What is the exercise of clemency (Royal Prerogative of Mercy)?

The Royal Prerogative of Mercy (RPM) is a monarch's prerogative exercised in Canada by the Governor General or the Governor in Council.

Clemency is granted in exceptional circumstances in deserving cases involving federal offences, where no other remedy exists in law to reduce severe negative effects of criminal sanctions.

Clemency can be requested for numerous reasons, including employment, perceived inequity, medical conditions, immigration to Canada, compassion and financial hardship.

The Governor General or the Governor in Council grants clemency upon the recommendation of a Minister of the Crown. In most cases it is the Minister of Public Safety who makes the recommendation.

Origins

The Royal Prerogative of Mercy originates in the ancient power vested in the British monarch who had the absolute right to exercise mercy on any subject.

In Canada, similar powers of executive clemency have been given to the Governor General who, as the King's representative, may exercise the Royal Prerogative of Mercy. It is largely an unfettered discretionary power to apply exceptional remedies, under exceptional circumstances, to deserving cases.

Authority and Power

Governor General of Canada – Letters Patent

The power to exercise the Royal Prerogative of Mercy for federal offences is vested in the Governor General of Canada by virtue of the Letters Patent, constituting that office.

In practice, the Governor General will grant an act of clemency only after receiving the advice of the Minister of Public Safety, or that of at least one other minister.

The Governor General may grant two types of pardons, free pardons and conditional pardons, and may also grant respites from the execution of a sentence.  In addition, sentences, as well as fines, penalties or forfeitures "due and payable to the King in right of Canada", may be remitted by the Governor General.

Governor in Council – Criminal Code

Sections Criminal Code section 748 and Criminal Code section 748.1 of the Criminal Code authorize the Governor in Council to grant free or conditional pardons, and to order the remission of pecuniary penalties, fines and forfeitures imposed under an act of Parliament. The exercise of these powers is considered by the Federal Cabinet on the advice of the Minister of Public Safety, or that of at least one other minister.

In practice, requests for executive clemency are processed under the Letters Patent constituting the Office of the Governor General of Canada only when it is not legally possible to proceed under the Criminal Code. Therefore, with the exception of respites, relief from prohibitions and remissions of sentence, all positive recommendations are forwarded to the Federal Cabinet for a decision under the provisions of the Criminal Code, rather than to the Governor General of Canada.