Chapter 12 - Pardons/Record Suspension, Driving Prohibition Orders and the Royal Prerogative of Mercy

In Effect

2022-10-24

Legislative Framework

Criminal Code, section 2.

Criminal Records Act CRA, as it read on June 28, 2010, sections 4 and 4.1.

CRA, as it read on March 12, 2012, sections 4, 4.1 and Schedule 1.

CRA, sections 2, 2.2, 4, 4.01, 4.1, 4.2, 6.1, 7, 7.1, 7.2, Schedules 1 and 3.

Criminal Records Regulations, section 1.1.

Determining the Applicable Legislative Scheme

1. Changes made to the Criminal Records Act CRA on June 29, 2010, and on March 13, 2012, will not be applied retroactively for individuals who committed their offence prior to the coming into force of these amendments.
2. In cases where the individual was convicted of more than one offence that span multiple legislative schemes, pardon and record suspension applications will be processed according to the least restrictive scheme available to the individual.
3. If the date of commission of an offence is not available, the applicable legislative scheme will be determined based on the date of conviction, or if this date is not available, the date of sentencing.
4. A pardon or record suspension may only be granted or ordered in respect of all of the applicant’s convictions.

Eligibility

5. In accordance with subsection 4(1) of the CRA, section 4 of the CRA as it read on March 12, 2012, and section 4 of the CRA as it read on June 28, 2010, an individual is ineligible to apply for a pardon or record suspension until a specific period of time has elapsed after the expiration according to law of their sentence.
6. In accordance with subsection 4(3.1) of the CRA, an individual who has been convicted of only an offence referred to in Schedule 3 of the CRA is not subject to the periods of ineligibility set out in subsection 4(1) of the CRA, section 4 of the CRA as it read on March 12, 2012, or section 4 of the CRA as it read on June 28, 2010.
7. In accordance with subsection 4(3.11) of the CRA, in cases where an individual has been convicted of an offence referred to in Schedule 3 of the CRA, as well as any other offence, the period of time that must elapse before an individual is eligible to apply is determined without taking into account the offence referred to in Schedule 3 of the CRA.
8. For the purposes of subsection 4(1) of the CRA, section 4 of the CRA as it read on March 12, 2012, and section 4 of the CRA as it read on June 28, 2010, a sentence is expired according to law once an individual has completed all elements of the sentence imposed for an offence, with the exception of prohibition orders. This includes, but is not limited to:
   1. a sentence of imprisonment or conditional sentence;
   2. a period of probation; and
   3. payment of any fine, victim fine surcharge (with the exception of a surcharge imposed under section 737 of the Criminal Code on or after October 24, 2013, and before December 14, 2018), restitution and compensation orders.
9. The specific period of time that must elapse before an individual is eligible to apply is detailed in Annex E (Eligibilities Table for Pardons) and Annex F (Eligibilities Table for Record Suspensions).

Schedule 3 Offences

10. An individual who has been convicted of an offence referred to in Schedule 3 of the CRA is not required to pay any fine or victim fine surcharge imposed for the Schedule 3 offence prior to applying for a pardon or record suspension.
11. In accordance with subsection 4(3.21) of the CRA, in cases where a fine and/or victim fine surcharge is imposed as a single sentence for both an offence referred to in Schedule 3 of the CRA and another offence, an individual is ineligible to apply for a pardon or record suspension until after the fine and/or victim fine surcharge has been paid.

Ineligible Persons

12. Pursuant to subsection 4(2) of the CRA, an individual is ineligible to apply for a record suspension if they have been convicted of:
    1. an offence referred to in Schedule 1 of the CRA; or
    2. more than three offences each of which was either prosecuted by indictment or is a service offence that is subject to a maximum punishment of imprisonment for life and for each of which the individual was sentenced to imprisonment for two years or more.
13. In accordance with subsection 4(3) of the CRA, the Board may make an exception for an individual who has been convicted of an offence referred to in Schedule 1 of the CRA, if it is satisfied that the individual:
    1. was not in a position of trust or authority towards the victim and the victim was not in a relationship of dependency with the applicant;
    2. did not use, threaten to use or attempt to use violence, intimidation or coercion in relation to the victim; and
    3. was less than five years older than the victim.
14. Board members will review the information provided by the applicant to determine whether they meet the criteria for an exception to the ineligibility.

Decision-Making Criteria and Process

15. Board members will assess all relevant information to determine whether the applicant meets the criteria set out in the applicable legislative scheme.
16. In all cases referred to them, Board members will assess whether the applicant has been of good conduct.
17. In cases involving offences set out in paragraph 4(1)(a) of the CRA or paragraph 4(a) of the CRA as it read on or after June 29, 2010, and before March 13, 2012, Board members will also assess whether the pardon or record suspension:
    1. would provide a measurable benefit to the applicant;
    2. would sustain the applicant’s rehabilitation into society; and
    3. would not bring the administration of justice into disrepute.
18. When assessing criteria to determine whether to grant a pardon or order a record suspension, the Board will not take into account any offence referred to in Schedule 3 of the CRA.
19. Board members are responsible for determining the relevance, reliability and persuasiveness of information.

Conduct

20. In determining whether the applicant has been of good conduct, Board members should consider whether the applicant’s behaviour is consistent with and demonstrates a law-abiding lifestyle.
21. The Board is not subject to the same standards as a criminal court. The presumption of innocence is not applicable in the context of a pardon or record suspension application.
22. Board members should consider a wide range of information relating to the applicant’s positive and negative conduct, including, but not limited to:
    1. information from the police about a non-law abiding behaviour that did not result in a charge;
    2. information about an incident that resulted in a charge that was subsequently withdrawn, stayed or dismissed, or that resulted in a peace bond or acquittal;
    3. information about an incident that resulted in a verdict of not criminally responsible on account of mental disorder;
    4. information about a peace bond or the use of alternative measures (e.g. community service work), including information about the applicant’s adherence to the conditions;
    5. information about an offence that led to a record of a discharge, if less than one year has elapsed in the case of an absolute discharge or less than three years have elapsed in the case of a conditional discharge;
    6. information about convictions under federal, territorial and provincial statutes and municipal by-laws;
    7. information about the applicant’s suspected or alleged criminal behaviour that is exchanged with justice system participants, as defined in section 2 of the Criminal Code;
    8. information obtained by the Parole Board of Canada by making independent inquiries with justice system participants, as defined in section 2 of the Criminal Code;
    9. official documents submitted by the applicant relating to the commission, the investigation, and/or the prosecution of the offence;
    10. international documents, such as an attestation of the applicant’s good conduct from law enforcement officials;
    11. representations provided by, or on behalf of, the applicant; and
    12. information submitted to the Board by others with knowledge of the case, such as victims.
23. When assessing information about an applicant’s interactions with the criminal justice system, Board members should consider the time elapsed since the most recent interaction, the nature and severity of the incident, any similarity to previous patterns of offending and incident-free periods.

Measurable Benefit

24. In determining whether a pardon or record suspension would provide a measurable benefit to the applicant, Board members may consider whether it would assist the applicant in:
    1. obtaining employment and/or gaining financial stability;
    2. obtaining housing and/or improving their living conditions;
    3. pursuing or furthering their education;
    4. removing the stigma associated with having a criminal record and/or changing how they are perceived by others; and
    5. improving their social and/or personal circumstances.

Sustained Rehabilitation

25. In determining whether a pardon or record suspension would sustain the applicant’s rehabilitation in society as a law-abiding citizen, Board members may consider whether the applicant:
    1. has made a positive contribution to society;
    2. has a lifestyle that is no longer associated with criminal behaviour;
    3. has taken responsibility for the offence; and
    4. has taken steps to develop pro-social relationships and social networks and/or identify a support system.

Bringing the Administration of Justice into Disrepute

26. In accordance with subsection 4.1(3) of the CRA, in determining whether granting a pardon or ordering a record suspension would bring the administration of justice into disrepute, Board members may consider:
    1. the nature, gravity and duration of the offence;
    2. the circumstances surrounding the commission of the offence;
    3. information relating to the applicant’s criminal history and, in the case of a service offence, any service offence history of the applicant that is relevant to the application; and
    4. any factor listed in section 1.1 of the Criminal Records Regulations (CRR).
27. Board members are not limited to considering the factors set out subsection 4.1(3) of the CRA or section 1.1 of the CRR, and may consider other aggravating and mitigating factors.

Revocation of a Pardon or Record Suspension

28. In accordance with section 7 of the CRA, Board members may revoke a pardon or record suspension:
    1. if the individual is subsequently convicted of an offence punishable on summary conviction under a federal act or its regulations, other than an offence referred to in subparagraph 7.2(a)(ii) of the CRA;
    2. on evidence establishing to the satisfaction of the Board members that the individual is no longer of good conduct; or
    3. on evidence establishing to the satisfaction of the Board members that the individual knowingly made a false or deceptive statement in relation to their application, or knowingly concealed some material particular in relation to their application.
29. Board members will assess all relevant information to determine whether the individual meets one of these criteria.
30. In determining whether to revoke a pardon or record suspension where the individual is subsequently convicted of an offence, Board members may consider:
    1. information that suggests a significant disregard for public safety and order and/or laws and regulations, given the individual’s criminal history;
    2. whether the new conviction is similar in nature to the offence for which the pardon was issued/granted or the record suspension was ordered; and
    3. the period of time that has elapsed since the individual completed all sentences.

Exceptions

31. Pursuant to subsection 4.1(1.2) of the CRA, a record suspension that was ordered only for offences referred to in Schedule 3 of the CRA may not be revoked on evidence that the individual is no longer of good conduct.

Cessation of a Pardon or Record Suspension

32. Pursuant to paragraph 7.2(a) of the CRA, a pardon or record suspension automatically ceases to have effect if the individual is subsequently convicted of an offence referred to in subparagraph 7.2(a)(i) or 7.2(a)(ii) of the CRA.
33. In accordance with paragraph 7.2(b) of the CRA, the Board may cease a pardon or record suspension if it is convinced by new information that the individual was not eligible for the pardon when it was issued/granted, or for the record suspension when it was ordered.
34. In determining whether the individual was not eligible, Board members will consider all relevant information, including new information relating to a sentence that was not completed or a conviction that was not included in the original pardon or record suspension application.

Quorum

35. The review of a pardon or record suspension application or of whether to revoke or cease a pardon or record suspension will be conducted by a quorum of one Board member, with the exception of a review where the individual was convicted of a sexual offence, which will be conducted by a quorum of two Board members.

Proposal to Deny, Refuse, Revoke or Cease

36. In accordance with subsections 4.2(2) and 7.1(1) of the CRA, in cases where the Board proposes to deny a pardon or refuse to order a record suspension, or proposes to revoke a pardon or record suspension, the individual will be:
    1. advised in writing of the Board’s proposal; and
    2. provided with an opportunity to make, or have made on their behalf, any representations they believe to be relevant before a final decision is made.
37. The Board’s proposal to revoke a pardon or record suspension should indicate under which criterion set out in section 7 of the CRA the proposal is made.
38. The individual may submit written representations and/or, with the Board’s authorization, make representations at a hearing.
39. In cases where the Board proposes to cease a pardon or record suspension pursuant to paragraph 7.2(b) of the CRA, the individual will also be advised in writing of the Board’s proposal and provided with an opportunity to submit written representations and/or, with the Board’s authorization, make representations at a hearing before a final decision is made.
40. The Board’s review will not be conducted until at least 90 days after the individual is advised of the Board’s proposal, unless representations are received within the 90-day timeframe.
41. The review of the individual’s representations will be conducted by a different Board member or, in cases where the individual was convicted of a sexual offence, by two different Board members.
42. Guidance on authorizing and conducting hearings in the context of a pardon/record suspension is provided in Policy 12.3 (Hearings for Pardons/Record Suspensions, Driving Prohibition Orders and the Royal Prerogative of Mercy).

Decision and Reasons

43. In accordance with procedural fairness, to ensure a fair and understandable process, Board members will provide reasons for decision that summarize relevant information, their assessment of the application and overall findings, and the rationale for their decision.
44. A reasonable decision is transparent, explains how the decision was reached and provides a clear rationale.
45. The reasons for decision will include the type of decision, the legal criteria for the review and a concluding assessment of whether or not the legal criteria for the decision are met.
46. The written reasons for decision will be provided within the established timeframes.

Cross-References

47. Decision-Making Policy Manual

    12.3 Hearings for Pardons/Record Suspensions, Driving Prohibition Orders and the Royal Prerogative of Mercy

    Annex E Eligibilities Table for Pardons

    Annex F Eligibilities Table for Record Suspensions

In Effect

2022-10-24

Legislative Framework

Corrections and Conditional Release Act, section 109.

Criminal Code, section 259, as it read on December 17, 2018.

Criminal Code, section 320.24.

Eligibility

1. In accordance with section 109 of the Corrections and Conditional Release Act (CCRA), an individual is eligible to apply for relief from the unexpired portion of a driving prohibition order after a period of:
   1. 10 years after the commencement of the order, in the case of a prohibition for life; or
   2. five years after the commencement of the order, in the case of a prohibition for more than five years but less than life.
2. Individuals who are not yet eligible for relief under section 109 of the CCRA may seek a remedy under the Royal Prerogative of Mercy.

Decision-Making Criteria and Process

3. In determining whether to cancel or vary the unexpired portion of a driving prohibition order, Board members should consider whether:
   1. there is substantial evidence that the driving prohibition order is causing undue hardship;
   2. there exist no other remedies, remedies are not lawfully available in a particular case, or recourse to them would result in greater hardship; and
   3. there is substantial evidence that cancelling or varying the driving prohibition order would not place the community at risk of the applicant’s re-offending.
4. Undue hardship includes suffering of a mental, physical and/or financial nature, that is disproportionate to the nature and the seriousness of the offence for which the prohibition was ordered and its resulting consequences, and that is more severe than for other individuals in similar situations.

Quorum

5. The review of an application to cancel or vary the unexpired portion of a driving prohibition order will be conducted by a quorum of one Board member.

Proposal to Deny

6. In cases where the Board proposes to deny a request to cancel or vary a driving prohibition order, the applicant will be:
   1. advised in writing of the Board’s proposal; and
   2. provided with an opportunity to submit written representations or make representations at a hearing before a final decision is made.
7. The review of the applicant’s representations will be conducted by a different Board member.
8. Guidance on conducting hearings in the context of driving prohibition orders is provided in Policy 12.3 (Hearings for Pardons/Record Suspensions, Driving Prohibition Orders and the Royal Prerogative of Mercy).

Decision and Reasons

9. In accordance with procedural fairness, to ensure a fair and understandable process, Board members will provide reasons for decision that summarize relevant information, their assessment of the application and overall findings, and the rationale for their decision.
10. A reasonable decision is transparent, explains how the decision was reached and provides a clear rationale.

Cross-References

11. Decision-Making Policy Manual

    12.3 Hearings for Pardons/Record Suspensions, Driving Prohibition Orders and the Royal Prerogative of Mercy

12. Royal Prerogative of Mercy Ministerial Guidelines

In Effect

2022-10-24

Legislative Framework

Corrections and Conditional Release Act, sections 109 and 110.

Criminal Records Act, sections 3, 4.2(2), 4.2(3), 7.1 and 7.2.

Pardons/Record Suspensions

1. In accordance with subsections 4.2(2) and 7.1(1) of the Criminal Records Act CRA, the Board may authorize a hearing to provide the individual with an opportunity to make representations in cases where the Board:
   1. proposes to deny a pardon or refuse to order a record suspension, pursuant to subsection 4.2(2) of the CRA; or
   2. proposes to revoke a pardon or record suspension, pursuant to subsection 7.1(1) of the CRA.
2. The Board may also authorize a hearing in cases where it proposes to cease a pardon or record suspension pursuant to paragraph 7.2(b) of the CRA.
3. Guidance on pardon and record suspension reviews is provided in Policy 12.1 (Pardons/Record Suspensions).
4. In determining whether to authorize a hearing, Board members should consider the individual’s written representations and all relevant case-specific information, including, but not limited to, whether:
   1. there is incomplete or discordant information on file, of relevance to the review, that could be clarified at a hearing; or
   2. information on file indicates that the individual has difficulties (cognitive, mental health, physical or other) that prevent them from communicating effectively in writing.

Driving Prohibition Orders and Royal Prerogative of Mercy

5. The Board will conduct a hearing, at the request of the applicant, in cases where the Board:
   1. proposes to deny a request to cancel or vary the unexpired portion of a driving prohibition order; or
   2. proposes to make a negative recommendation to the Minister with regard to the exercise of the Royal Prerogative of Mercy (RPM) or the cancellation of a remedy granted under the RPM.
6. Guidance on cancelling and varying driving prohibition orders is provided in Policy 12.2 (Driving Prohibition Orders).
7. Guidance on assessing requests for the exercise of the RPM and providing recommendations to the Minister is detailed in the Royal Prerogative of Mercy Ministerial Guidelines.

Hearing Process

8. At the beginning of every hearing, Board members will verify whether the procedural safeguards have been met and briefly clarify the purpose of the hearing.
9. Board members will provide the individual with an opportunity to present new information, clarify information that the Board relied upon and make general observations.

Assistants at Hearings

10. The individual may be assisted at the hearing by a person of their choice.
11. The assistant may:
    1. be present at the hearing with, or on behalf of, the individual;
    2. advise the individual throughout the hearing, including conferring privately with the individual during the hearing; and
    3. address the Board members on behalf of the individual at times the Board members determine to be conducive to the effective conduct of the hearing.
12. The individual may choose only one person as an assistant during the hearing. At the request of the individual, other persons may be permitted by Board members to attend the hearing.

Interpreters at Hearings

13. An individual who does not have an adequate understanding of at least one of Canada’s official languages is entitled to the assistance of an interpreter.
14. The role of the interpreter is to interpret between the individual’s language and the official language of the hearing.

Audio Recordings of Hearings

15. The Board will make an audio recording of every hearing, which will not include Board member deliberations.

Decision and Reasons

16. In cases where a hearing is conducted for a review involving a pardon, record suspension or driving prohibition order, Board members may:
    1. advise the individual of their decision, including their reasons for decision, at the end of the hearing; or
    2. conclude the hearing and make the decision at a later date.
17. In accordance with procedural fairness, the written reasons for decision should be provided within a reasonable period and if applicable, will be provided within the established timeframes.
18. In cases where a hearing is conducted with regard to the exercise of the RPM, Board members will conclude the hearing and make their recommendation at a later date.

Cross-References

19. Decision-Making Policy Manual

    12.1 Pardons/Record Suspensions

    12.2 Driving Prohibition Orders

20. Royal Prerogative of Mercy Ministerial Guidelines