The best way to clear a criminal record is to apply for a Record Suspension from the Parole Board of Canada. However, there are some rarely used processes that allow the Queen’s representative (the Governor General) or the federal cabinet to pardon people. The Prime Minister can recommend pardons, but unlike the President of the United States, cannot simply use the power of his office to pardon someone.
Royal Prerogative of Mercy
This is an ancient power wielded by the British monarchy. In Canada, it allows the governor general to issue a pardon. As the governor general’s power is mostly symbolic, the pardon would usually be on the recommendation of the public safety minister. However, another minister could make the recommendation.
Initially, a person would make an application to the Parole Board of Canada. If the application had merit, the board would forward it to the federal cabinet where it would be considered by the prime minister and other ministers.
What are the chances of receiving a royal pardon?
To decide if this application is an option, it’s helpful to look at the statistics. In the 2016/2017 reporting year, 8,340 Record Suspensions were granted and 439 denied. Twenty-nine per cent of applications were not accepted for filing. However, this could be due to avoidable errors such as not submitting all the of the supporting information, not submitting the fee and not being eligible in the first place. (AllCleared guarantees that your application will be accepted for filing.)
The Parole Board hasn’t updated its website statistics on clemency applications recently. However, between 2011 and 2015, 14 requests were granted, four were denied and 121 were discontinued.
A successful applicant can have their conviction revoked (a full pardon), or they can simply have the record sealed similar to a Record Suspension.
If you are eligible or will be eligible eventually, you would be most likely advised to go through the Record Suspension process and your application for clemency would be discontinued. If you are permanently ineligible for a Record Suspension contact a lawyer or legal aid about your situation as clemency is your only option.
Why would the federal cabinet pardon someone?
There is already a process in place for those convicted of a criminal offence to seal their records – apply for a Record Suspension through the Parole Board of Canada. As well, the government does not want to be seen as second-guessing the courts. As a result, the government can only grant a pardon in extreme cases involving:
- An obvious injustice
- Undue hardship
What is considered an injustice?
An injustice may arise if a law is fundamentally unjust. For example, Prime Minister Justin Trudeau says he is going to issue pardons for people convicted of having homosexual relations, which is, of course, no longer against the law. He may also consider pardoning minor marijuana possession charges in the future.
In the past, the Conservative government pardoned farmers convicted under Wheat Board monopoly laws. To some critics, the prime minister was seen as politicizing the process.
Wrongful conviction usually won’t qualify because there are appeal processes available in the court. The person must have exhausted all of their legal options.
Everyone convicted of a criminal offence will encounter some hardship. For a person with a criminal record, there may be limitations in the types of jobs or other opportunities one can obtain. For the hardship to be “undue”, it needs to be more than this.
For example, a person with a criminal record could face deportation. If there is some risk that the person will be persecuted or put in danger of physical abuse or even death if they return to the country of their citizenship, this may qualify as an undue hardship.
On the other hand, if you struggle to find a job, this will be considered the normal hardship of having a criminal record, and your application will likely not proceed very far.
AllCleared does not assist with the Royal Prerogative of Mercy. For that, you are advised to contact a lawyer. However, we can help you with your Record Suspension application. If you would like to find out if you are qualified for a Record Suspension, contact AllCleared for a free consultation at 1-866-972-7366.