Vol. 145, No. 27 — July 2, 2011

ARCHIVED — Regulations Amending the Criminal Records Regulations

Statutory authority

Criminal Records Act

Sponsoring department

Department of Public Safety and Emergency Preparedness

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue and objectives

The Parole Board of Canada (the Board) is an independent administrative tribunal with authority under the Corrections and Conditional Release Act (CCRA) to make conditional release decisions such as day and full parole for offenders serving sentences of two years or more and offenders serving sentences of less than two years in provinces without their own parole boards. The Board is also responsible for making clemency recommendations and decisions to grant, deny and revoke pardons under the Criminal Records Act (CRA). A pardon is a formal attempt to remove the stigma of a criminal record for people who, having been convicted of an offence, have satisfied the sentence and remained crime free.

If a pardon is granted, the CRA restricts access to records under federal jurisdiction and removes disqualifications that would result from a conviction. The granting of a pardon under the CRA does not erase the conviction for the offence; it simply keeps the record separate and apart.

Bill C-23A, the Limiting of Pardons for Serious CrimeAct, received Royal Assent and came into force on June 29, 2010, amending the CRA to

• Increase the ineligibility period for a pardon for certain offences;
• Ensure that the Board has the authority to make inquiries with regard to pardon applications for all types of offences;
• Ensure that the Board has the discretion to consider additional factors in the decision-making process for pardons; and
• Establish the factors the Board may consider in determining whether the grant of a pardon would bring the administration of justice into disrepute.

The proposed Regulations amending the Criminal Records Regulations (CRR) would formally entrench the factors that the Board may consider that are in place in the Board’s Policy Manual and would give binding legal effect to the existing policy requirements. The objectives of the proposed Regulations would be to

• Provide greater transparency, clarity and certainty to the Canadian pardon system;
• Make the concept of bringing the administration of justice into disrepute more explicit to Board staff and members, to applicants and to other stakeholders (such as victims of crime, and to the Board’s governmental and non-governmental partners); and
• Provide the Board with a consistent, comprehensive and sound analytical framework and decision-making process that would result in quality pardon decisions.

Description and rationale

In September 2010, the Board implemented new provisions under the CRA respecting whether the granting of a pardon would bring the administration of justice into disrepute. Criteria were developed and added to the Board’s policy on pardons which would assist the Board in this assessment (see the “Guidelines for assessing whether the administration of justice would be brought into disrepute” section of the Board’s Policy Manual at www.pbc-clcc.gc.ca/infocntr/policym/polman-eng.shtml#a4263).

This proposal would formally entrench the factors that the Board may consider that are in place in the Board’s Policy Manual and would give binding legal effect to the existing policy requirements.

As per the Criminal Records Act, the onus is on the applicant to satisfy the Board that a pardon would provide him or her with a measurable benefit and sustain his or her rehabilitation as a law-abiding citizen. In determining whether the granting of a pardon would bring the administration of justice into disrepute, subsection 4.1(3) of the CRA authorizes the Board to consider the following factors:

• the nature, gravity and duration of the offence;
• the circumstances surrounding the commission of the offence;
• the criminal history of the applicant; and
• any other factor that is prescribed by regulation.

The proposed Regulations would amend the CRR by adding to the factors outlined in section 4.1(3) of the CRA that may be considered by the Board when determining whether the granting of a pardon would bring the administration of justice into disrepute, as follows:

• (a) whether the commission of the offence constituted a threat to the safety or security of Canada;
  
• (b) whether the offence constituted an offence against the administration of law and justice, within the meaning of Part IV of the Criminal Code, that was prosecuted by way of indictment;
  
• (c) whether the offence was a serious personal injury offence, as defined in section 752 of the Criminal Code;
  
• (d) whether the commission of the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor;
  
• (e) whether the offence was a service offence
  
  • (i) that is set out in sections 73 to 82 of the National Defence Act and for which the applicant received a sentence of imprisonment for life, or
    
  • (ii) that is set out in section 130 of the National Defence Act and that is also an offence referred to in any of paragraphs (a) to (d) and (f) to (h) of this section;
    
• (f) whether the commission of the offence caused serious physical or psychological injury to another person;
  
• (g) whether the offence constituted a fraudulent transaction relating to contracts and trade within the meaning of Part X of the Criminal Code, and any of the following apply:
  
  • (i) the value of the fraud committed exceeded one million dollars,
    
  • (ii) the offence adversely affected, or had the potential to adversely affect, the stability of the Canadian economy or financial system or any financial market in Canada or investor confidence in such a financial market,
    
  • (iii) the offence involved a large number of victims,
    
  • (iv) in committing the offence, the applicant took advantage of the high regard in which the applicant was held in the community;
    
• (h) whether the commission of the offence involved the use of cruelty or the harming of children or vulnerable persons;
  
• (i) whether the applicant has a criminal record outside Canada for an offence that, if it were committed in Canada, could have been an offence prosecuted by way of indictment in Canada; or
  
• (j) whether the applicant’s criminal record demonstrates a pattern of criminal activity within the meaning of subsections 462.37(2.04) and (2.05) of the Criminal Code or a pattern of increasing gravity of offence.

Each of these factors was implemented by Board policy in September 2010.

Bringing the administration of justice into disrepute

In accordance with the legislation, the Board must be satisfied that the granting of a pardon would not bring the administration of justice into disrepute. Disrepute suggests that the extraordinary nature of the offence(s), or the impact of the offence(s), is such that the granting of a pardon would bring the administration of justice into disrepute, which could bring about a marked decrease in public confidence in both the Board and the justice system. The proposed Regulations are designed to assist Board member decision making with respect to the granting or denying of pardons in such exceptional cases.

The Board will also apply a test of reasonableness, when determining whether granting a pardon would bring the administration of justice into disrepute. Recent legislative amendments to the CRA have led to process changes within the pardon program. As before, all sentences, including both probation and payment of fines, must be completed and the required time elapsed before an application will be considered by the Board under the CRA.

Under the amended legislation, certain timeframes drive the pardon eligibility of applicants:

• For a conviction as a result of a summary offence, other than those listed in Schedule 1 of the CRA, an individual must wait 3 years before applying;
• For a conviction of a sexual offence listed in Schedule 1 tried summarily, the waiting period is 5 years;
• For a conviction as a result of an indictable offence, other than those listed in Schedule 1 of the CRA, an individual must wait 5 years (no change from previously);
• For a conviction as a result of an indictable sexual offence listed in Schedule 1, the waiting period is 10 years;
• For a conviction for a serious personal injury offence (section 752 of the Criminal Code), including manslaughter (sentenced to 2 or more years), the waiting period is 10 years; and
• For a conviction under the National Defence Act, an offender must wait 3 years, 5 years or 10 years according to the specific military offence period.

The Department of National Defence, through the Office of the Judge Advocate General, provided input in developing the provisions specifically relating to offences under the National Defence Act.

Applicants subject to the 5- and 10-year waiting periods must also demonstrate to the Board’s satisfaction that a pardon would be of measurable benefit to them and that it would help sustain their rehabilitation as a law-abiding citizen. The Limiting Pardons for Serious Crimes Act also added the criterion for summary offences requiring that, during the waiting period to apply, the applicant must have been of good conduct.

Benefits and costs

These Regulations do not change existing practices by the Board, and therefore are not expected to have any additional cost impact. The implementation of the Regulations will, however, have the benefit of formally entrenching the criteria that are in place in the Board’s Policy Manual and would give legal force to the existing policy requirements.

This regulatory proposal is not expected to have any impact on regulatory coordination or cooperation with other federal departments. The Royal Canadian Mounted Police is involved in providing the Board with police information with regards to applicants’ criminal activity during the period under review, and this will not change under the proposed Regulations.

Consultation

The Department of National Defence, through the Office of the Judge Advocate General, provided input in developing the Regulations and is satisfied with the end result including the few provisions specifically relating to offences under the National Defence Act.

Consultation with various non-governmental organizations took place, including the Canadian Association of Elizabeth Fry Societies, the John Howard Society of Canada, the Canadian Bar Association, and organizations working with Aboriginal people, youth and others. Discussions at the consultation focused largely on the concept of bringing the administration of justice into disrepute. Many of the organizations indicated that the concept is too broad, and that the list of additional factors and definitions under the proposed Regulations are not precise enough. This could potentially result, in their view, in virtually all pardon applications being denied.

Comments were also received that the proposed factors weigh heavily toward negative considerations rather than striking a balance between positive and negative factors. An additional concern was put forward concerning the potentially disproportionate impact on Aboriginal people. In general, stakeholders suggested that the concept of bringing the administration of justice into disrepute must be a crucial component to the Board Member training.

In addition to the consultation with key external stakeholders, an online consultation with the general public was hosted by Public Safety Canada. No substantive feedback was received.

Implementation, enforcement and service standards

The proposed Regulations would come into force on the day they are registered. The Board will provide information regarding the implementation of the Regulations directly to its stakeholders, will update its external Web site with an information notice and will provide an update to the pardons fact sheet with new questions and answers.

Contact

Mary E. Campbell
Director General
Public Safety Canada
Corrections Directorate
340 Laurier Avenue W
Ottawa, Ontario
K1A 0P8
Telephone: 613-991-2952
Fax: 613-990-8295
Email: Reg.consultation@ps-sp.gc.ca

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to paragraph 9.1(c.1) (see footnote a) of the Criminal Records Act (see footnote b), proposes to make the annexed Regulations Amending the Criminal Records Regulations.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Mary E. Campbell, Director General, Corrections and Criminal Justice Directorate, Public Safety Canada, 340 Laurier Avenue West, Ottawa, Ontario K1A 0P8 (tel.: 613-991-2952; fax: 613-990-8295; email: Reg.Consultation@ps-sp.gc.ca).

Ottawa, June 23, 2011

JURICA ČAPKUN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE CRIMINAL RECORDS REGULATIONS

AMENDMENT

1. The Criminal Records Regulations (see footnote 1) are amended by adding the following after section 1:

DETERMINATION RELATING TO THE GRANTING OF A PARDON

1.1. For the purposes of paragraph 4.1(3)(d) of the Act, in determining whether granting a pardon to an applicant would bring the administration of justice into disrepute, the Board may consider whether

• (a) the commission of the offence constituted a threat to the safety or security of Canada;
  
• (b) the offence constituted an offence against the administration of law and justice, within the meaning of Part IV of the Criminal Code, that was prosecuted by way of indictment;
  
• (c) the offence was a serious personal injury offence, as defined in section 752 of the Criminal Code;
  
• (d) the commission of the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor;
  
• (e) the offence was a service offence
  
  • (i) that is set out in sections 73 to 82 of the National Defence Act and for which the applicant received a sentence of imprisonment for life; or
    
  • (ii) that is set out in section 130 of the National Defence Act and that is also an offence referred to in any of paragraphs (a) to (d) and (f) to (h) of this section;
    
• (f) the commission of the offence caused serious physical or psychological injury to another person;
  
• (g) the offence constituted a fraudulent transaction relating to contracts and trade within the meaning of Part X of the Criminal Code, and any of the following apply:
  
  • (i) the value of the fraud committed exceeded one million dollars,
    
  • (ii) the offence adversely affected, or had the potential to adversely affect, the stability of the Canadian economy or financial system or any financial market in Canada or investor confidence in such a financial market,
    
  • (iii) the offence involved a large number of victims,
    
  • (iv) in committing the offence, the applicant took advantage of the high regard in which the applicant was held in the community.
    
• (h) the commission of the offence involved the use of cruelty or the harming of children or vulnerable persons;
  
• (i) the applicant has a criminal record outside Canada for an offence that, if it were committed in Canada, could have been an offence prosecuted by way of indictment in Canada; or
  
• (j) the applicant’s criminal record demonstrates a pattern of criminal activity within the meaning of subsections 462.37(2.04) and (2.05) of the Criminal Code or a pattern of increasing gravity of offence.
  

COMING INTO FORCE

2. These Regulations come into force on the day on which they are registered.

[27-1-o]

Footnote a
S.C. 2010, c. 5, s. 7

Footnote b
R.S., c. C-47

Footnote 1
SOR/2000-303

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