Vol. 146, No. 5 — February 29, 2012

Registration

SOR/2012-12 February 8, 2012

FINANCIAL ADMINISTRATION ACT

Order Amending the Pardon Services Fees Order

Whereas section 4 of the User Fees Act (see footnote a) has been complied with in respect of the fees fixed in the annexed Order;

Therefore, the Minister of Public Safety and Emergency Preparedness, pursuant to Order in Council P.C. 1995-698 of April 26, 1995 (see footnote b) and paragraph 19(1)(b) (see footnote c) of the Financial Administration Act (see footnote d), hereby makes the annexed Order Amending the Pardon Services Fees Order.

Ottawa, February 8, 2012

VIC TOEWS
Minister of Public Safety and Emergency Preparedness

ORDER AMENDING THE PARDON SERVICES FEES ORDER

AMENDMENT

1. Section 3 of the Pardon Services Fees Order (see footnote 1) is replaced by the following:

3. Any person referred to in subsection 3(1) of the Criminal Records Act who applies to the National Parole Board for a pardon pursuant to that Act shall pay for all pardon services provided by the National Parole Board a fee of $631.00 to be paid to the order of the Receiver General.

COMING INTO FORCE

2. This Order comes into force 14 days after the day on which it is registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Executive summary

Issue

The Criminal Records Act (CRA) authorizes the National Parole Board (NPB or the Board) to grant, deny or revoke pardons for convictions under federal acts or regulations. The Board is also responsible, under the Corrections and Conditional Release Act (CCRA), for making conditional release decisions for federal offenders and for provincial offenders in the eight provinces and three territories that do not have their own parole boards. Quebec and Ontario have established provincial parole boards.

A pardon allows people who were convicted of a criminal offence, but who have completed their sentence and demonstrated that they are law-abiding citizens for a prescribed number of years, to have their judicial record kept separate and apart from other criminal records so that it no longer reflects adversely on them. A pardon removes any disqualification under federal legislation resulting from the conviction. A pardon does not erase the fact that a person was convicted of an offence. For example, a pardon does not guarantee entry into, or visa privileges from another country.

Over 3 million Canadians have criminal records. The Criminal Records Act outlines the requirements to apply for a pardon. Approximately 1.5 million are eligible to apply for a pardon, and the number of people eligible grows by approximately 60 000 every year (although most eligible people do not apply for a pardon). In 1994–95, Treasury Board approved the introduction of a $50 user fee for pardons ($35 to the NPB). Currently, pardon applicants pay $150 for their application to be processed. The fee represents a portion of the costs incurred by the NPB for this work. The Board receives $135 and the RCMP receives $15.

Since Bill C-23A has come into force, the full costs have been calculated to be $725, of which $631 are recoverable costs and $94 are non-recoverable costs.

Without an increase to $631, the Board’s capacity to respond in terms of the current pardon process will be jeopardized. Due to the additional requirements imposed by Bill C-23A, the costs for the processing of pardon applications have increased substantially, making the pardon program unsustainable.

Objectives

The main objective of the proposal is to increase the user fee for processing pardon applications to ensure sustainability for the Board’s pardon program, and secure the resources needed to efficiently and effectively deliver pardon services to users under the revised CRA. By aligning the fee for application processing with the costs for this activity, the Board will have access to sufficient resources to manage current workloads.

Description

The current fee of $150 does not cover the cost to process a pardon application following the amendment to the CRA in June 2010. The Board is now seeking to implement a cost recovery model for the processing of a pardon application. Cost recovery will require the Board to increase its fee from $150 to $631.

Regulatory and non-regulatory options considered

When fees were first established in 1994–95, the fee was set at $50 ($35 to the Board, $15 to the RCMP). This fee covered a portion of the Board’s costs. In the intervening years, the costs to process a pardon have increased substantially. In 2010, the full costs of the pardon system before enactment of Bill C-23A were estimated to be $231. With Bill C-23A in place, full costs have been calculated to be $725, of which $631 are recoverable costs and $94 are non-recoverable costs.

The Board considered numerous approaches, both regulatory and non-regulatory, to strengthen its capacity to manage the workload associated with the processing of pardon applications.

1. Measures were developed to enhance productivity (e.g. process streamlining, policy refinement and improvements to the automated system used to support application processing). These improvements were necessary and beneficial in that they enhanced organizational efficiency and helped to control costs. They were only sufficient, however, to enable the Board to manage 15 000 to 18 000 pardon applications per year. They still fell short of providing capacity for managing workload levels that have averaged almost 33 000 applications per year for the last three years.
   
   
2. The Board also considered amendments to the CRA. These would have involved the automatic sealing of criminal records for offences involving summary convictions but only if a specified period of crime-free behaviour (e.g. five years) had passed. This option was rejected because the Board would still have had to seek a fee increase to cover costs for processing pardon applications involving indictable offences or hybrid offences (i.e. offences that could have been dealt with summarily or by way of indictment).

Benefits and costs

Sustainability of the pardon program

The increase will ensure the effectiveness and long-term sustainability of the pardon program so that applicants can continue to benefit from the opportunities a pardon provides. Without additional funding, the program is currently unsustainable.

Timely processing of applications

The new requirements imposed through the implementation of Bill C-23A have resulted in a more complex review process for pardon applications. Currently, NPB requires additional time to obtain additional information from applicants, research cases, obtain additional information from criminal justice personnel and make recommendations. Compared to the current situation, once the fee increased is in effect applications for pardons will be processed within a specified time frame as a result of new service standards, which are outlined later in this document.

Applicants who receive a pardon will continue to benefit from the advantages such as greater opportunities to pursue different employment opportunities and travel.

The perceived benefits of receiving a pardon are such that applicants are often willing to pay a third party service provider to prepare their application for them. Having a third party prepare the application is not necessary to receive a pardon nor does it increase the likelihood of receiving a pardon.

Fewer complaints from applicants

Removal of the potential for backlogs will reduce the chance that the Board will need to commit resources to respond to complaints from applicants due to long waits.

Table 1: Cost-benefit analysis summary table (millions of 2002 $)

A. Monetizable impacts
Stakeholder	Impact Type	Description	Present Value Costs	Present Value Benefits	First Year (2011)	Last Year (2020)	Average
Pardon applicants	Benefit	Increase in the total value of pardons granted to applicants		$85.1	$6.2	$11.3	$8.5
Pardon applicants	Cost	Increased fees to applicants	-$46.6		-$6.1	-$8.1	-$7.0
Board	Benefit	Reduction in budgetary shortfalls		$46.6	$6.1	$8.1	$7.0
Total			-$46.6	$131.7
Net present value:			$85.1		Cost-benefit ratio:		2.83
B. Qualitative impacts
Families	Benefit	Families and friends of individuals who receive pardons will also benefit by being able to partake in activities they were previously restricted from doing together.
RCMP	Cost	The new pardon process will entail more work for the RCMP. If the $15 fee is insufficient, the shortfall could divert RCMP resources from other activities.
Canadian public	Benefit	More rigorous evaluation process could reduce the risks associated with these individuals re-offending.

The overall net benefit of the proposed fee increase is $85 million with a benefit-cost ratio of 2.83. This means for every dollar the program costs Canadians, $2.83 of benefit can be expected. This calculation is considered to be conservative as it excludes most of the benefits of the pardon system to Canadian society as a whole.

Compliance with the User Fees Act

(A) Consultations with primary partner

Consultations were held with the RCMP to discuss the NPB’s plans to increase the fee and to determine whether the RCMP would also proceed with an increase to its component of the pardon user fee. RCMP representatives indicated during this consultation that they would not proceed with a proposal for an increase at that point in time.

(B) Consultations with other governmental departments (OGDs)

The Board met on February 17, 2011, with representatives from the Royal Canadian Mounted Police (RCMP), Correctional Service Canada (CSC), Citizenship and Immigration Canada (CIC), Office of the Correctional Investigator (OCI), Public Safety Canada (PSC) and the Department of Justice Canada (JC). Written input was subsequently received from Status of Women Canada and Service Canada.

The purpose of the consultation with OGDs was to

• give an overview of the pardon program as well as detailed information about the proposed user fee and related costing exercise;
• offer an opportunity for participants to ask questions and seek further clarification; and
• offer an opportunity for participants to give feedback to the NPB about the pardon program, the proposed user fee, and ideas to improve service levels.

(C) Consultations with external stakeholders

As part of its consultation efforts, the NPB contacted a number of non-governmental organizations (NGOs) who work with potential pardon applicants, for example the Elizabeth Fry Society and the John Howard Society.

An invitation was extended to these organizations to attend a consultation session on February 18, 2011, in Ottawa (either in person or by teleconference).

As with the meeting with OGDs, the purpose of the consultation with NGOs was to

• give an overview of the pardon program as well as detailed information about the proposed user fee and related costing exercise;
• offer an opportunity for participants to ask questions and seek further clarification; and
• offer an opportunity for participants to give feedback to the NPB about the pardon program, the proposed user fee, and ideas to improve service levels.

(D) Online consultation

The Board hosted an online consultation from February 10 to 27, 2011. Through this consultation, members of the public were invited to submit their comments on the proposed user fee increase by email or regular mail.

The online consultation was promoted on the Government of Canada’s official Consulting with Canadians Web site; a number of Government of Canada Web sites, including Service Canada, Public Safety Canada, and Correctional Service Canada; and via email notification to various stakeholders, as well as numerous pardons companies. The consultation was also promoted on the Board’s 1-800 toll-free pardon information line. In addition, a notice of the online consultation was included in all written correspondence with pardon applicants during that time period.

Notices promoting the consultation were also distributed and posted within NPB regional offices, Correctional Service of Canada institutions and parole offices, public legal education and information organizations, legal aid offices, some offices of organizations associated with the National Associations Active in Criminal Justice (NAACJ), the Association of Canadian Court Administrators (ACCA), the National Association of Friendship Centres and the Canadian Association of Chiefs of Police.

In addition, a notice of the consultation was sent to various government and non-governmental organizations such as pardon companies, heads of corrections, National Joint Committee of Senior Justice Officials, Federation of Canadian Municipalities, Commission québécoise des libérations conditionnelles, Ontario Parole Board, Canadian Association of Chiefs of Police, Federal Ombudsman for Victims of Crime, the RCMP Witness Protection Program and Confidential Service for Victims of Abuse. Emails were also sent to various organizations (provincial/territorial partners, Association of Canadian Court Administrators [ACCA], etc.) with links to the consultation section of the NPB Web site.

In terms of a breakdown of the responses received, 1 074 individuals/organizations did not support the proposed fee increase while 12 were supportive of the proposed increase.

Of the 12 respondents who expressed support for the proposed increase, the most common reasons expressed were that

1. a person who commits a crime should be responsible for the fees associated with processing their pardon; and
   
   
2. pardons should not be subsidized by hardworking, law-abiding citizens/taxpayers.

Of the 1 074 responses received that did not support the proposed increase, the three most common reasons expressed were as follows:

1. It would pose a financial burden for applicants, with many unable to pay the increased fee;
   
   
2. It would make it difficult or impossible for people to apply for a pardon who need one to help them obtain employment or pursue their education; and
   
   
3. It amounted to further punishment to that already imposed by the Court.

For further details on the consultation process, please visit www.pbc-clcc.gc.ca/infocntr/factsh/pardonfeenotice-eng.shtml.

(E) Independent advisory panel (IAP) process

A total of 16 official complaints were received by the NPB, requesting referral to a panel.

For reasons of economy and efficiency, the Board formed one panel to address all complaints, in accordance with the User Fees Act (UFA).

The IAP, which was formed on May 16, 2011, was comprised of

• Ms. Martine Gravelle — Director of Corporate Services, NPB, selected by the National Parole Board;
• Ms. Lucie Joncas — lawyer, and Chair of the Elizabeth Fry Society of Canada, selected by majority vote by the complainants; and
• Mr. Nicolas Bellemare — lawyer and professor at l’École du Barreau du Québec, who was selected by Ms. Gravelle and Ms. Joncas as the third member of the IAP.

The IAP completed and distributed a final written report with its findings and recommendations for resolving the complaints to the NPB and the complainants. These included unanimous recommendations to continue to subsidize the costs of the pardon program; the ability to waive fees in some cases; charging a fee for preliminary examination of an application; cautions around the practice of cost-recovery for services; and that impact analysis documentation should be available to the public. Separate recommendations were made to postpone the fee increase and reopening the consultative process.

(F) Review of the proposal by parliamentary committees

The pardon user fee increase proposal was tabled on August 17, 2011. As outlined in the User Fees Act (UFA), each of the parliamentary committees has 20 sitting days to study and report on the proposal. The proposal was tabled for consideration with the House of Commons Standing Committee on Public Safety and National Security (SECU) and with the Standing Senate Committee on Legal and Constitution Affairs (LCJC). The SECU Committee did not conduct a study of the proposal. The 20 sitting days for SECU ended on October 21, 2011, and under the UFA, SECU is deemed to have submitted a report recommending that the proposal be approved.

The Standing Senate Committee on Legal and Constitution Affairs (LCJC) presented its report on the Board’s user fee increase proposal on November 3, 2011. The Senate adopted the report on November 15, 2011. While the LCJC approved the user fee increase proposal, it made several observations and indicated that the Minister of Public Safety and the Board provide written responses to the committee with respect to each of the committee’s observations within 12 months.

• The LCJC noted that all “cost elements” that are required to be presented pursuant to section 4(1)(d) of the UFA should be provided in a manner and form that is both detailed and comprehensive.
• Amend the UFA to require that future notifications be provided more broadly to the public and organizations that work with the target population.
• Amend the UFA to require that the consultation period is a minimum of 30 days.
• Explore the possibility of a “two-tier” pardon user fee structure, where the fees would differ based on whether the applicant was convicted of a summary or indictable offence.
• Explore the merits of a more streamlined and cost-effective procedure for granting pardons for summary offences that do not include sexual offences.

Implementation, enforcement and service standards

In conformity with section 4 of the UFA, upon implementation of the new fee, the Board will establish 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 (five-year eligibility) will be processed within six months of application acceptance;
• pardon applications involving offences listed in Schedule 1 regardless of method of trial and personal injury offences (section 752 of the Criminal Code) where the administration of justice will need to be measured/tested 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 above standards apply and the pardon user fee levied when it is determined that the application is complete and the applicant is eligible.

Through NPB’s 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. This information should be 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 an application will result in a pardon.

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

• Dependability and timeliness — the Board will respond promptly and in the official language of choice to those who seek information about 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 Board will treat all those who apply for a pardon courteously and fairly, recognizing their unique needs and circumstances. In making pardon decisions, the Board 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 Board 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, on the results of pardon decisions vis-à-vis public safety and on the Board’s effectiveness in terms of the service standards established for processing pardon applications. Detailed information will also be provided on the costs of processing pardon applications and on the revenues earned from pardon user fees.
• Commitment to improvement — the Board will consult periodically with stakeholders and partners to identify elements of the pardon program that are working effectively and those elements that require improvement.

International comparisons

A review of international practice (including the United States, the United Kingdom, Australia, New Zealand, and other European jurisdictions) indicates that while many jurisdictions have schemes to provide for relief from having to disclose a past criminal record, no jurisdiction could be identified that could provide a meaningful comparison in terms of the nature of the pardon program or the extent of pardon services provided in return for the user fee charged for service. The vast majority of jurisdictions provide pardons by way of executive decision (e.g. gubernatorial or presidential). In jurisdictions where pardons are provided by way of government organization, (e.g. parole board) the processes differ considerably from the Canadian model, often involving public hearings. In the jurisdictions where fees were charged for applying for a pardon, applicants were also responsible for paying for legal representation and/or court costs.

Contact

National Parole Board
Attention: Pardon user fee increase
410 Laurier Avenue W
Ottawa, Ontario
K1A 0R1
Pardons Info-line: 1-800-874-2652
Email: pardons@pbc-clcc.gc.ca

Footnote a
S.C. 2004, c. 6

Footnote b
SI/95-59

Footnote c
S.C. 1991, c. 24, s. 6

Footnote d
R.S., c. F-11

Footnote 1
SOR/95-210