Vol. 145, No. 1 — January 5, 2011

Registration

SOR/2010-306 December 15, 2010

FINANCIAL ADMINISTRATION ACT

ARCHIVED — 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, December 14, 2010

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 $150 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 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 Parole Board of Canada (or the Board) to grant, deny or revoke pardons for offences under federal acts or regulations. The Board is also responsible, under the Corrections and Conditional Release Act (CCRA), for making conditional release decisions for all federal offenders and for provincial offenders in the eight provinces and three territories that do not have their own parole boards.

On June 29, 2010, Bill C-23A came into force, 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 factors the Board may consider in determining whether the grant of the pardon would bring the administration of justice into disrepute.

A pardon allows people who were convicted of a criminal offence, but have completed their sentence and demonstrated 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. It can be a necessary step for obtaining entry to certain countries, such as the United States.

Over 3 million Canadians have criminal records, approximately 1.5 million are eligible to apply for a pardon, and the number of people eligible grows by approximately 60 000 ever year (although most eligible people do not apply for a pardon). Over the past five years, the annual volume of pardon applications received by the Board has doubled, increasing from 18 000 to almost 36 000.

The $50 fee for processing a pardon application was introduced in 1994/95 and has remained unchanged. This user fee is shared between the Board ($35) and the RCMP ($15) and was based on the distribution of work needed by each organization to process a pardon.

Without the increase to the user fee, the Board’s capacity to meet its legislated responsibilities would be jeopardized. Costs for the processing of pardon applications have increased substantially. As well, given the substantial increase in applications received during the past years, the workload in the pardons program has added to the challenge in the Board’s ability to manage its legislated responsibilities in an effective manner.

N.B. In accordance with the User Fee Act (UFA), the proposal to increase the user fee to $150 was tabled in both Houses. The proposal was adopted by the House of Commons on October 20, 2010. On November 24, 2010, the Senate also adopted the proposal, however, noted that the Senate Standing Committee on Legal and Constitutional Affairs issued a report with observations including those with respect to future consultation for the full cost recovery proposal.

Objectives

This proposal seeks to increase the fee for a pardon application from $50 to $150. This proposed fee increase represents the first step in the Government’s plan to move to full cost-recovery for the pardons program. The increase to $150 is based on a partial cost-recovery approach linked to the direct cost for processing a pardon application prior to implementation of Bill C-23A. This is an interim measure designed to provide the Board with increased capacity to manage heavy and ongoing pardon workloads, while addressing important changes in the pardon process as a result of Bill C-23A, and preparing for implementation for a full cost-recovery approach for pardons.

The $50 fee for processing a pardon application introduced in 1994–95 is shared between the Board ($35) and the Royal Canadian Mounted Police (RCMP) [$15]. The distribution of this fee is based on the distribution of the work required by each organization to process a pardon. While the $50 fee has never been raised, the costs of processing a pardon application and the number of applications received annually have risen significantly over the past 15 years. At the current $50 fee, the pardons program is unsustainable, which jeopardizes the Board’s ability to meet its legislated mandate.

Description

The Board is proposing to increase its fee for a pardon application from $50 to $150, including an increase of $100 in the Board’s component of the fee. The RCMP declined to proceed with an increase in its component of the fee (i.e. $15) at this time.

Regulatory and non-regulatory options considered

The Board considered numerous approaches, both regulatory and non-regulatory, to strengthen capacity for managing workloads associated with the processing of pardon applications. Initially, the Board developed measures to enhance productivity such as process streamlining, policy refinement and improvements to the automated system used to support application processing. These improvements were necessary and beneficial, but fall far short of providing capacity for managing current workload levels that approach 36 000 applications per year.

Finally, the Board considered three options in developing a proposal for a fee increase:

• Status quo
• Internal re-allocation of resources
• Fee increases (partial or full increase)

Status quo: fee of $50.00, including $35.00 for the Board and $15.00 for the RCMP. This option was rejected because it was not feasible from a resource or operational perspective. The Board does not have the resources to manage the existing workload. As a result, backlogs of applications would be permanent. Process times for pardon applications would lengthen considerably. Public credibility would be adversely affected and the effectiveness of the pardons program would be undermined.

Internal re-allocation of resources: to address the backlog in applications in recent years, the Board re-allocated funds from its conditional release program. While this measure addressed the backlog, it is not sustainable and would jeopardize the Board’s ability to meet its legislated responsibilities in the conditional release program.

Partial or Full-cost recovery: Post Bill C-23A, the Government plans to move to full cost-recovery for the pardons program. The increase to $150 is based on a partial cost-recovery approach linked to the direct cost for processing a pardon application prior to implementation of Bill C-23A. This is an interim measure designed to provide the Board with increased capacity to manage heavy and ongoing pardon workloads, while addressing important changes in the pardon process as a result of Bill C-23A, and preparing for implementation for a full cost-recovery approach for pardons.

Costs and revenue estimates

In preparation for development of the proposal to increase the pardons user fee, the Board carried-out a comprehensive exercise to identify the costs for processing an application, using the methodology developed by the Treasury Board and endorsed by the Office of the Auditor General. This costing exercise, completed prior to the implementation of Bill C-23A, identified total direct costs for the Board of $135 for processing a pardon application. The tasks specifically linked to moving an application from start to finish through the process, are outlined below:

TASK	DIRECT COST ($)
Screening, investigation, preparation of cases for decision-making, issuing pardons, and notification of pardons awarded (Pardons Division)	$120.00
Decisions by Board members to grant, deny or revoke pardons (Appeal Division)	$3.00
Mail services, postage and management of records associated with pardon applications (Information Management)	$10.00
Receipt of payments for user fees, deposit in Consolidated Revenue Fund, refunds (Financial Services)	$2.00
TOTAL	$135.00

The following table provides estimates of costs for processing pardon applications in the fiscal year 2010–11. To determine estimates of applications received and processed, the Board considered trends in application volumes in recent years and the anticipated impact of introduction of the higher fee in the short and long term. Based on this assessment, the Board anticipates that there will be an increase in applications in the period between announcement of the new fee and its implementation as applicants attempt to have their application considered under the $50 fee scheme.

It should be noted that the Board only collects the user fee when applications are processed in their entirety. On average, each year 20–25% of applications received are not processed because they are incomplete, the applicant is ineligible to apply or the user fee is not included with the application. As a result, while work is done on these applications, the fee is not collected.

Parole Board of Canada Cost Elements*	2010/2011
Applications Received (1)	30 000
Applications Processed (2)	24 000
Direct Costs
Application Processing	$2,880,000.00
Pardon Decision-Making	$72,000.00
Records Management	$240,000.00
Fee Administration	$48,000.00
Sub-total Direct costs	$3,240,000.00
Indirect Costs (3)	$2,376,000.00
Total Costs (4)	$5,616,000.00

*Please note that this does not include the RCMP.

(1) Projections based on recent trends and anticipated impact of introduction of the new fee.

(2) 80% of applications received.

(3) Indirect cost elements include policy development and advice; communications and public information; human resource services; legal services; security services; audit and evaluation services; performance measurement; and corporate management.

(4) Bill C-23A will introduce greater complexity to the processing of pardon applications. Costs are expected to increase accordingly.

Board Revenue Elements	2010/2011
Pardon User Fee (1)	$1,640,000.00

(1) The revenues of the user fees required from the pardon applicants are equal to the direct costs for processing pardon applications, and represent 58% of the full costs

In 2010–11, revenues are lower than direct costs because implementation of the user fee increase to $150 is not expected until December 2010.

Benefits and costs

A full cost-benefit analysis of the proposed increase to the pardons user fee was conducted in 2009. The cost-benefit analysis at that time supported the partial cost recovery model as a viable option, based on the argument that the granting of pardons provides both private benefits to the applicant and public benefits to Canadian society.

The cost-benefit analysis generally demonstrates that the benefits of the proposed fee increase, compared to the alternative (the pardon granting system remaining unsustainable), significantly outweigh the costs. It also benefits Canadians as a whole by contributing to a greater reintegration of individuals with a criminal record to full participation in society. In 2010, the Government directed the Board to pursue a full cost-recovery approach for pardons. Detailed costing and analyses are now underway to assess the impacts of this approach, particularly in terms of the changes to the pardons process as a result of Bill C-23A. Costs (direct and indirect) outlined in this report, however, remain valid for the purposes of partial cost-recovery.

A. Monetizable Impacts — millions ($2002 CAD)

Stakeholder	Description	PV Costs	PV Benefits	First Year (2010)	Last Year (2019)	Average
Pardon Applicants	Applicants who receive pardons will benefit from more travel and work opportunities.		$64.03	$5.19	$14.19	$9.46
Pardon Applicants	Increased fee will cost applicants more.	$25.34		$3.20	$3.93	$3.55
THE BOARD	Implementation of new service standards and anticipated continued growth in pardon applications combined with increasing costs to assess applications will potentially cause budgetary shortfalls.	$3.40		-$0.61	$2.24	$0.67
Total		$28.74	$64.03
Net Present Value (PV) (8% discount rate)		$35.29

B. Quantifiable Impacts

Stakeholder	Description		Total	First Year	Last Year		Average
Pardon Applicants	Number of additional applications processed under the new policy.		265 272	16 224	37 227		26 527
Pardon Applicants	Number of additional pardons under the proposal.		209 917	12 838	29 458		20 992

C. Qualitative Impacts

Stakeholder	Description
THE BOARD	The Board’s capacity to respond as per acceptable service standards would be jeopardized without an increase. Given the substantial increase in the number of applications received, and their costs, during the past years, the workload in the pardons program has added to the challenge in the Board’s ability to manage its legislated responsibilities in an effective manner.
Families of applicants	Families and friends of individuals who receive pardons will benefit, as those who receive a pardon have increased opportunities (e.g. for employment and housing).
RCMP	There should not be an impact on the RCMP.
Canadian Public	The provision of a pardon ensures careful consideration is given to issues of public safety while assisting individuals’ reintegration into society, which decreases the probability of re-offending. A pardon provides an opportunity for recipients to contribute to their communities as law-abiding citizens. Most individuals (over 96%) who receive a pardon remain crime free, demonstrating the value of a pardon as a long-term measure for community reintegration.

Compliance with the User Fees Act

(A) Consultations with primary partner (prior to Bill C-23A)

In fall 2008, consultations were held with the RCMP to discuss the Board’s plans to increase the fee to $150 and to determine whether or not the RCMP would also seek an increase in its component of the pardons user fee. RCMP representatives indicated that they were not ready to proceed with proposals for an increase in their component at this time.

(B) Consultations with external stakeholders (prior to Bill C-23A)

Previous attempts by the Board to consult directly with pardon recipients or potential pardon applicants have proven unsuccessful as these groups have generally been unwilling to come forward to participate. By definition, users of pardons services have criminal records, and many have not revealed their records to family and friends.

Given this reality, the Board chose to meet with members of the National Associations Active in Criminal Justice (NAACJ), which includes, among its membership, representatives of offender advocacy groups from across the country.

Three main themes emerged during the consultations. The first involved the need to ensure that pardon applications are processed in reasonable time frames. The second called for simplification of the pardon process for applicants. On-line application was also identified as a measure for process improvement. Process simplification was considered important because it would reduce the need for many applicants to seek third party assistance in applying for a pardon. The use of various pardon companies adds significant costs for pardon applicants. The third area for improvement focused on measures to enhance the quality and visibility of public information about pardons, and Board responsibility for processing pardon applications.

The Board has taken action to address some of these suggestions. Service standards will be established as part of the full-cost recovery exercise. The Board has also begun work to simplify the pardon process for pardon applicants. The pardon application kit (Pardon Application Guide and Forms), as well as print and electronic information about the pardons program itself, were revised and updated to ensure that plain language was used and clear instructions were provided. Offender advocacy groups were informally consulted for these initiatives. The Board is also considering the possibility of introducing online applications for pardons in the future. Progress is being made, but there are significant security and privacy issues, as well as cost factors, that must be resolved before online applications could be introduced. The Board is also working with offender advocacy groups to enhance the dissemination of public information about pardons and the pardon program. These efforts will be accompanied by work with the Board’s criminal justice partners and community groups.

(C) Consultations with other governmental departments (prior to Bill C-23A)

The Board met with stakeholders from other federal departments and agencies. Participants included representatives from the RCMP, the Correctional Service of Canada, National Defence (DND), Status of Women Canada, Service Canada, the Treasury Board Secretariat, and the Office of the Comptroller General. Feedback from this session indicated that all participants acknowledged the need for the Board to proceed with the proposal for the increase in the pardon user fee, given the workload pressures that it faces in the pardons area and the need to maintain sufficient resources to manage its responsibilities for conditional release.

(D) On-line consultation (prior to Bill C-23A)

Consistent with the requirements of the User Fees Act (UFA), the Board hosted an online consultation in April 2009. A notice of the proposed increase was posted on the Board’s Web site, along with information on the proposed increase, to allow members of the public to submit comments or complaints.

Only three comments from the public were received during this period. Each received an individualized response and no further correspondence was received (therefore it was not deemed necessary to convene an independent advisory panel tasked with addressing complaints under the UFA).

One comment suggested a waiver of the fee in some cases. This idea, along with varying fee structures based on type of offence or on the extent of investigations required for application processing, has been discussed in the past and is not possible. Costs for administration of these approaches would be prohibitive and the complexities of administration could add significant time to application processing.

Two of the respondents felt that the fee increase should be lower. It was explained that the fee had not been increased since its introduction over 15 years ago, and that the proposed increase is a necessary adjustment that takes into account inflation, higher processing costs, improved service standards, and the significant growth in pardon applications in recent years.

The third respondent, from a private firm providing assistance to pardons applicants, was supportive of the increase as it would ensure service standards are met and would quicken response time.

(E) International comparisons

A review of international practice (including the Unites 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.

(F) Dispute resolution

(a) Consultation process

Consistent with the requirements of the UFA and the principles of fairness, openness and accountability, the Board was ready to form an independent advisory panel had it been needed to examine questions and complaints raised with respect to the proposed user fee increase. Ultimately, only three comments were received from the public consultation period, and none of these comments was significant. The Director of Pardons responded directly to each of the three commentators, and no further comments were received; therefore, a panel did not need to convene.

(b) Pardon revocation/denial

When determining whether to revoke a pardon on the grounds that the individual to whom the pardon was granted or issued is subsequently convicted of an offence punishable on summary conviction under a federal act or its regulations, decisions will be made by one Board member (unless the applicant has been convicted of a sex offence prosecuted by way of indictment, in which case two Board members will make the decision). Board members who propose to deny, revoke, or cease a pardon, will set out in writing the reasons for the proposal to deny, revoke or cease.

If representations are received, the final decision as to whether or not to refuse to grant a pardon, to revoke a pardon, or to cease a pardon, will be made by different Board members who will set out in writing the reasons for the decision.

In all cases requiring two votes, both members must be in agreement. If agreement cannot be reached, the case will be referred to two new Board members.

If the Board proposes either to refuse to grant, to revoke a pardon or to cease a pardon, the review will not proceed for at least 60 days following notification to the applicant, unless representations are received at an earlier date. If the Board authorizes that representations may be made orally, the representations may be heard by way of an in-person hearing in the national office of the Board or in one of the Board’s regional offices.

The Board may conduct a review by way of a hearing, if the Vice-Chairperson, Appeals Division, believes it is desirable to do so based on an assessment of any relevant factor, including:

• where there is information that suggests that the applicant has had involvement with the police since the last conviction; or
• where it is necessary to clarify information provided by the applicant.

Implementation, enforcement and service standards

During the planning phases for the introduction of an increase to the pardons user fee, the Board decided that the fee increase should be accompanied by greater benefits for pardon applicants. In subsequent consultations, offender advocacy groups reinforced the importance of improving benefits for applicants. The Board’s commitment to greater benefits for pardon applicants will be achieved through improvements in two areas:

The first involves formal service standards that will provide more timely application processing than was previously available. The service standards are valid for pardon applications received by the Board prior to the implementation of Bill C-23A. They are not valid, however, for applications received after the Bill came into force as the legislative changes introduced by the Bill add complexity to the pardon process and could lengthen application processing times.

Provision of service prior to Bill C-23A and in the future was governed and will be governed by the following principles:

• dependability and timeliness — The Board 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 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 CRA, respecting the rights and privacy of applicants and concerns for public safety.
• openness and accountability — The Board will explain the services that are provided for 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 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 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.

Through the internal reallocation of funds for the Conditional Release Program, the Board has been informally meeting these standards, but is unable to do so in the future without the increase to the user fee.

The second initiative to increase benefits involves measures to simplify the pardon process for applicants. The Pardon Application Guide and related information was simplified with an emphasis on plain language. It is expected that this initiative will reduce the need for applicants to pay for the services of private sector organizations offering assistance with pardon applications.

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.

Coming into force

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

Contact

Parole Board of Canada
410 Laurier Avenue West
Ottawa, Ontario
K1A 0R1
Attention: Pardon User Fee Increase
Pardons INFO line: 1-800-874-2652
Emails:
frais_pardon@npb-cnlc.gc.ca
pardon_fee@npb-cnlc.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