Record Suspension Decisions and Clemency Recommendations

Official Title: Performance Monitoring Report 2019-2020, 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 2019-20, the Board received 7,019 record suspension applications and accepted 5,222 applications for processing. The Board also received 5,422 pardon applications and accepted 4,360 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 2019-20 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 2019-20, the Board rendered 4,919 pardon decisions; 96% of pardons were granted/issued.
• In 2019-20, the Board made 5,496 record suspension decisions; 96% of record suspensions were ordered.
• In 2019-20, the average processing time of a pardon application accepted for processing was 8 months where the final decision was to grant/issue a pardon, and 18 months for those cases where the final decision was to deny a pardon.
• In 2019-20, the average processing time of a record suspension application accepted for processing was 165 days for summary offences, 345 days for indictable offences where the final decision was to order a record suspension, and 480 days for those cases where the final decision was to refuse to order a record suspension.

In 2019-20, the number of pardons and record suspensions revoked and those that had ceased to exist increased from the previous year to 849 (+45%). It included 342 pardons and 67 record suspensions revoked by the PBC (48%); 387 pardons and 51 record suspensions that ceased to exist on RCMP authority (52%); and two pardons that ceased to exist on PBC authority.

• Over the last 10 years, the cumulative pardon/record suspension revocation/cessation rate has remained relatively low, averaging 4.75%. Since the reintroduction of pardon operations in 2016-17, the increase in the rate has been smaller. In 2019-20, the rate increased 0.06 of a percentage point reaching 5.15%.

Figure 41. Pardon/Record Suspension Revocation/Cessation Rate

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 PBC 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 2019-20, the Board received 57 clemency requests, nine more when compared to the previous year.
• In the last five years (between 2015-16 and 2019-20), six clemency requests have been granted, one has been denied and 173 requests have been discontinued. The 173 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, 2020, there were 150 active clemency cases.

Table 165. Pardon Applications Received – Acceptance Rate

Applications	2005-06	2006-07	2007-08	2008-09	2009-10	2010-11	2011-121	2017-182	2018-192	2019-202
Received	27,948	26,520	30,416	35,784	32,104	31,969	28,814	5,202	6,463	5,422
Accepted	19,043	20,008	22,936	27,398	24,584	16,710	18,936	4,366	5,184	4,360
% accepted	68	75	75	77	77	52	66	84	80	80

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.

Note: The number of pardon applications accepted in 2017-18 and 2018-19 is lower than in previous reports as applications that were discontinued were excluded.

Table 166. Record Suspension Applications Received – Acceptance Rate

Applications	2012-13	2013-14	2014-15	2015-16	2016-17	2017-18	2018-19	2019-20
Received	19,526	14,253	12,415	12,384	11,566	9,460	7,364	7,019
Accepted	11,527	9,624	9,071	8,875	8,153	6,5021	5,347	5,222
% accepted	59	68	73	72	71	69	73	74

¹ Includes 632 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.

Note: The number of record suspension applications accepted in 2017-18 and 2018-19 is lower than in previous reports as applications that were discontinued were excluded.

Table 167. Pardons Granted/Issued and Denied

Decision	2014-151		2015-161		2016-171		2017-182		2018-192		2019-202
	#	%	#	%	#	%	#	%	#	%	#	%
Granted	5,625	89	1,628	82	3,740	97	1,957	94	4,403	99	4,709	96
Denied	681	11	348	18	125	3	133	6	42	1	210	4
Total	6,306	-	1,976	-	3,865	-	2,090	-	4,445	-	4,919	-

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 168. Record Suspensions Ordered and Refused

Decision	2014-15		2015-16		2016-17		2017-18		2018-19		2019-20
	#	%	#	%	#	%	#	%	#	%	#	%
Ordered	8,422	92	8,427	94	8,340	95	7,037	98	6,028	96	5,287	96
Refused	726	8	523	6	438	5	142	2	225	4	209	4
Total	9,148	-	8,950	-	8,778	-	7,179	-	6,253	-	5,496	-

Table 169. Average Processing Times for Pardon Applications

Decision/Processing Time	2015-16	2016-17	2017-18	2018-19	2019-20
Cases processed	1,976	3,865	2,090	4,445	4,919
Pardons granted/issued	1,628	3,740	1,957	4,403	4,709
Average processing time (months)	50	57	3	6	8
Pardons denied	348	125	133	42	210
Average processing time (months)	46	61	67	16	18

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

Table 170. Average Processing Times for Record Suspension Applications

Decision/Processing Time	2015-16	2016-17	2017-18	2018-19	2019-20
Cases processed	8,950	8,778	7,179	6,253	5,496
Record suspensions ordered	8,427	8,340	7,037	6,028	5,287
Average processing time-indictable offence (days)	317	348	338	376	345
Average processing time-summary offence (days)	155	168	163	171	165
Record suspensions refused	523	438	142	225	209
Average processing time (days)	388	419	455	505	480

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

Table 171. Pardons and Record Suspensions Revoked/Ceased to Exist

Decision	2010-11	2011-12	2012-13	2013-14	2014-15	2015-16	2016-17	2017-18	2018-19	2019-20
Revoked by PBC	71	1,129	987	669	438	667	501	85	59	409
Ceased to exist (RCMP authority)	1,043	883	698	579	574	628	768	674	525	438
Ceased to exist (PBC authority)	12	20	7	10	4	6	1	16	2	2
Total	1,126	2,032	1,692	1,258	1,016	1,301	1,270	775	586	849

Table 172. Pardon/Record Suspension Revocation/Cessation Rate

Year	Cumulative # of Pardons Granted/Issued and Record Suspensions Ordered to Date	Pardons and Record Suspensions Revoked/Ceased during the Year	Cumulative # of Pardons and Record Suspensions Revoked/Ceased	Cumulative Revocation/ Cessation Rate (%)
2010-11	453,330	1,126	17,339	3.82
2011-12	456,600	2,032	19,371	4.24
2012-13	463,234	1,692	21,063	4.55
2013-14	480,010	1,258	22,321	4.65
2014-15	494,057	1,016	23,337	4.72
2015-16	504,112	1,301	24,638	4.89
2016-17	516,192	1,270	25,908	5.02
2017-18	525,186	775	26,683	5.08
2018-19	535,615	586	27,269	5.09
2019-20	545,613	849	28,118	5.15

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 173. Royal Prerogative of Mercy Requests

Year of Action	Received	Discontinued	Decisions Rendered
2010-11	38	19	8
2011-12	29	24	12
2012-13	44	7	7
2013-14	46	12	4
2014-15	37	13	14
2015-16	46	13	35
2016-17	37	16	3
2017-18	36	54	-
2018-19	48	24	8
2019-20	57	19	7

Note 1: Excludes clemency granted to Habitual Offenders (2), as a result of the Self Defence Review (5) and Ordinary pardons granted to Wheat Farmers (10).

Note 2: Excludes requests for relief from driving prohibitions under the CCRA.

Note 3: Decisions made by the Minister of Public Safety and Emergency Preparedness not to investigate a remedy are considered to be a decision rendered rather than a discontinuation for the purposes of this table.

Note 4: Reasons for discontinuation include the applicant becoming eligible to apply for a pardon or record suspension under the CRA, withdrawals of the application, new offending and the death of the applicant.

Table 174. Royal Prerogative of Mercy Requests Received by Requested Remedy

Year Received	Conditional Pardon	Remission of Sentence	Relief from Prohibition*	Remission of Fine, Forfeiture, Estreated Bail and Pecuniary Penalties	Free Pardon
2010-11	27	1	2	7	1
2011-12	25	1	-	3	-
2012-13	38	-	4	2	-
2013-14	38	-	5	3	-
2014-15	32	-	4	-	1
2015-16	28	2	10	3	3
2016-17	29	1	5	2	-
2017-18	28	-	6	2	-
2018-19	30	1	9	8	-
2019-20	34	2	14	3	4

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

Table 175. Royal Prerogative of Mercy Decisions – Pardon

Year Decision Rendered	Conditional Pardon Prior to Eligibility under the CCRA		Conditional Pardon Prior to Eligibility under the CRA		Free Pardon (recognition of erroneous conviction)
	Granted	Denied	Granted	Denied	Granted	Denied
2010-11	-	-	2	-	-	-
2011-12	-	-	2	2	-	-
2012-13	-	-	-	-	-	-
2013-14	-	-	-	1	-	-
2014-15	-	-	-	1	-	-
2015-16	-	-	-	-	-	-
2016-17	-	-	-	1	-	-
2017-18	-	-	-	-	-	-
2018-19	-	-	1	-	-	-
2019-20	-	-	-	-	-	-

Table 176. Royal Prerogative of Mercy Decisions - Remissions and Relief from Prohibition

Year Decision Rendered	Remission of Sentence		Remission of Fine, Forfeiture, Estreated Bail and Pecuniary Penalties		Relief from Prohibition*
	Granted	Denied	Granted	Denied	Granted	Denied
2010-11	-	-	-	-	-	-
2011-12	-	-	-	-	-	-
2012-13	-	-	-	-	-	-
2013-14	-	-	-	-	-	-
2014-15	-	-	-	-	-	-
2015-16	-	-	-	-	-	-
2016-17	-	-	-	-	1	-
2017-18	1	-	-	-	-	-
2018-19	-	-	1	-	-	-
2019-20	-	-	2	-	-	-

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