Royal Prerogative of Mercy Ministerial Guidelines
The present document constitutes ministerial guidelines to the Parole Board of Canada. The purpose is to assist the PBC in assessing the merits of clemency applications, and determining whether to recommend to the Minister of Public Safety and Emergency Preparedness that an act of clemency be granted.
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.
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 Minister of Public Safety and Emergency Preparedness 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 Minister of Public Safety and Emergency Preparedness 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 Parole Board of Canada shall be guided by the following principles.
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.
The Exercise of the Royal Prerogative of Mercy is Concerned Solely with the Applicant
Each application is 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.
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 is not a mechanism to review the merits of existing legislation, or those of the justice system in general.
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.
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.
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 Parole Board of Canada in assessing the merits of clemency applications, each form of relief is assessed against some specific criteria.
A free pardon is a formal recognition that a person was erroneously convicted of an 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.
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.
Governor in Council and Governor General.
Conditional Pardon - Prior to Eligibility Under the Corrections and Conditional Release Act (CCRA)
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.
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.
Governor in Council and Governor General.
Conditional Pardon – in Advance of Eligibility Under the Criminal Records Act (CRA)
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.
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 Parole Board of Canada in these matters. Finally, there must be substantial evidence of undue hardship, out of proportion to the nature of the offence and more severe than for other individuals in similar situations.
Governor in Council and Governor General.
Remission of Sentence
A remission of sentence amounts to the erasing of all, or part of, a sentence imposed by the court.
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 offence and more severe than for other individuals in similar situations.
Remission of Fine, Forfeiture, Estreated Bails and Pecuniary Penalties
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.
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.
Governor in Council and Governor General.
Respite is the interruption of the execution of a sentence.
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.
Relief from Prohibitions
A relief from a prohibition is the removal or the alteration of a prohibition, imposed by the court as a result of a conviction.
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.
Pursuant to section 109 of the Corrections and Conditional Release Act, the Parole Board of Canada 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 recourse may only be invoked for driving prohibitions where the applicant is otherwise ineligible under the provisions of the Corrections and Conditional Release Act.
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 cancelled if any condition under which they are granted is subsequently breached.
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