Frequently Asked Questions - Clemency
What is the Royal Prerogative of Mercy?
The Royal Prerogative of Mercy (RPM) is a discretionary power based on the ancient right of the British monarch to grant mercy. In Canada it is exercised by the Governor General or the Governor in Council (i.e. Federal Cabinet). It relates to forms of clemency, granted in exceptional circumstances in deserving cases involving federal offences.
The Governor General or the Governor in Council grants clemency upon recommendation from the Minister of Public Safety Canada or at least one other minister.
What types of clemency can be granted by the Governor in Council?
The Criminal Code (s. 748 and 748.1) authorizes the Governor in Council to grant the following types of clemency:
Free Pardon: based on innocence, it is a recognition that the conviction was in error and erases the consequences and records of the conviction.
- Conditional Pardon:
- criminal record is kept separate and apart from other criminal records prior to pardon eligibility under the Criminal Records Act (five years for a summary offence, ten years for an indictable offence); or
- parole in advance of eligibility date under the Corrections and Conditional Release Act for offenders serving life and indeterminate sentences who are ineligible for parole by exception.
- Remission of fine, forfeiture and pecuniary penalty: erases all, or part of the monetary penalty that was imposed.
Can the Governor General also authorize these types of clemency?
The Governor General can grant free and conditional pardons, and remission of fine, forfeiture and pecuniary penalty. However, the Governor General's authority to grant clemency is normally used only when it is not possible to proceed under the Criminal Code (as discussed in Question 2 above).
What other types of clemency can only be granted by the Governor General?
The Governor General can grant the following:
- Remission of sentence: all or part of the sentence erased.
- Respite: interruption in the execution of the sentence.
- Relief from prohibition: alteration or removal of prohibition (e.g. prohibited from driving, prohibited from possessing firearms).
Can the Parole Board of Canada (PBC) cancel or vary the unexpired portion of a prohibition order?
Yes. Under the Corrections and Conditional Release Act (s. 109), the Board may, on written application, cancel or vary the unexpired portion of a prohibition order made under section 259 of the Criminal Code after a period of:
- ten years after the commencement of the order, in the case of a prohibition for life; or
- five years after the commencement of the order, in the case of a prohibition for more than five years but less than life.
Alternatively, the Governor General may grant relief from the prohibition if the time period required above has not been completed.
What is the role of the PBC under the RPM?
The role of the Parole Board of Canada is to review clemency applications, to conduct investigations at the direction of the Minister of Public Safety Canada and to make recommendations to the Minister regarding whether to grant the clemency request.
What are the principles guiding the PBC in reviewing clemency applications?
The Parole Board of Canada uses six guiding principles when reviewing applications under the RPM. These principles provide a fair and equitable process, and ensure that the RPM is granted only in very exceptional and truly deserving cases:
- There must be clear and strong evidence of injustice or undue hardship (e.g. suffering of a mental, physical and/or financial nature that is out of proportion to the nature and the seriousness of the offence and more severe than for other individuals in similar situations).
- Each application is strictly examined on its own merits. Consideration is not given to the hardship of anyone else, and it is not considered posthumously.
- The applicant must have exhausted all other avenues available under the Criminal Code, or other pertinent legislation (i.e. appeals, termination of probation, miscarriage of justice).
- The independence of the judiciary shall be respected in that there must be stronger and more specific grounds to recommend action that would interfere with a court's decision.
- It is intended only for rare cases in which considerations of justice, humanity and compassion override the normal administration of justice.
- The decision should not, in any way, increase the penalty for the applicant.
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