User Fees and Service Standards
For the Processing of Pardon Applications

Discussion Paper

February 2011

Table of Contents

• Purpose
• Legislated Responsibilities
• Partnership with the RCMP
• The Purpose of a Pardon
• Legislative Amendments (Bill C-23A)
  • Types of Offences
    • Summary Offences (other than those listed in schedule 1 of the CRA)
    • Sexual Offences Tried Summarily
    • Indictable Offences
• Consequences of Legislative Change
• Pardon Program
  • Pardon Process
    • Revocations
  • Service Description
  • Service Pledge
  • Service Standards
• Pardon User Fee Background
• Pardon Costs
  • Pre-Bill C-23A
  • Post-Bill C-23A
• User Fee Proposal
• Complaint Mechanism

Purpose

The Government of Canada is seeking to implement a new fee system that would require users to assume the cost for the Parole Board of Canada (PBC or the "Board") to process a pardon application[1]. This model will also ensure sustainability for the PBC pardons program, and secure the resources needed to efficiently and effectively deliver pardon services to users under the revised Criminal Records Act (CRA).

This paper outlines the issues that were considered in determining the proposed fee and related service standards. It was developed to support the PBC's consultations with federal partners, stakeholders and interested members of the public as required under the User Fees Act (UFA).

Legislated Responsibilities

The Parole Board of Canada is an independent administrative tribunal within the Public Safety portfolio, responsible for making conditional release and pardon decisions, and for making clemency recommendations to the Government under the Royal Prerogative of Mercy (RPM). The PBC's primary objective is to contribute to the long-term protection of society.

Legislation governing the PBC includes the Corrections and Conditional Release Act (CCRA), the Criminal Records Act (CRA) and the Criminal Code. The CCRA empowers the Board to make conditional release decisions for federal offenders and provincial/territorial offenders in the provinces and territories without their own parole boards.

The CRA authorizes the Board to grant, deny and revoke pardons for convictions under federal acts or regulations. The Governor-in-Council or the Governor General approves the use of the Royal Prerogative of Mercy (RPM), following investigations by the Board and recommendations by the Minister of Public Safety.

Partnership with the RCMP

The RCMP is responsible for managing information in the Canadian Police Information Centre (CPIC) and providing the PBC with information on pardon applicants' criminal histories. When a pardon is granted, the RCMP ensures the pardoned record is kept separate from other criminal records, and notifies the arresting police service that a pardon was granted. When a pardon is revoked, the RCMP takes the necessary steps to reactivate the record.

The Purpose of a Pardon

A pardon is a formal attempt to remove the stigma of a criminal record for individuals who satisfy the requirements of the Criminal Records Act. The CRA restricts access to records under federal jurisdiction and removes disqualifications that would result from a conviction.

The granting of a pardon does not erase the conviction for the offence; it simply keeps the record separate and apart.

Legislative Amendments (Bill C-23A)

Recent legislative amendments to the CRA have led to process changes within the pardon program.

On June 29, 2010, Bill C-23A came into force, amending the CRA to:

• increase the ineligibility period for a pardon for certain offences;
• provide the Board with the authority to make inquiries with regard to pardon applications for all types of offences;
• provide the Board with the discretion to consider additional factors in the decision-making process for pardons;
• establish factors the Board may consider in determining whether the grant of the pardon would bring the administration of justice into disrepute; and,
• implement the assessment of good conduct in all cases.

As before, all sentences, including probation and payment of any fine, must be completed and the required time elapsed before an application will be considered by the Board.

Under the amended legislation, the eligibility of applicants is subject to the following time frames:

• 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 (no change from previously);
• 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; and,
• For a conviction for a serious personal injury offence (s 752 of Criminal Code), including manslaughter (sentenced to two or more years), the waiting period is 10 years.

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 sustain their rehabilitation as a law abiding citizen. In addition, the Board must be satisfied that the granting of a pardon would not bring the administration of justice into disrepute.

In determining whether the granting of a pardon would bring the administration of justice into disrepute, the Board may consider the following factors:

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

Types of Offences

The following provides a brief description of the types of offences affected by Bill C-23A.

Summary Offences (other than those listed in schedule 1 of the CRA)

Formerly, the CRA authorized the Board to issue a pardon for a summary offence administratively if all criteria were met (i.e., a 3-year waiting period post-sentence, during which no new offences were committed). Since June 29, 2010, the Board votes to grant a pardon when it is satisfied that all criteria are met (i.e., 3-year waiting period post-sentence and an investigation to determine good conduct).

Sexual Offences Tried Summarily

Under the former legislation, the Board could issue a pardon for a summary offence administratively if all criteria were met (i.e., 3-year waiting period post-sentence, during which no new offences were committed). Since June 29, 2010, two Board members now vote to grant a pardon when they are satisfied that all the criteria are met (i.e., 5-year waiting period post-sentence and the additional criteria[2] as described above if the offence is listed in schedule 1.)

Indictable Offences

Formerly, the CRA authorized the Board to grant a pardon for an indictable offence if certain criteria were met (i.e., 5-year waiting period post-sentence and an investigation to determine good conduct). Since June 29, 2010, the Board votes to grant a pardon when it is satisfied that all criteria are met (i.e., 10-year waiting period post-sentence for indictable sexual offences listed in schedule 1, and s.752 personal injury offence, including manslaughter, for which a sentence of two years or more was imposed; or a 5-year waiting period post-sentence for other indictable offences), as well as meeting the criteria as described above.

Consequences of Legislative Change

Pardon program operations have changed significantly as a result of legislative modifications. Board staff require more time to obtain additional information from applicants, research cases, wait for responses to queries from criminal justice participants, build files, and make recommendations. In addition, Board members require more time to review cases and to make decisions based on the merits of each case.

Pardon Program

Pardon Process

The steps in the pardon process are as follows:

• screening - determination that the application is complete, the sentence satisfied, the relevant waiting period completed and the fee paid.
• fee processing - recording of receipt of fees and deposit in the Consolidated Revenue Fund.
• investigation - confirmation of crime-free periods, good conduct in collaboration with criminal justice participants and the additional criteria is met for the relevant cases.
• decision-making - by Board members to grant or deny pardons.
• notification - in cases where pardons are granted, - notification of recipients, RCMP, other federal agencies holding criminal records, other police services, and courts.
• revocation - where necessary, action to notify pardon recipients of PBC's proposal to revoke a pardon. If the pardon is revoked, notifications of the recipient as well as notification of agencies previously notified regarding the revocation of the pardon.

Revocations

A pardon ceases if there is a conviction (by indictment), a conviction of an offence under the Criminal Code (except for ss 255(1)) or other specific statutes or a serious service offence is registered.

The CRA also gives the Board the authority to revoke a pardon if:

• the person who received the pardon is subsequently convicted of an offence punishable on summary conviction;
• evidence establishes to the satisfaction of the Board that the recipient of the pardon is no longer of good conduct; or,
• evidence establishes to the satisfaction of the Board that the pardon recipient knowingly made a false statement or knowingly concealed some information in relation to the application.

If the Board is considering a revocation, it must inform the pardon recipient that they are entitled to make representations to the Board. If the Board revokes a pardon, the recipient is notified as well as agencies previously notified regarding the individual's pardon.

Service Description

The Board serves the public by responding to their requests for information about the pardon program and the Parole Board of Canada. The Board also provides a service to the community through quality pardon decisions that contribute to public safety, rehabilitation and long-term community reintegration. As well, the Board serves pardon applicants through the processing of their applications.

For the purposes of the user fee proposal, pardon services include:

• screening of pardon applications to ensure that they are complete, that applicants are eligible to apply and that the user fee is included;
• administration of the user fee (e.g., deposits in the Consolidated Revenue Fund);
• inquiries made by the PBC, with the RCMP, local police and courts to ascertain the conduct of the person applying for a pardon;
• inquiries made by the PBC with justice system participants to measure factors that help Board members render decisions on whether the granting of a pardon would bring the administration of justice into disrepute;
• work by PBC staff to prepare information for all pardon decision-making by Board members;
• decision-making by members of the Board; and,
• notifications by the PBC and the RCMP regarding the Board's decision to the person applying for a pardon, to any organization that has a file or information concerning the conviction for which a pardon is applied, and to any organization that is consulted during any inquiry.

Service Pledge

Through pardon services, the public, the community and pardon applicants should expect to receive timely and relevant information and assistance in the official language of their choice, provided in an open manner, consistent with the law and the principle of value for money. Pardon applicants should expect to have their applications processed in this manner, although quality service does not mean that all applications will result in a pardon.

The Parole Board of Canada is committed to providing quality pardon services in a fiscally prudent manner. Provision of services will be in accordance with the following principles:

• dependability and timeliness - the PBC will respond promptly and in the official language of choice to those who seek information about pardons and the pardon process. Pardon applications will be processed in accordance with the law and the service standards established for the pardon program.
• fairness and respect - the PBC will treat all those who apply for a pardon courteously and fairly, recognizing their unique needs and circumstances. In making pardon decisions, the PBC will act in accordance with the Criminal Records Act, respecting the rights and privacy of applicants and concerns for public safety.
• openness and accountability - the PBC will explain the services that are provided to pardon applicants and their costs to taxpayers. Information will be provided on the legislative provisions governing pardon decision-making, the results of pardon decisions vis-à-vis public safety and PBC effectiveness in terms of the service standards established for processing pardon applications. Detailed information will also be provided on the costs for processing pardon applications and revenues earned from pardon user fees.
• commitment to improvement - the PBC will consult periodically with stakeholders and partners to identify elements of the pardon program that are working effectively and those elements that require improvement.

Service Standards

Upon implementation of the new fee and consistent with its service pledge, the Board has established the following service standards for the pardon program:

• pardon applications involving summary convictions, including sexual offences not listed in Schedule 1, will be processed within six months of application acceptance;
• pardon applications involving an indictable offence (5 year eligibility) will be processed within six months of application acceptance;
• pardon applications involving summary sexual offences (schedule 1) and personal injury offences (s 752 Criminal Code) within 12 months of application acceptance; and,
• pardon applications in which the Board is proposing to deny a pardon will require up to 24 months after application acceptance to complete.

The aforementioned standards are applied and the pardon user fee levied when it is determined that the application is complete and the applicant is eligible.

Pardon User Fee Background

In 1994-95, the Treasury Board approved the introduction of a user fee for processing of pardon applications. A user fee of $50 was introduced to reduce the overall costs to government by having citizens who use government services pay a portion for those services. The fee represented a portion of the costs incurred by the PBC and RCMP for this work. The Board received $35 and the RCMP received $15.

In the 16 years since the introduction of the user fee, the cost to process pardon applications rose substantially, however the $50 fee had not changed. For the past few years, the Board had been working towards increasing the user fee to make the pardons program sustainable. With the coming into force of Bill C-23A on June 29, 2010, the user fee has become even further out of alignment with the cost the Board incurs to process a pardon application.

The Minister of Public Safety proposed to increase the pardon user fee to $150, which was adopted by Parliament and came into effect on December 29, 2010. The current user fee of $150, from which the Board receives $135, covers the Board's direct costs for work to process a pardon application under the pre-C-23A Criminal Records Act (CRA).

The Government is now seeking to implement an increased fee which will respond to workload increases, and costs required to process a pardon application following the recent amendments to the Criminal Records Act. This will increase the pardon user fee from $150 to $631[3].

Pre-Bill C-23A

The user fee for pardons was first introduced in 1994-95. At that time, the fee was set at $50 ($35 for the Board) and covered approximately 50% of the Board's direct costs to process a pardon application. Since then, the cost to process a pardon application has increased considerably. The Board carried out a detailed costing exercise using costing methodology developed by the Comptroller General of Canada. Based on the results of the costing exercise, it was estimated that it cost the Board $231 to process a pardon application before Bill C-23A was introduced. Direct costs were calculated by identifying work activities directly linked to the processing of a pardon application and identifying the level of effort (costs) required to complete this work. The direct cost was $135.

Direct Costs for Processing a Pardon Application

Work Element	Unit Cost ($)
Pardon Division: screening applications, issuing pardons (summary convictions) preparing cases for Board member decision-making (hybrid, indictable offences), notifying applicants of pardon decisions.	120
Appeal Division: Board member decision-making (hybrid, indictable offences).	3
Records Management: handling applications and related correspondence, posting letters, managing files.	10
Financial Services: Depositing user fees in Consolidated Revenue Fund	2
Total:	135

Indirect costs for processing a pardon application included elements such as: human resource services; communications and public information services; policy development and advice; accommodation; and performance measurement.

Post-Bill C-23A

With the coming into force of Bill C-23A on June 29, 2010, it was necessary to re-examine the costs to process a pardon application. Since there may be a change in the number of applications received and accepted under the new legislation, a number of scenarios were investigated with regard to the potential number of applications received and acceptance rates.

Under the former legislation, the Board estimated receiving approximately 37,000 applications a year, of which approximately 75%, or 27,750 applications, were accepted for processing

Based on an extensive costing exercise, it is estimated that the cost for the Board to process a pardon application under the new legislation is $631[4], and is based on the Board receiving 25,000 applications, with an estimated acceptance rate of 60% for processing. The increased cost is due to:

• the significant additional time required by Board members to review and write a decision for every pardon;
• additional time required for screening and investigations by pardon staff;
• the need for additional qualifications for employees;
• the expectation of higher rates of incomplete applications received;
• increased training and communications requirements; and,
• an increase in clemency requests.

The current CRA includes more complex and stringent legislative requirements, and requires greater discretion by decision-makers on sensitive issues. These factors have led to:

• increased workload / processing costs;
• decreased volumes[5]; and,
• higher rates of incomplete applications received.

Higher costs, lower volumes and more incomplete applications will significantly increase the unit cost per accepted application.

User Fee Proposal

Following a detailed cost analysis, the price for processing a pardon application is proposed at $631 - with $616 to the Board and $15 to the RCMP. This will respond to workload increases, and costs required to process a pardon application following the recent amendments to the Criminal Records Act[6]. This fee will provide the Board with the capacity to manage heavy and growing workloads, and is intended to result in improved services to pardon applicants.

Complaint Mechanism

According to the User Fees Act (UFA), the Board is required to notify clients and other regulating authorities with similar clientele of the proposed user fee. A consultation on the fee will begin on February 10th, and end on February 27th, 2011. . Those wishing to participate in the online consultation can do so by visiting the Board's website at: www.pbc-cclc.gc.ca.

Section 4.1 of the UFA outlines the complaint process. Complaints about the proposed user fee can be submitted until the end of the consultation period. If a complaint is received, the Board must try to resolve the complaint and provide the complainant notice in writing of proposed measures for resolution of the complaint.

If a complaint is not resolved to a complainant's satisfaction within 30 days after the end of the consultation period, the complainant may request in writing that the complaint be referred to an Independent Advisory Panel.

The Independent Advisory Panel will prepare a report with its findings and recommendations for resolving the dispute. The Board will consider the Panel's recommendations and include the Panel's report and the Board's response in the tabling package.

A complainant who lodges a complaint that is frivolous or vexatious may bear the costs of the proceedings, including the cost of the fee and expenses of panel members.

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[1] This cost refers to all recoverable costs to process pardon applications. Non-recoverable costs,which are already included in departmental appropriation, are not included in the proposed user fee

[2] Criteria include; measurable benefit, satisfying that the granting of a pardon would not bring the administration of justice into disrepute and factors of consideration (i.e., nature, gravity duration, circumstances, criminal history, and other factors prescribed by legislation).

[3] The $631 includes all recoverable costs to process pardons applications. Non-recoverable costs,which are already included in departmental appropriation, are not included in the proposed user fee

[4] There is an additional $94 in non-recoverable costs which are not included in the $631 because these items are already included in departmental appropriations.

[5] Volume reduction attributed to longer eligibility periods, the increased fee, and higher fees by private agencies that provide pardon services.

[6] There is an additional $94 in non-recoverable costs which are not included in the $631 because these items are already included in departmental appropriations.