Record Suspension Decisions and Clemency Recommendations

Official Title: Performance Monitoring Report 2018-2019, Record Suspension Decisions and Clemency Recommendations
From: Parole Board of Canada

Tables 165-176

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 2018-19, the Board received 7,364 record suspension applications and accepted 5,420 applications for processing. The Board also received 6,462 pardon applications and accepted 5,249 pardon applications for processing. The acceptance rate was 77%.

Figure 40. 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 2018-19 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 2018-19, the Board rendered 4,444 pardon decisions; 99% of pardons were granted/issued.
• In 2018-19, the Board made 6,253 record suspension decisions; 96% of record suspensions were ordered.
• In 2018-19, the average processing time of a pardon application accepted for processing was six months where the final decision was to grant/issue a pardon, and 16 months for those cases where the final decision was to deny a pardon.
• In 2018-19, the average processing time of a record suspension application accepted for processing was 171 days for summary offences, 376 days for indictable offences where the final decision was to order a record suspension, and 505 days for those cases where the final decision was to refuse to order a record suspension.

In 2018-19, the number of pardons and record suspensions revoked and those that had ceased to exist decreased from the previous year to 585 (‑25%). It included 51 pardons and seven record suspensions revoked by the PBC (9.9%); 476 pardons and 49 record suspensions that ceased to exist on RCMP authority (89.7%); and one pardon and one record suspension that ceased to exist on PBC authority (0.3%).

• Over the last 10 years, the cumulative pardon/record suspension revocation/cessation rate has remained relatively low, averaging 4.60%. Since the reintroduction of pardon operations in 2016-17, the increase in the rate the following two years was smaller, 0.06 of a percentage point in 2017-18 reaching 5.08% and 0.01 of a percentage point in 2018-19 reaching 5.09%.

Figure 41. Pardon/Record Suspension Revocation/Cessation Rate

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.