The Royal Prerogative of Mercy
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 Queen'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.
The power to exercise the Royal Prerogative of Mercy for federal offenses 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 Solicitor General of Canada, 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 Queen in right of Canada", may be remitted by the Governor General.
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Principles guiding the exercise of clemency
The Royal Prerogative of Mercy is exercised according to general principles which are meant to provide for a fair and equitable process, while ensuring that it is granted only in very exceptional and truly deserving cases.
In reviewing clemency applications, conducting investigations and making recommendations, the National Parole Board shall be guided by the following principles:
1. THERE MUST BE EVIDENCE OF SUBSTANTIAL INJUSTICE OR UNDUE HARDSHIP.
Neither the Governor General nor the Governor in Council intervene on technical grounds. Therefore, in order for executive clemency to be invoked on the basis of an injustice, there must be clear evidence of a substantial injustice.
Similarly, undue hardship, which includes suffering of a mental, physical and/or financial nature, must be out of proportion to the nature and the seriousness of the offense and the resulting consequences, and must be more severe than for other individuals in similar situations.
In general terms, the notions of injustice and hardship imply that the suffering which is being experienced could not be foreseen at the time the sentence was imposed. In addition, there must be clear evidence that the injustice and/or the hardship exceed the normal consequences of a conviction and sentence.
2. THE EXERCISE OF THE ROYAL PREROGATIVE OF MERCY IS CONCERNED SOLELY WITH THE APPLICANT.
Each application will be examined on its own merits, taking into consideration the circumstances of the individual applicant. Consideration will not be given to the hardship of anyone else who may be affected by the applicant's situation, nor will it be considered posthumously.
3. THE EXERCISE OF THE ROYAL PREROGATIVE OF MERCY IS NOT INTENDED TO CIRCUMVENT OTHER EXISTING LEGISLATION.
In order for the Royal Prerogative of Mercy to be invoked, the applicant must have exhausted all other avenues available under the Criminal Code, or other pertinent legislation.
In addition, an act of executive clemency will not be considered where the difficulties experienced by an individual applicant result from the normal consequences of the application of the law.
Furthermore, the Royal Prerogative of Mercy will not be considered as a mechanism to review the merits of existing legislation, or those of the justice system in general.
4. THE INDEPENDENCE OF THE JUDICIARY SHALL BE RESPECTED.
The exercise of the Royal Prerogative of Mercy will not interfere with a court's decision when to do so would result in the mere substitution of the discretion of the Governor General, or the Governor in Council, for that of the courts. There must exist clear and strong evidence of an error in law, of excessive hardship and/or inequity, beyond that which could have been foreseen at the time of the conviction and sentencing.
5. THE ROYAL PREROGATIVE OF MERCY SHOULD BE APPLIED IN EXCEPTIONAL CIRCUMSTANCES ONLY.
The Royal Prerogative of Mercy is intended only for rare cases in which consideration of justice, humanity and compassion override the normal administration of justice. It should be applied only where there exist no other remedies, where remedies are not lawfully available in a particular case, or where recourse to them would result in greater hardship.
6. THE EXERCISE OF THE ROYAL PREROGATIVE OF MERCY, BY ITS VERY NATURE, SHOULD NOT RESULT IN AN INCREASED PENALTY.
When considering the merits of an individual case, the decision should not, in any way, increase the penalty for the applicant.
Specific remedies and criteria
In addition to the general principles which guide the National Parole Board in assessing the merits of clemency applications, each form of relief is assessed against some specific criteria:
1. FREE PARDON
• definition
A free pardon is a formal recognition that a person was erroneously convicted of an offense. Any consequence resulting from the conviction, such as fines, prohibitions or forfeitures, will be canceled upon the grant of a free pardon. In addition, any record of the conviction will be erased from the police and court records, and from any other official data banks.
• criteria
The sole criterion upon which an application for a free pardon may be entertained is that of the innocence of the convicted person.
In order for a free pardon to be considered, the applicant must have exhausted all appeal mechanisms available under the Criminal Code, or other pertinent legislation. In addition, the applicant must provide new evidence, which was not available to the courts at the time the conviction was registered, or at the time the appeal was processed, to clearly establish innocence.
• authority
Governor in Council and Governor General
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