What are the different types of clemency?

Specific Remedies and Criteria

In addition to the general principles which guide the Parole Board of Canada (PBC) in assessing the merits of clemency applications, each form of relief is assessed against some specific criteria.

Definition

A free pardon is a formal recognition that a person was erroneously convicted of an offence. Any consequence resulting from the conviction, such as fines, prohibitions or forfeitures will be cancelled upon the grant of a free pardon. In addition, any record of the conviction will be erased from the police and court records, and from any other official data banks.

Criteria

The sole criterion upon which an application for a free pardon may be entertained is that of the innocence of the convicted person.

In order for a free pardon to be considered, the applicant must have exhausted all appeal mechanisms available under the Criminal Code, or other pertinent legislation. In addition, the applicant must provide new evidence, which was not available to the courts at the time the conviction was registered, or at the time the appeal was processed, to clearly establish innocence.

Authority

Governor in Council and Governor General.

Definition

A conditional pardon - prior to eligibility under the CCRA is the release of an inmate from incarceration into the community, under supervision and subject to conditions, until the expiration of the sentence imposed by the court.

Criteria

Inherent to any sentence of incarceration is the notion of hardship which is meant to act as a punishment for the convicted offender, and as a deterrent for potential offenders. The limitations to one's freedom and to one's rights to participate fully as a member of the community, the distance and often the isolation from one's family and friends, are the direct consequences of a sentence of imprisonment and of the crime which resulted in the imposition of such a penalty.

Correctional Service Canada (CSC) is responsible for the care and custody of inmates as stipulated in section 5(a) of the Corrections and Conditional Release ActCCRA and that responsibility includes caring for the medical problems of all offenders, irrespective of their seriousness. Whereas illness or deteriorating health may cause hardship, it does not, in itself, constitute a sufficient reason to grant a conditional pardon in advance of eligibility for conditional release under the CCRA. For this exceptional measure to be invoked, serious medical problems would be considered as one of many factors.

In order for a conditional pardon to be granted prior to eligibility under the CCRA, the inmate must be ineligible for any other form of release under the CCRA, and the release should not, in any manner, put the community at risk of the offender's re-offending. In addition, there must exist substantial evidence of excessive inequity, substantial injustice or undue hardship which would be out of proportion to the nature and seriousness of the offense and the resulting consequences, and more severe than for other individuals in similar situations.

Authority

Governor in Council and Governor General.

Definition

A conditional pardon in advance of eligibility under the CRA has the same meaning and effect as a pardon granted under the provisions of the CRA.

Criteria

Possessing a criminal record is the normal consequence of having been found guilty or convicted of a crime. A criminal record may limit access to careers, to employment, to travel and, in itself, may result in a certain amount of hardship.

In order for a conditional pardon to be granted in advance of the eligibility under the CRA, the applicant must be currently ineligible for a pardon under the CRA. In addition, such a pardon may be considered only when there is evidence of good conduct, within the meaning of the CRA, and consistent with the policies of the Parole Board of Canada in these matters. Finally, there must be substantial evidence of undue hardship, out of proportion to the nature of the offence and more severe than for other individuals in similar situations.

Authority

Governor in Council and Governor General.

Definition

A remission of sentence amounts to the erasing of all, or part of, a sentence imposed by the court.

Criteria

Consistent with the principle that the independence of the judiciary must be respected, a remission of sentence may be considered only where there exists evidence of: an error in law; a substantial inequity, such as a change in legislation which had unintended and unanticipated consequences for a person convicted and sentenced; or undue hardship which would be out of proportion to the nature and seriousness of the offence and more severe than for other individuals in similar situations.

Authority

Governor General

Definition

A remission of a fine, a forfeiture, an estreated bail or a pecuniary penalty amounts to the erasing of all, or part of, the penalty imposed by the court.

Criteria

In order for such penalties to be remitted, there must exist substantial evidence of undue hardship, due to circumstances or factors unknown to the court that imposed the sanction, or which occurred subsequent to the imposition of the sanction by the court. In addition, consideration will be given to whether the grant of a remission would result in hardship to another person.

Authority

Governor in Council and Governor General.

Definition

Respite is the interruption of the execution of a sentence.

Criteria

In order for a respite in the execution of the sentence to be considered, there must be substantial evidence that failure to grant such an act of clemency would result in undue hardship, or create an inequity. In addition, the granting of a respite should not place the community at risk of the offender's re-offending.

Authority

Governor General

Definition

A relief from a prohibition is the removal or the alteration of a prohibition, imposed by the court as a result of a conviction.

Criteria

A prohibition may be removed or altered where there is substantial evidence that the prohibition is causing undue hardship to the applicant and that altering or removing the prohibition would not place that community at risk of the offender's re-offending.

Authority

Governor General

Note

Pursuant to CCRA section 109 of the Corrections and Conditional Release Act (CCRA), the Parole Board of Canada may, under some circumstances, cancel or vary a portion of a driving prohibition order made under Criminal Code section 259(1) or Criminal Code section 259(2) of the Criminal Code.

Consistent with the principle that the Royal Prerogative of Mercy is not intended to circumvent any other existing legislation, such recourse may only be invoked for driving prohibitions where the applicant is otherwise ineligible under the provisions of the Corrections and Conditional Release Act.

All remedies described above are subject to cancellation if the application was granted on the basis of information which is subsequently found to have been fraudulent.

All remedies, with the exception of free pardons, may be cancelled if any condition under which they are granted is subsequently breached.

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