Record Suspension Decisions and Clemency Recommendations

Official Title: Performance Monitoring Report 2017-2018, Record Suspension Decisions and Clemency Recommendations
From: Parole Board of Canada

Record Suspension Decisions and Clemency Recommendations

Tables 172-182

The Record Suspension and Clemency program involves the review of record suspension applications, the ordering of record suspensions and the making of clemency recommendations.

Record Suspension Program

A record suspension, formerly a pardon, allows people who were convicted of a criminal offence, but have completed their sentences and demonstrated they are law-abiding citizens for a prescribed number of years, to have their criminal records kept separate and apart from other criminal records.

The Criminal Records Act (CRA), originally created in 1970, grants the Parole Board of Canada exclusive jurisdiction to order, refuse to order, or revoke record suspensions for convictions under federal acts or regulations of Canada.

Since 2010, the pardon program has undergone significant changes.

On June 29, 2010, Bill C-23A amended the CRA by extending the ineligibility periods for certain applications for pardon: it changed the waiting periods from 3 to 5 years for offences punishable on summary conviction that are part of Schedule I; and from 5 to 10 years for serious personal injury offences for which the sentence of imprisonment was two years or more and for offences referred to in Schedule I that were prosecuted by indictment. Additionally, the bill resulted in significant changes to program operations. The process was modified to include additional inquiries and new, more exhaustive investigations by staff for some applications that required additional review time by Board members. New concepts of merit and disrepute to the administration of justice form part of the statute. As a result of these new changes, application processing time increased.

On March 13, 2012, Bill C-10 amended the CRA, replacing the term “pardon” with the term “record suspension” and increasing the waiting periods for a record suspension to five years for all summary convictions and to ten years for all indictable offences. Individuals convicted of sexual offences against minors (with certain exceptions) and those who have been convicted of more than three indictable offences, each with a sentence of two or more years, became ineligible for a record suspension.

Upon the implementation of Bill C-10, the Record Suspension program continued processing pardon applications received before March 13, 2012, as well as processing record suspension applications received on and after that date. In 2016/17, all remaining pardon applications were processed.

In 2017/18, some of the C-10 and C-23A amendments to the CRA were reversed for certain cases. Following the British Columbia Supreme Court decision on April 18, 2017 (Chu v Canada) and the Ontario Superior Court decision on June 14, 2017 (Charron/Rajab v Canada), the application of the CRA amendments for applicants who had committed an offence prior to the implementation of these amendments (such as increased waiting periods and tightened ineligibility criteria) were struck down as contrary to sections 11(h) and (i) of the Charter. As a result, the Board resumed processing pardon cases for residents of Ontario and British Columbia based on the criteria that were in force on the day on which the offence was committed. 

• In 2017/18, the Board received 9,461 record suspension applications and accepted 6,529 applications for processing as record suspensions and 638, as pardons (Ontario and British Columbia cases). The Board also received 5,200 pardon applications and accepted 4,429 pardon applications for processing. The acceptance rate was 79%.

Figure 42 – Pardon and Record Suspension Applications

As record suspensions are not fully comparable with pardons (the eligibility criteria for a record suspension are different than for a pardon), direct comparisons between the year-end reports would be inaccurate. The number of record suspension applications received between 2012/13 and 2017/18 was much lower than the number of pardon applications received in the preceding years, in part due to the decrease in the number of citizens eligible to apply for record suspensions and in part due to the increase in the processing fee.

• In 2017/18, the Board rendered 2,089 pardon decisions, granting a pardon in 94% of cases and denying a pardon in 6% of cases.
• In 2017/18, the Board made 7,180 record suspension decisions; 98% of record suspensions were ordered and 2% were refused.
• In 2017/18, the average processing time of a record suspension application accepted for processing was 162 days for summary offences and 351 days for indictable offences where the final decision was to order a record suspension, and 454 days for those cases where the final decision was to refuse to order a record suspension.

Figure 43. Pardon/Record Suspension Revocation/Cessation Rate

• In 2017/18, the number of pardons and record suspensions revoked and those that had ceased to exist decreased from the previous year to 777 (39%). It included 78 pardons and seven record suspensions revoked by the PBC (11%); 634 pardons and 42 record suspensions that ceased to exist on RCMP authority (87%); and eight pardons and eight record suspensions that ceased to exist on PBC authority (2%).
• Over the last 15 years, the cumulative pardon/record suspension revocation/cessation rate has remained relatively low. However, with the termination of the pardon program in 2011/12 as a result of the C-10 legislative changes, pardon revocations continued to be processed and this greatly inflated the total revocation/cessation rate in 2016/17, which increased (by 0.13 of a percentage point) to 5.02%. With the reintroduction of pardon operations last year, the increase in the rate in 2017/18 was smaller (0.06 of a percentage point) reaching 5.08%. 
• Generally, the pardon/record suspension revocation/cessation rate has been relatively low, indicating that 95% of pardoned citizens and those who received record suspensions have remained crime free.

Clemency Program

The clemency provisions of the Letters Patent and those contained in the Criminal Code are used in exceptional circumstances, where no other remedy exists in law to reduce negative effects of criminal sanctions, where remedies are not lawfully available in a particular case, or where recourse to them would result in greater hardship. It is intended for rare cases in which consideration of justice, humanity and compassion override the normal administration of justice.
Clemency (or Royal Prerogative of Mercy) is requested for various reasons with employment being by far the most frequently used. Some of the other reasons include: perceived inequity, medical condition, immigration to Canada, compassion, financial hardship, etc.

The Parole Board of Canada is responsible for assessing requests under the Royal Prerogative of Mercy and making recommendations to the Minister of Public Safety on the merits of each case. The Minister advises the Governor General of Canada (for requests under the Letters Patent) and the Governor in Council (for requests under the Criminal Code) whether to grant or deny clemency.

• In 2017/18, the Board received 34 clemency requests, two fewer when compared to the previous year.
• In the last five years (between 2013/14 and 2017/18), two clemency requests have been granted, three have been denied and 156 requests have been discontinued. The 156 discontinued requests included applications that were discontinued because the applicant became eligible for a pardon under the Criminal Records Act following court decisions, which reversed the changes made to the CRA in 2010 in British Columbia and in 2012 in Ontario. The majority of the remaining requests were discontinued because the Minister determined that the clemency request did not warrant investigation as the criteria had not been met. The next most common reason for discontinuance was because the applicant did not provide sufficient information or proof of excessive hardship.
• As of March 31, 2018, there were 114 active clemency cases. 

Table 172. Pardon Applications Received and Accepted

¹ Refers to pardon applications received on or before March 12, 2012 (C-10).
² Refers to pardon applications processed for residents of Ontario and British Columbia following the reversal of the amendments to the CRA by Supreme Court decisions in those provinces.

Table 173. Record Suspension Applications Received and Accepted

¹ Refers to record suspension applications received between March 13 and March 31, 2012.
² Includes 638 record suspension applications that were discontinued and reclassified as pardon applications for residents of Ontario and British Columbia following the reversal of the amendments to the CRA by Supreme Court decisions in those provinces.

Table 174. Pardons Granted/Issued and Denied

¹ Refers to pardon applications received on or before March 12, 2012 (C-10).
² Refers to pardon applications processed for residents of Ontario and British Columbia following the reversal of the amendments to the CRA by Supreme Court decisions in those provinces.

Table 175. Record Suspensions Ordered and Refused

Table 176. Average Processing Times for Pardon Applications Accepted

Note: The cases processed do not include revocations processed by the PBC.

Table 177. Average Processing Times for Record Suspension Applications Accepted

Note: The cases processed do not include revocations/cessations processed by the PBC.

Table 178. Pardons and Record Suspensions Revoked/Ceased to Exist

Table 179. Pardon/Record Suspension Revocation/Cessation Rate

Note: The cumulative revocation/cessation rate is calculated by dividing the cumulative number of pardons revoked/ceased by the cumulative number of pardons granted/issued and record suspensions ordered to date.

Table 180. Royal Prerogative of Mercy Requests

Note: Applicants may present more than one request per application. Excludes clemency granted to Habitual Offenders (2), as a result of the Self Defence Review (5) and Ordinary pardons granted to Wheat Farmers (10).

Table 181. Royal Prerogative of Mercy Decisions - Pardon

Note: Excludes two cessations of conditional pardons granted prior to eligibility under the CCRA, six cessations of conditional pardons granted prior to eligibility under the CRA and five decisions related to amendments to conditional pardons granted prior to eligibility under the CCRA.

Table 182. Royal Prerogative of Mercy Decisions - Remissions and Relief from Prohibition

* Excludes requests for relief from driving prohibitions under the CCRA.