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.

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.

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.

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 cases processed do not include revocations processed by the PBC.

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

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.

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.

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

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