How are requests for clemency reviewed?
Role of the Parole Board of Canada (PBC)
Under Section 110 of the Corrections and Conditional Release Act (CCRA), the PBC is authorized to investigate RPM requests for federal offences.
The role of the PBC in clemency cases is to review applications, conduct investigations (at the direction of the Minister of Public Safety), and make recommendations to the Minister regarding whether to grant the clemency request.
Principles used in the RPM decision process
The PBC uses general principles to provide for a fair and equitable process and to ensure that the RPM is granted only in very exceptional and truly deserving cases.
These principles include the following:
- That there must be clear evidence of substantial injustice or undue hardship that includes suffering of a mental, physical and/or financial nature;
- That it must be disproportionate to the nature and seriousness of the offence and the resulting consequences; and,
- That it must be more severe than for other individuals in a similar situation.
Each application is examined on its own merits, solely on the circumstances of the applicant, and may not be considered posthumously.
Principles Guiding the Exercise of Clemency
The Royal Prerogative of Mercy is exercised according to general principles which are meant to provide for a fair and equitable process, while ensuring that it is granted only in very exceptional and truly deserving cases.
In reviewing clemency applications, conducting investigations and making recommendations, the Parole Board of Canada (PBC) is guided by the following principles.
There Must Be Evidence of Substantial Injustice or Undue Hardship
Neither the Governor General nor the Governor in Council intervene on technical grounds. Therefore, in order for executive clemency to be invoked on the basis of an injustice, there must be clear evidence of a substantial injustice.
Similarly, undue hardship, which includes suffering of a mental, physical and/or financial nature, must be out of proportion to the nature and the seriousness of the offense and the resulting consequences, and must be more severe than for other individuals in similar situations.
In general terms, the notions of injustice and hardship imply that the suffering which is being experienced could not be foreseen at the time the sentence was imposed. In addition, there must be clear evidence that the injustice and/or the hardship exceed the normal consequences of a conviction and sentence.
The Exercise of the Royal Prerogative of Mercy is Concerned Solely with the Applicant
Each application is examined on its own merits, taking into consideration the circumstances of the individual applicant. Consideration will not be given to the hardship of anyone else who may be affected by the applicant's situation, nor will it be considered posthumously.
The Exercise of the Royal Prerogative of Mercy is not Intended to Circumvent Other Existing Legislation
In order for the Royal Prerogative of Mercy to be invoked, the applicant must have exhausted all other avenues available under the Criminal Code, or other pertinent legislation.
In addition, an act of executive clemency will not be considered where the difficulties experienced by an individual applicant result from the normal consequences of the application of the law.
Furthermore, the Royal Prerogative of Mercy is not a mechanism to review the merits of existing legislation, or those of the justice system in general.
The Independence of the Judiciary Shall Be Respected
The exercise of the Royal Prerogative of Mercy will not interfere with a court's decision when to do so would result in the mere substitution of the discretion of the Governor General, or the Governor in Council, for that of the courts. There must exist clear and strong evidence of an error in law, of excessive hardship and/or inequity, beyond that which could have been foreseen at the time of the conviction and sentencing.
The Royal Prerogative of Mercy Should Be Applied in Exceptional Circumstances Only
The Royal Prerogative of Mercy is intended only for rare cases in which consideration of justice, humanity and compassion override the normal administration of justice. It should be applied only where there exist no other remedies, where remedies are not lawfully available in a particular case, or where recourse to them would result in greater hardship.
The Exercise of the Royal Prerogative of Mercy, by its Very Nature, Should not Result in an Increased Penalty
When considering the merits of an individual case, the decision should not, in any way, increase the penalty for the applicant.
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