Record Suspension Decisions and Clemency Recommendations

Official Title: Performance Monitoring Report 2020-2021, 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 or pardon is designed to support the successful reintegration of an individual into society. It is a formal attempt to remove the stigma of a criminal record for people convicted of an offence under an Act of Parliament, who have completed their sentence, having met criteria in the Criminal Records Act (CRA) and demonstrated law-abiding behaviour for a prescribed number of years. Record suspensions or pardons can be revoked or cease to have effect for a number of reasons. Through this core responsibility, the PBC screens applications for completeness and eligibility, collects information for Board member decision-making and develops policy to guide decision processes. The Criminal Records Act (CRA), originally created in 1970, grants the PBC exclusive jurisdiction to order, refuse to order, or revoke record suspensions for convictions under federal acts or regulations of Canada.

The PBC processes record suspension/pardon applications according to the following service standards:

• Applications seeking a record suspension/pardon for (an) offence(s) tried summarily will be processed within 6 months of application acceptance;
• Applications seeking a record suspension/pardon for (an) offence(s) tried by indictment will be processed within 12 months of application acceptance; and
• Applications in which the PBC is proposing to refuse to order a record suspension/grant a pardon may require up to 24 months after application acceptance to complete.

Since 2010, the pardon program has undergone significant changes.

On June 29, 2010, Bill C-23 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-23 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 response to the March 2020 Federal Court of Canada decision in P.H. v. Canada (Attorney General)(P.H.), PBC policy was revised to provide that pardon and record suspension applications are processed according to the Criminal Records Act (CRA) decision-making criteria that was in force at the time the most recent offence was committed and not the date the application was received by the PBC. Where applications span multiple legislative schemes, policy was amended to specify that the applicable version of the CRA is to be determined based on the most recent offence on the criminal record.

The P.H. decision and corresponding changes to policy significantly affected the PBC’s record suspension workload, as it was necessary to process applications against multiple legislative schemes. The COVID-19 pandemic also affected the Record Suspension Program in 2020-21, causing temporary delays in processing applications.

• In 2020-21, the Board received 1,830 record suspension applications and accepted 1,411 applications for processing. The Board also received 7,307 pardon applications and accepted 6,032 pardon applications for processing. While there were lower application volumes in 2020-21, the acceptance rate increased to 81% (+4 percentage points) compared to 2019-20.

• In 2020-21, there was a 73.9% decline in the number of record suspension applications received (1,830) from the previous fiscal year (7,019). However, the number of pardon applications increased by 34.8% from the previous fiscal year.
• In 2020-21, the Board rendered 7,535 pardon decisions, a 53.3% increase from the previous fiscal year (4,916); 97% of pardons were granted/issued.
• In 2020-21, the Board made 1,508 record suspension decisions, a 72.5% decrease from the previous fiscal year (5,496); 93% of record suspensions were ordered.
• In 2020-21, the average processing time of a pardon application accepted for processing was seven (7) months where the final decision was to grant/issue a pardon (in comparison with eight (8) months in the previous fiscal year), and 18 months for those cases where the final decision was to deny a pardon (the same processing time as the previous fiscal year).
• In 2020-21, the average processing time of a record suspension application accepted for processing was 192 days for summary offences (a 16.4% increase from 165 in 2019-20), 437 days for indictable offences where the final decision was to order a record suspension (a 26.7% increase from 345 in 2019-20), and 514 days for those cases where the final decision was to refuse to order a record suspension (a 7.1% increase from 480 in 2019-20).

• Over the last 10 years, the cumulative pardon/record suspension revocation/cessation rate has remained relatively low, averaging 4.86%. Since the reintroduction of pardon operations in 2016-17, the increase in the rate has been smaller. In 2020-21, the rate increased 0.03 of a percentage point reaching 5.18%.

• Over the last 10 years, the cumulative pardon/record suspension revocation/cessation rate has remained relatively low, averaging 4.86%. Since the reintroduction of pardon operations in 2016-17, the increase in the rate has been smaller. In 2020-21, the rate increased 0.03 of a percentage point reaching 5.18%

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 2020-21, the Board received 26 clemency requests, 31 less when compared to the previous fiscal year.
• In the last five years (between 2016-17 and 2020-21), five clemency requests have been granted, one has been denied and 157 requests have been discontinued. The majority of the 157 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.
• As of March 31, 2021, 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.

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.