Pardon Services Fees Order: SOR/2021-234
Canada Gazette, Part II, Volume 155, Number 26
SOR/2021-234 November 30, 2021
FINANCIAL ADMINISTRATION ACT
The Minister of Public Safety and Emergency Preparedness, pursuant to Order in Council P.C. 1995-698 of April 26, 1995 footnote a and paragraph 19(1)(b) footnote b of the Financial Administration Act footnote c, makes the annexed Pardon Services Fees Order.
Ottawa, November 23, 2021
Marco E.L. Mendicino
Minister of Public Safety and Emergency Preparedness
Pardon Services Fees Order
Pardon Services Fees
Definition of pardon services
1 In this Order, pardon services includes
- (a) inquiries made to ascertain that the applicant for a pardon or a record suspension is eligible to make the application;
- (b) inquiries made, if necessary, to ascertain the conduct of the applicant since the date of their most recent conviction;
- (c) inquiries made, if necessary, with respect to any factors that the Parole Board of Canada may consider in determining whether granting a pardon or ordering a record suspension, as the case may be, would bring the administration of justice into disrepute;
- (d) the decision-making process of the Parole Board of Canada;
- (e) the granting and the issuing of, and the refusal to grant or issue, pardons, if applicable;
- (f) the ordering of, and the refusal to order, record suspensions, if applicable; and
- (g) notifications by the Parole Board of Canada and the Royal Canadian Mounted Police, regarding the Parole Board of Canada decision and the keeping of records separate and apart, to the applicant, to any organization that has a file or information concerning the conviction to which the application relates and to any organization that is consulted during the inquiries.
2 Subject to subsection 4(3.3) of the Criminal Records Act, any person referred to in subsection 3(1) of that Act who applies to the Parole Board of Canada for a pardon or record suspension under that Act must pay a fee of $50 to the order of the Receiver General for pardon services provided by the Parole Board of Canada.
3 The Pardon Services Fees Order footnote 1 is repealed.
Coming into Force
January 1, 2022
4 This Order comes into force on January 1, 2022, but if it is registered after that day, it comes into force on the day on which it is registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Order.)
This reduction of the service fee (i.e. application fee) will increase accessibility to pardons / record suspensions and better serve marginalized groups that are faced with pre-existing socioeconomic barriers.
Between 2010 and 2012, the Criminal Records Act (CRA) underwent significant changes that had the effect of making access to a record suspension more difficult. These included increasing the application fee; lengthening application wait periods; introducing new decision-making criteria and making individuals convicted of certain offences ineligible for a pardon (i.e. sexual offences against a child, more than three indictable offences resulting in a period of imprisonment of two years or more for each conviction). The terminology was also changed from “pardon” to “record suspension.”
The increase in the application fee in 2012 was to reflect full-cost recovery for the Parole Board of Canada (PBC) and was based on an anticipated annual volume of 15 000 applications. The current application fee is $657.77, which can be a significant barrier for those wanting to apply for a record suspension, particularly for marginalized groups facing pre-existing socioeconomic barriers.
The reduced fee will increase accessibility to record suspensions (pardons) for the majority of individuals with criminal records, while facilitating access to employment, housing, education and other necessities to support sustained reintegration. These measures would help alleviate pre-existing barriers for those disproportionately affected by the criminal justice system.
This proposal seeks to reduce the service fee from $657.77 to $50 under the Pardon Services Fees Order.
This fee reduction is intended to increase accessibility and better serve marginalized groups that are faced with pre-existing socioeconomic barriers. The $50 fee is considered a low materiality fee as it meets the section 2(1)(a) criteria of the Low Materiality Fees Regulations and, as a result, would be exempted from sections 3 to 18 of the Services Fees Act (service standard, annual Consumer Price Index adjustment, remission, consultation and parliamentary review, etc.).
Given that the application fee will be significantly reduced to $50, this is considered a low materiality fee. Therefore, this exempts the PBC from sections 3 through 18 of the Service Fees Act (service standard, annual Consumer Price Index adjustment, remission, consultation and parliamentary review, etc.). However, the Cabinet Directive on Regulation and the Statutory Instruments Act (SIA) have prepublication requirements, and the SIA requires that changes to the Pardon Services Fees Order (PSFO) be registered and published in the Canada Gazette, Part II.
As part of a 2016 PBC consultation on user fees, 96% of respondents cited the current fee as being a barrier to application. In 2019, Parliamentarians and witnesses underscored repeatedly throughout the Parliamentary study of Bill C-93, An Act to provide no-cost, expedited record suspensions for simple possession of cannabis, and Motion M-161, Record Suspension Program, that systemic barriers are preventing applicants, and would-be applicants, from accessing pardons. One of the main reasons for this is the current fee structure.
On June 10, 2021, the Minister of Public Safety announced the Government’s intention to reduce the fee to as low as $50.
Modern treaty obligations and Indigenous engagement and consultation
This proposal does not affect treaty obligations. Indigenous peoples may be disproportionately impacted positively by the proposal. The fee reduction will benefit all individuals seeking a pardon.
Order SI/95-59 authorizes the Minister of Public Safety and Emergency Preparedness to prescribe by order the fee to be paid by any user to whom any pardon services are provided by the Parole Board of Canada.
Benefits and costs
While several alternative fee amounts were analyzed, a $50 fee has been selected based on consultation results, the Government’s desire to enhance access to pardons by marginalized groups, Treasury Board guidelines, as well as the cost-benefit analysis conducted by an independent third party contractor in 2011. Record suspensions support the “common good,” as evidenced by this cost-benefit analysis done by Regulatory Impacts, Alternatives and Strategies (RIAS Inc.), which found that for every $1 spent in support of the program, $2.83 in benefits to society can be expected. The $50 fee ensures that access to pardons is not dependent on the applicant’s ability to pay the fee and ultimately, supports the reintegration of former offenders, which contributes to public safety. At the same time, the $50 fee is high enough that it reflects the principle of individual responsibility and would deter vexatious or incomplete applications. This was approved by Treasury Board as part of the PBC’s 2008 strategic review exercise to cover direct program costs. The proposed reduction in the application fee to a rate accessible to more applicants would therefore greatly enhance access to pardons.
The cost planning assumption used for the purpose of this proposal is that the reduction of the service fee will come into force on January 1, 2022.
With the reduction of the Pardon Services Fees Order to $50, it is estimated that the PBC will receive an increase in applications from the current average of just under 13 000 to 20 000 based on the reduction of the fee and the impacts of the March 19, 2020 Federal Court decision P.H. v. Canada (Attorney General), which resulted in all individuals who apply for a record suspension being considered based on the CRA eligibility and decision-making criteria in place on the date of commission of their offence. The implementation of this decision increased accessibility to pardons / record suspensions for some applicants by shortening application wait periods and rendering some applicants eligible. The PBC does not anticipate an additional surge in the first few years, as this estimate is already a significant increase over applications received in recent years, which have averaged just under 10 000 accepted applications in the past five years. The higher volume is considered a more reflective average of likely activity given the P.H. decision and the significantly reduced application fee, as the high cost of the current fee serves as a considerable barrier to applicants.
Based on the forecast, the following table outlines the total cost for the PBC’s program (i.e. the total reference level adjustment to the PBC’s budget required under the current planning assumption).
As outlined in the table above, the revenue generated from the proposed fee reduction (to $50) only covers a minimal portion (i.e. less than 10%) of the program’s total ongoing annual cost. In 2019, the PBC reassessed that a true full cost recovery model for the program would result in an application fee of over $800.
It is important to note that the reduction in the fee will be offset by an increase to the PBC’s reference level.
The PBC plans and monitors the cost of the program through its Integrated Operational Planning process, in-year monthly forecasting, and periodically (every couple of years) lean exercises to ensure the program’s operations are running at an optimal level with maximum efficiency.
Small business lens
Analysis under the small business lens concluded that the Order will not impact Canadian small business.
The one-for-one rule does not apply, as there is no impact on business.
Regulatory cooperation and alignment
This proposal is not related to a work plan or commitment under a formal regulatory cooperation forum (e.g. the Canada-US Regulatory Cooperation Council, the Canadian Free Trade Agreement Regulatory Reconciliation and Cooperation Table, the Canada-European Union (EU) Comprehensive Economic and Trade Agreement Regulatory Cooperation Forum).
Strategic environmental assessment
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.
Gender-based analysis plus
A fee reduction would positively affect low-income adults in all groups, who may have been unable to apply for a pardon due to the cost. As individuals from marginalized communities, particularly Black Canadians and Indigenous Peoples, are overrepresented in all stages of the criminal justice system (while also facing pre-existing socioeconomic barriers), one of the main goals of this proposal is to provide greater accessibility to the pardon / record suspension program through reducing the application fee. All potential applicants will benefit from this reduction.
In conjunction with the fee reduction, legislative reform has been tabled which outlines broad changes that will greatly enhance accessibility of the program and will also benefit these individuals. Program evaluation, to be led by Public Safety, would monitor whether marginalized groups are better able to access and successfully navigate the program, and to measure the overall social benefits of pardons. Public Safety is working in collaboration with the PBC to determine to what extent demographic information can be collected so that outcomes in the results strategy can be reported on through a gender-based analysis plus (GBA+) lens. Such demographic information that is being considered includes age, gender, race or ethnicity, employment status, area of residence, and other variables.
The PBC’s Record Suspension Decisions and Clemency Recommendations program does not collect GBA+ data at this time. The PBC is in the process of amending its Record Suspension Application Guide and forms; applicants will be offered the option of self-identifying as male, female, or another gender on their application form for the purposes of communicating with applicants. With this proposal, the PBC will work in collaboration with Public Safety to determine to what extent demographic information could be collected so that outcomes can be reported on in a way that considers marginalized groups and how the reforms impact them.
Implementation, compliance and enforcement, and service standards
The Pardon Services Fees Order comes into force on January 1, 2022, or on the date of registration.
It is important to note that there is no change to the way an individual will apply for a record suspension / pardon or how the fee is collected.
Record suspension applications are processed according to the following service standards by the PBC:
- Applications seeking a record suspension / pardon for an offence or offences tried summarily will be processed within 6 months of application acceptance.
- Applications seeking a record suspension / pardon for an offence or offences tried by indictment will be processed within 12 months of application acceptance.
- Applications in which the Board is proposing to refuse to order a record suspension or proposing to deny a pardon will require up to 24 months after application acceptance to complete. The reason for this is that under the Criminal Records Act, the Board must notify the applicant in writing of its proposal to refuse/deny, and advise them that they are entitled to make, or have made on their behalf, any representations to the Board that they believe relevant.
The term “application acceptance” means that an application has been accepted by the PBC as eligible and complete.
These service standards will remain the same, by way of policy, after the fee reduction to $50 per accepted application is implemented.
Clemency and Record Suspension Division
Parole Board of Canada
410 Laurier Avenue West