Royal Prerogative of Mercy Ministerial Guidelines

Legislative Framework

Letters patent constituting the office of Governor General of Canada, 1947, articles II and XII

Criminal Code, sections 748, 748.1 and 749

Corrections and Conditional Release Act, section 110

Purpose

The present document constitutes ministerial guidelines to the Parole Board of Canada (PBC or the Board). The purpose is to assist PBC Board members in assessing the merits of clemency applications and determining whether to recommend to the Minister of Public Safety, or any other minister of the Crown as appropriate, that an act of clemency be granted.

General

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, the Governor General, as the King’s representative, may exercise the Royal Prerogative of Mercy. It is an unfettered discretionary power to grant mercy, based on the understanding that the Canadian justice system is not infallible and that, in some cases, it is necessary to intervene for justice, humanitarian or compassionate reasons to reduce severe negative effects of criminal sanctions. Similar powers of clemency have been given to the Governor in Council in the Criminal Code.

Given its exceptional and discretionary nature, the exercise of the Royal Prerogative of Mercy must not be bound by rigid criteria. Discretion must not be fettered, and the remedy itself may take any form and be tailored to suit the uniqueness of each situation.

Authority and Power

Governor General of Canada – Letters Patent

The power to exercise the Royal Prerogative of Mercy for federal offences is vested in the Governor General of Canada by virtue of articles II and XII of the Letters patent constituting the office of Governor General of Canada, 1947 (Letters Patent). The Governor General may only exercise this power on the advice of at least one Minister. In practice, advice is most often provided by the Minister of Public Safety.

The Letters Patent authorize the Governor General to grant any remedy that is suitable to the case, including, but not limited to: free pardons, conditional pardons, respites from the execution of a sentence, remission of sentences, fines, forfeitures, estreated bails or any type of pecuniary penalty payable to the King in right of Canada, remission of restitution orders, and cancellation or variation of a prohibition order.

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 Governor in Council exercises this power on the advice of at least one Minister. In practice, advice is most often provided by the Minister of Public Safety.

Requests for clemency are generally processed under the Letters Patent and granted by the Governor General when it is not legally possible to proceed under the Criminal Code.

Principles Guiding the Exercise of Clemency

While the Royal Prerogative of Mercy is an unfettered discretionary power, it should be exercised according to general principles that are meant to provide for a fair and equitable process.

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

1. The Royal Prerogative of Mercy Should Be Exercised 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.

2. There Should Be Evidence of Substantial Injustice, or Undue Hardship

Injustice is a broad term that encompasses concepts of inequity and error in law. Injustice can include wrongful convictions, sentences based on a misconstrual of the law, or any other form of injustice.

Inequity can occur when the consequences of the sentence or conviction appear to be out of proportion to the nature of the offence and/or the consequences that would typically result in a similar case (lack of parity). Causes of inequity may include a change in legislation, a change in circumstances that resulted in consequences for the individual that were unintended and/or unanticipated by the court at the time of sentencing, differences in the application of the law in different regions, or other factors.

Error in law is typically a ground for appeal, but if all appeals are exhausted or deadlines for appeals have passed, an individual may request clemency on this basis.

Undue hardship is hardship that is unusually difficult or out of the ordinary; out of proportion to the normal consequences of being convicted of an offence, as well as out of proportion to the nature and the seriousness of the specific offence(s); and/or more severe than that typically experienced by other individuals convicted of the same or similar offence(s). Hardship may come in many forms, including but not limited to, psychological, financial, employment-related, medical/physical, interpersonal or familial, or immigration-related.

In general terms, the notions of injustice and undue hardship imply that the severity of the consequences could not be foreseen at the time the sentence was imposed. In addition, in the case of undue hardship, there should be clear evidence that the hardship being experienced exceeds the normal consequences of a conviction and sentence.

3. The Exercise of the Royal Prerogative of Mercy is Concerned Solely with the Applicant’s Case

Each application is concerned solely with the applicant’s case, examined on its own merits and is not a mechanism to review the merits of existing legislation or of the justice system in general. The exercise of the Royal Prerogative of Mercy in any one case does not set a precedent as it relates to any other case, nor will it be considered posthumously.

4. The Exercise of the Royal Prerogative of Mercy is not Intended to Circumvent Other Existing Legislation

The Royal Prerogative of Mercy should be exercised only when all other available legal avenues for relief have been exhausted or when recourse to them would result in greater hardship, including under the Criminal Code, or other pertinent legislation.

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

5. The Exercise of the Royal Prerogative of Mercy Should Not Interfere with the Independence of the Judiciary

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

6. The Exercise of the Royal Prerogative of Mercy, by its Very Nature, Should not Result in an Increased Penalty or Hardship

When considering the merits of a case, the decision should not, in any way, increase the penalty or hardship for the applicant.

7. Requests for the Exercise of the Royal Prerogative of Mercy Should be Supported by Evidence

Requests for the exercise of the Royal Prerogative of Mercy should be supported by evidence to substantiate the claim(s) made by the applicant. There should be adequate, reliable, relevant and verifiable information that demonstrates how the applicant meets the criteria for the exercise of clemency.

Specific Remedies and Criteria

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

Free Pardon

Definition

A free pardon is an absolute, unconditional pardon. An individual granted a free pardon is deemed to have never committed the offence. Any consequence resulting from the conviction, such as fines, prohibitions or forfeitures will be cancelled 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.

A free pardon may be a formal recognition that a person was erroneously convicted of an offence. It may also be granted where considerations of justice, humanity and compassion warrant the granting of a pardon that is absolute and free of conditions.

A grant of a free pardon is not necessarily a pardon of the applicant’s entire criminal record; it results only in the removal of a specific conviction from the criminal record.

Criteria

A free pardon may be granted where there is evidence to establish the innocence of the convicted person that was not available at the time of conviction, or evidence of the existence of exceptional justice, humanitarian, or compassionate considerations.

In order for a free pardon to be considered, the applicant should have exhausted all appeal and conviction review mechanisms available under the Criminal Code, or other pertinent legislation, unless doing so would further exacerbate the hardship experienced.

Authority

Governor in Council and Governor General

Conditional Release Prior to Eligibility Under the Corrections and Conditional Release Act (CCRA)

Definition

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

A conditional release prior to eligibility under the CCRA has the same meaning and effect as conditional release granted under the CCRA.

Criteria

In order for a conditional release to be granted prior to eligibility under the CCRA, the applicant must be ineligible for any other form of release under the CCRA, and the applicant should not, by reoffending, present an undue risk to society. In addition, there should exist clear evidence of injustice, inequity, error of law or undue hardship.

Limitations to one’s freedom and to one’s rights to participate fully as a member of society, the distance and often the isolation from one’s family and friends, are considered the direct consequences of a sentence of imprisonment. Such limitations do not, in themselves, constitute undue hardship.

Similarly, whereas illness or deteriorating health may cause hardship, it does not, in itself, constitute a sufficient reason to grant a conditional release prior to eligibility for conditional release under the CCRA. For this remedy to be granted, medical needs would be considered as one of many factors.

Authority

Governor in Council and Governor General

Conditional Pardon Prior to Eligibility, or due to Ineligibility, Under the Criminal Records Act (CRA)

Definition

Conditional pardon prior to eligibility under the CRA:

A conditional pardon prior to eligibility under the CRA is the granting of a pardon, with conditions, to an individual in respect of whom the required waiting period to apply for a pardon or record suspension under the CRA has not yet passed.  

Conditional pardon due to ineligibility under the CRA:

A conditional pardon due to ineligibility under the CRA is the granting of a pardon, with conditions, to an individual, despite that they will never be eligible for a pardon or record suspension under the CRA.

A conditional pardon prior to eligibility, or due to ineligibility, under the CRA has the same meaning and effect as a pardon granted or record suspension ordered under the CRA.

Criteria

In order for a conditional pardon to be granted prior to eligibility, or due to ineligibility under the CRA, the applicant must be able to demonstrate their current ineligibility under the CRA. Such a pardon may be considered when there is evidence of good conduct, within the meaning of the CRA, and consistent with the policies of the PBC. Finally, there should be clear evidence of undue hardship.

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.

Authority

Governor in Council and Governor General

Remissions and Relief from Prohibitions

An individual who is serving a sentence, including any monetary or prohibition order, or an individual who is subject to any other type of order, forfeiture or prohibition imposed under the Criminal Code, may request that the remainder of the sentence, order or prohibition be set aside for justice, humanitarian or compassionate reasons.

In order for any type of sentence, prohibition order, monetary order, or other order to be set aside, there should be clear evidence of injustice, inequity or error in law, or undue hardship experienced as a result of the sentence or order.

In addition, further criteria should be considered in specific types of requests, as set out below:

1. Remission of Sentence

Definition

Remission of a sentence is the setting aside of all, or part of, a custodial or non-custodial sentence imposed by the court.

Criteria

In addition to the criteria for setting aside all types of sentences and orders, in order for a custodial or non-custodial sentence to be remitted, consideration should be given to whether or not the remission of the sentence would place society at undue risk of the applicant reoffending. This is particularly relevant in cases of requests for remission of a sentence of imprisonment.

Authority

Governor General

2. Remission of Fines, Restitution Orders, Forfeitures, Estreated Bails and Pecuniary Penalties

Definition

Remission of a fine, a restitution order, a forfeiture, an estreated bail or a pecuniary penalty is the setting aside of all, or part of, the penalty imposed by the court.

Criteria

In addition to the criteria for setting aside all types of sentences and orders, in order for a monetary penalty to be remitted, consideration should be given to whether the remission would result in hardship to another person.

Authority

Governor in Council and Governor General

3. Relief from Prohibitions

Definition

Relief from a prohibition is the cancellation or variation of a prohibition that was ordered against an individual by a court pursuant to the Criminal Code, either as a result of a conviction or separately from or in the absence of a conviction.

Criteria

In addition to the criteria for setting aside all types of sentences and orders, a prohibition order may be cancelled or varied only where there is clear evidence that cancelling or varying the prohibition would not place society at undue risk of the applicant reoffending.

Authority

Governor General

Note

Pursuant to section 109 of the CCRA, the Board has authority to cancel or vary a portion of a driving prohibition order made under section 259, as it read on December 17, 2018, or section 320.24 of the Criminal Code after a prescribed period. Consistent with the principle that the Royal Prerogative of Mercy is not intended to circumvent any other existing legislation, such recourse may only be invoked for driving prohibitions where the applicant is otherwise ineligible under the provisions of the CCRA.

Respite

Definition

Respite is the temporary interruption of the execution of a sentence.

Criteria

In order for a respite in the execution of the sentence to be considered, there should be clear 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 present an undue risk to society of the offender reoffending.

Authority

Governor General

Revocation of a Remedy Granted

All remedies described above are subject to revocation 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 revoked if any condition under which they are granted is subsequently breached.