENDED TO CIRCUMVENT OTHER EXISTING LEGISLATION.

In order for the Royal Prerogative of Mercy to be invoked, the applicant must have exhausted all other avenues available under the Criminal Code, or other pertinent legislation.

In addition, an act of executive clemency will not be considered where the difficulties experienced by an individual applicant result from the normal consequences of the application of the law.

Furthermore, the Royal Prerogative of Mercy will not be considered as a mechanism to review the merits of existing legislation, or those of the justice system in general.

4. THE INDEPENDENCE OF THE JUDICIARY SHALL BE RESPECTED.

The exercise of the Royal Prerogative of Mercy will not interfere with a court's decision when to do so would result in the mere substitution of the discretion of the Governor General, or the Governor in Council, for that of the courts. There must exist clear and strong evidence of an error in law, of excessive hardship and/or inequity, beyond that which could have been foreseen at the time of the conviction and sentencing.

5. THE ROYAL PREROGATIVE OF MERCY SHOULD BE APPLIED IN EXCEPTIONAL CIRCUMSTANCES ONLY.

The Royal Prerogative of Mercy is intended only for rare cases in which consideration of justice, humanity and compassion override the normal administration of justice. It should be applied only where there exist no other remedies, where remedies are not lawfully available in a particular case, or where recourse to them would result in greater hardship.

6. THE EXERCISE OF THE ROYAL PREROGATIVE OF MERCY, BY ITS VERY NATURE, SHOULD NOT RESULT IN AN INCREASED PENALTY.

When considering the merits of an individual case, the decision should not, in any way, increase the penalty for the applicant.

Specific remedies and criteria

In addition to the general principles which guide the National Parole Board in assessing the merits of clemency applications, each form of relief is assessed against some specific criteria:

1. FREE PARDON

• definition

A free pardon is a formal recognition that a person was erroneously convicted of an offense. Any consequence resulting from the conviction, such as fines, prohibitions or forfeitures, will be canceled upon the grant of a free pardon. In addition, any record of the conviction will be erased from the police and court records, and from any other official data banks.

• criteria

The sole criterion upon which an application for a free pardon may be entertained is that of the innocence of the convicted person.

In order for a free pardon to be considered, the applicant must have exhausted all appeal mechanisms available under the Criminal Code, or other pertinent legislation. In addition, the applicant must provide new evidence, which was not available to the courts at the time the conviction was registered, or at the time the appeal was processed, to clearly establish innocence.

• authority

Governor in Council and Governor General

2. CONDITIONAL PARDON - PRIOR TO ELIGIBILITY UNDER THE CORRECTIONS AND CONDITIONAL RELEASE ACT (CCRA)

• definition

A conditional pardon - prior to eligibility under the CCRA is the release of an inmate from incarceration into the community, under supervision and subject to conditions, until the expiration of the sentence imposed by the court.

• criteria

Inherent to any sentence of incarceration is the notion of hardship which is meant to act as a punishment for the convicted offender, and as a deterrent for potential offenders. The limitations to one's freedom and to one's rights to participate fully as a member of the community, the distance and often the isolation from one's family and friends, are the direct consequences of a sentence of imprisonment and of the crime which resulted in the imposition of such a penalty.

CSC is responsible for the care and custody of inmates as stipulated in section 5(a) of the CCRA and that responsibility includes caring for the medical problems of all offenders, irrespective of their seriousness. Whereas illness or deteriorating health may cause hardship, it does not, in itself, constitute a sufficient reason to grant a conditional pardon in advance of eligibility for conditional release under the CCRA. For this exceptional measure to be invoked, serious medical problems would be considered as one of many factors.

In order for a conditional pardon to be granted prior to eligibility under the CCRA, the inmate must be ineligible for any other form of release under the CCRA, and the release should not, in any manner, put the community at risk of the offender's re-offending. In addition, there must exist substantial evidence of excessive inequity, substantial injustice or undue hardship which would be out of proportion to the nature and seriousness of the offense and the resulting consequences, and more severe than for other individuals in similar situations.

• authority

Governor in Council and Governor General

3. CONDITIONAL PARDON - IN ADVANCE OF ELIGIBILITY UNDER THE CRIMINAL RECORDS ACT (CRA)

• definition

A conditional pardon in advance of eligibility under the CRA has the same meaning and effect as a pardon granted under the provisions of the CRA.

• criteria

Possessing a criminal record is the normal consequence of having been found guilty or convicted of a crime. A criminal record may limit access to careers, to employment, to travel and, in itself, may result in a certain amount of hardship.

In order for a conditional pardon to be granted in advance of the eligibility under the CRA, the applicant must be currently ineligible for a pardon under the CRA. In addition, such a pardon may be considered only when there is evidence of good conduct, within the meaning of the CRA, and consistent with the policies of the National Parole Board in these matters. Finally, there must be substantial evidence of undue hardship, out of proportion to the nature of the offense and more severe than for other individuals in similar situations.

• authority

Governor in Council and Governor General

4. REMISSION OF SENTENCE

• definition

A remission of sentence amounts to the erasing of all, or part of, a sentence imposed by the court.

• criteria

Consistent with the principle that the independence of the judiciary must be respected, a remission of sentence may be considered only where there exists evidence of: an error in law; a substantial inequity, such as a change in legislation which had unintended and unanticipated consequences for a person convicted and sentenced; or undue hardship which would be out of proportion to the nature and seriousness of the offense and more severe than for other individuals in similar situations.

• authority

Governor General

5. REMISSION OF FINE, FORFEITURE, ESTREATED BAILS AND PECUNIARY PENALTIES

• definition

A remission of a fine, a forfeiture, an estreated bail or a pecuniary penalty amounts to the erasing of all, or part of, the penalty imposed by the court.

• criteria

In order for such penalties to be remitted, there must exist substantial evidence of undue hardship, due to circumstances or factors unknown to the court that imposed the sanction, or which occurred subsequent to the imposition of the sanction by the court. In addition, consideration will be given to whether the grant of a remission would result in hardship to another person.

• authority

Governor in Council and Governor General

6. RESPITE

• definition

Respite is the interruption of the execution of a sentence.

• criteria

In order for a respite in the execution of the sentence to be considered, there must be substantial evidence that failure to grant such an act of clemency would result in undue hardship, or create an inequity. In addition, the granting of a respite should not place the community at risk of the offender's re-offending.

• authority

Governor General

7. RELIEF FROM PROHIBITIONS

• definition

A relief from a prohibition is the removal or the alteration of a prohibition, imposed by the court as a result of a conviction.

• criteria

A prohibition may be removed or altered where there is substantial evidence that the prohibition is causing undue hardship to the applicant and that altering or removing the prohibition would not place that community at risk of the offender's re-offending.

• authority

Governor General

• note

Pursuant to section 109 of the CCRA, the National Parole Board may, under some circumstances, cancel or vary a portion of a driving prohibition order made under section 259(1) or (2) of the Criminal Code. Consistent with the principle that the Royal Prerogative of Mercy is not intended to circumvent any other existing legislation, such a recourse may only be invoked for driving prohibitions where the applicant is otherwise ineligible under the provisions of the CCRA.

Cancellation of a remedy

All remedies described above are subject to cancellation if the application was granted on the basis of information which is subsequently found to have been fraudulent.

All remedies, with the exception of free pardons, may be canceled if any condition under which they are granted is subsequently breached.