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REPORT OF THE COMMITTEE

Tuesday November 23, 2010

The Standing Senate Committee on Legal and Constitutional Affairs

has the honour to present its

TWELFTH REPORT

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Your committee, to which was referred the document “National Parole Board User Fees Proposal” dated September 27, 2010, has, in obedience to its order of reference of Monday, September 27, 2010, examined the proposed user fee.

 Your committee recommends that, in accordance with section 5 of the User Fees Act, the Senate approve the proposed increase to the National Parole Board’s component of the pardon user fee from $35 to $135, which creates a total fee of $150 (including the RCMP’s component).

Your committee has also made certain observations which are appended to this report. 

Respectfully submitted,

John D. Wallace
Deputy Chair

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APPENDIX TO THE TWELFTH REPORT OF THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS ON THE NATIONAL PAROLE BOARD’S USER FEES PROPOSAL 

OBSERVATIONS 

INTRODUCTION

On 27 September 2010, the Honourable Gerald J. Comeau, Deputy Leader of the Government in the Senate, tabled a document entitled National Parole Board User Fee Proposal in the Senate. This document, which was prepared by the Parole Board of Canada (hereafter the “Board” or the “National Parole Board”), seeks to increase the fee for a pardon application from $50 to $150. The proposal was tabled in the Senate in accordance with section 4(2) of the User Fees Act,[1] which requires ministers[2] responsible for regulating authorities[3] (in this case, the responsible Minister is the Minister of Public Safety and the regulating authority is the National Parole Board) to table a proposal in each House of Parliament[4] every time that a regulatory authority fixes, increases, expands the application of, or increases the duration of a user fee. The tabled proposal must:

·         explain in respect of what service, product, regulatory process, facility, authorization, permit or licence the user fee is being proposed; 

·         state the reason for any proposed change in user fee rate; 

·         include performance standards against which the performance of the regulating authority can be measured (these standards should be comparable to those established by other countries with which a comparison is relevant), as well as the actual performance levels that have been reached by the regulating authority in delivering the product or service in question; 

·         give an estimate of the total amount that the regulating authority will collect in the first three fiscal years after the introduction of the user fee, and identify the costs that the user fee will cover; and 

·         describe the establishment of an independent advisory panel, designed to resolve any complaints respecting the change in user fee received by the regulating authority, and outline how any complaints received by the regulating authority have been dealt with.

Immediately after the National Parole Board User Fee Proposal was tabled in the Senate, it was referred to this committee for study, [5] in accordance with Rule 28(3.1) of Rules of the Senate of Canada. This rule states:

28 (3.1) When the Leader of the Government in the Senate or the Deputy Leader of the Government in the Senate tables a document proposing a user fee, it is deemed referred, without debate or a vote, to the select committee designated in the Senate for the purpose by the Leader of the Government in the Senate or the Deputy Leader of the Government in the Senate following consultation with the Leader of the Opposition in the Senate or the Deputy Leader of the Opposition in the Senate.[6]  

Section 5 of the User Fees Act specifies that once a user fee proposal has been referred to a committee for study, the committee in question may review it, “and submit to the Senate or the House of Commons, as the case may be, a report containing its recommendation as to the appropriate user fee, subject to section 5.1.” Under section 5.1 of the Act, the user fee (which in this case would be $150) shall be reduced if the regulating authority (in this case the National Parole Board) fails to meet the performance standards established by it for that fiscal year by a percentage greater than 10%.[7] The amount of the reduction cannot exceed 50%. The reduced fee applies from the date that the regulating authority’s annual report is tabled to the date of the tabling of the authority’s next annual report.

Once the committee of the Senate or the House of Commons has reported on what it believes the appropriate user fee should be, section 6(1) of the User Fees Act states that the Senate or the House of Commons, as the case may be, may pass a resolution approving, rejecting or amending the committee’s recommendation. The Act does not, however, state what the consequences of such parliamentary resolutions will be. In accordance with section 6(2) of the Act, as well as with Rule 28(3.2) of the Rules of the Senate of Canada, if a committee to whom a user fee proposal has been referred for study fails to report back to the appropriate House of Parliament within 20 sitting days after the user fee proposal was tabled, the committee is deemed to have submitted a report to the Chamber recommending approval of the user fee in question.

 

THE NATIONAL PAROLE BOARD USER FEE PROPOSAL

A.    Background

The statute which gives the National Parole Board the necessary authority to grant, refuse to grant or revoke pardons issued to those who have been convicted of criminal offences is the Criminal Records Act.[8] The Criminal Records Act not only contains criteria that govern who is eligible and therefore may apply for a pardon from the Board, but also the factors that the Board will take into consideration when deciding whether or not to grant, deny or revoke a pardon, and the procedures applicable to pardon applications.

The provisions governing the issuance of pardons by the Board have recently undergone significant amendment. On 29 June 2010, An Act to amend the Criminal Records Act (Limiting Pardons for Serious Crimes Act)[9]  (formerly known as Bill C-23A) came into force. This statute amended provisions of the Criminal Records Act to place restrictions on applications for pardons in certain cases. 

Prior to the coming into force of Bill C-23A, a person could apply to the National Parole Board for a pardon three years after the expiry of a sentence for a summary conviction offence and five years after the expiry of a sentence for an indictable offence. In the case of an indictable offence, the Board could grant a pardon if it was satisfied that the applicant had been of good conduct and had not been convicted of another offence. The Board had no discretion to refuse to issue a pardon to an applicant who had been convicted of a summary offence, provided the applicant had not been convicted of another offence during the three-year period. However, An Act to amend the Criminal Records Act (Limiting Pardons for Serious Crimes Act) amended section 4 of the Criminal Records Act to extend the waiting period before one is eligible to apply for a pardon to ten years in the case of a serious personal injury offence within the meaning of section 752 of the Criminal Code,[10] including manslaughter, for which the applicant was sentenced to imprisonment for a period of two years or more, or an offence referred to in Schedule 1 of Criminal Records Act[11] that was prosecuted by indictment. The waiting period before one is eligible to apply for a pardon was also extended to five years in the case of any other offence prosecuted by indictment, an offence referred to in Schedule 1 of the Criminal Records Act that is punishable on summary conviction or a service offence within the meaning of the National Defence Act[12] that meets a certain punishment threshold.

An Act to amend the Criminal Records Act (Limiting Pardons for Serious Crimes Act) also added new criteria for the National Parole Board to consider when determining whether or not a pardon should be granted for an indictable offence. Section 4.1 of the Criminal Records Act now states that, in these circumstances, the applicant must satisfy the Board that granting the pardon would provide a measurable benefit to him or her, would sustain his or her rehabilitation in society as a law-abiding citizen, and would not bring the administration of justice into disrepute (see sections 4.1(1)(b) and 4.1(2) of the Criminal Records Act). In addition, section 4.1(3) of the Criminal Records Act now states that in determining whether granting the pardon would bring the administration of justice into disrepute, the Board may consider the nature, gravity and duration of the offence, the circumstances surrounding the commission of the offence, any information relating to the applicant’s criminal or service offence history and any factor prescribed by regulation. As yet, it does not appear that additional factors have been prescribed by regulation.

The proposal makes it clear that the user fee increase being sought at this time, which would increase the fee applicants for pardons must pay from $50 to $150, is the first part of a staged increase. The Board’s current proposal explicitly states that the Board will be tabling another proposal in the near future (2011–2012), seeking another increase in user fees that would allow it to fully recover the costs of granting pardons under the new legislation.[13] In other words, the proposal currently before the committee seeks an interim fee increase, in order to ensure that the National Parole Board “has the capacity to process annual volumes of pardon applications in a timely and cost effective manner.”[14] The proposal is not designed to obtain full cost recovery for pardons in accordance with the changes to the Criminal Records Act introduced by Bill C-23A.

When officials from the National Parole Board, appeared before this committee on 22 June 2010, during its study of Bill C-23A, they estimated that it cost approximately $250 to process a pardon application, including overhead costs,[15] and suggested that if Bill C-23A was enacted, the actual cost of processing a pardon application could double to $500.[16]

 

B.     The Current Proposal Before the Committee

In the National Parole Board User Fee Proposal tabled in the Senate on 27 September 2010, the Board states that although the Criminal Records Act was enacted in 1970, a $50 user fee for pardons was not introduced until 1994/1995. The Board states that “it was determined at that time that a $50 fee was reasonable and appropriate, reflecting the potential benefit received by pardon recipients without imposing undue financial hardship.”[17] However, since that time, the Board “has experienced high volumes of pardon applications with limited capacity to respond.”[18] This has resulted in backlogs of pardon applications, followed by temporary solutions to eliminate the backlog, followed by a re-emergence of backlogs.

In its proposal, the Board also states that it has historically received an average of 20,000 pardon applications per year. However, in 2007/2008, it received 30,400 applications per year, with expectations that the number of pardon applications will only continue to increase in the future because of:

§  greater scrutiny by government, private and voluntary sectors of potential employees;

§   the increased significance of a pardon for employment and travel;

§  active advertising campaigns by private sector organizations involved in aiding pardon applicants; and

§  the increasing number of people eligible to apply for a pardon.[19]

In addition, the Board notes in its proposal that costs to process a pardon application have increased considerably since the introduction of the $50 user fee in 1994/1995. Increased costs are attributable to:

§  salary increases for employees;

§  the impacts of inflation;

§  higher costs due to higher workload volumes;

§  the impact of workload growth including staff requirements – more people, more supervision, more office space, more administrative overhead; and

§  a more comprehensive costing methodology (based on Treasury Board policy) that is broader in scope and involves new cost elements.[20]

In order for the pardons program to be sustainable (in other words, in order for the Board to provide pardons in a timely and cost effective manner), the Board proposes a fee increase of $100, effectively increasing the amount collected from applicants for processing of their pardon applications from $50 to $150. The Board also advised that, if the user fee increase is approved, $135 of this fee will be given to the Board and $15 to the Royal Canadian Mounted Police for its role in the pardons process.[21]

 

C.    The Consultation Process

In addition to providing details regarding the amount of the proposed fee increase and why the Board is seeking to increase the applications fee for pardons at this time, the National Parole Board User Fee Proposal also provides some general information regarding the consultation process it followed in developing its proposal.

Section 4(1) of the User Fees Act sets out consultation requirements that regulating authorities are required to follow before fixing, increasing, expanding the application of or increasing the duration of a user fee. It states:

4. (1) Before a regulating authority fixes, increases, expands the application of or increases the duration of a user fee, it must

(a) take reasonable measures to notify clients, and other regulating authorities with a similar clientele of the user fee proposed to be fixed, increased, expanded in application or increased in duration;

(b) give all clients or service users a reasonable opportunity to provide ideas or proposals for ways to improve the services to which the user fee relates;

(c) conduct an impact assessment to identify relevant factors, and take into account its findings in a decision to fix or change the user fee;

(d) explain to clients clearly how the user fee is determined and identify the cost and revenue elements of the user fee;

(e) establish an independent advisory panel to address a complaint submitted by a client regarding the user fee or change; and

(f) establish standards which are comparable to those established by other countries with which a comparison is relevant and against which the performance of the regulating authority can be measured.

In addition, section 4(3) of the User Fees Act states that if the user fee being proposed is higher than that existing in a country with which a comparison has been made, the Minister in charge of the regulating authority (in this case the Minister of Public Safety) must give reasons for the difference.

In its 27 September 2010 proposal, the Board advised that it consulted with the following government departments or agencies in developing its user fee proposal: the RCMP, the Correctional Service of Canada, National Defence, Status of Women Canada, Service Canada, the Treasury Board Secretariat, and the Office of the Comptroller General. With respect to the input received from these departments or agencies, the Board stated:

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.[22]

However, the Board’s proposal indicates that it did not attempt to meet directly with clients who might be affected by the fee increase, such as offenders who might attempt to seek pardons in the future, or persons who have received pardons in the past. In this regard, the Board stated that:

[p]revious attempts by the NPB [National Parole 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 friends or family.[23]

Instead of consulting directly with offenders or past pardon recipients, the Board consulted 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. Member organizations of the NAACJ include the Canadian Bar Association, the Association des services de réhabilitation sociale du Québec (ASRSQ), the Block Parent Program of Canada, the Canadian Association of Elizabeth Fry Societies, and the John Howard Society of Canada, among other groups. According to the proposal, the feedback that the Board received from the NAACJ was that the Board needed to ensure that pardon applications are processed in a timely matter, simplify the pardons application process and take steps to enhance the information available to the public regarding pardons.[24]

The Board indicated that it also attempted to engage in e-consultations regarding the proposed user fee increase, but only received three responses, two which were opposed to the fee increase and one which was in favour of it. Since no “complaint” submitted by a client was received by the Board, it concluded that there was no requirement to convene an independent advisory panel, pursuant to section 4.1 of the User Fees Act.[25]

With respect to international comparisons conducted by the Board, the Board’s proposal states 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.[26]

 

WITNESSES THE COMMITTEE HEARD FROM

During its study of the National Parole Board User Fee Proposal, the committee heard from officials from the National Parole Board and a representative from the Canadian Association of Elizabeth Fry Societies, a non-governmental association that works with women and girls in the criminal justice system, many of whomh have been convicted of criminal offences.

 

WHAT THE COMMITTEE HEARD

 

When officials from the Board appeared before the committee on 6 October 2010, they provided some additional information and clarifications regarding both the proposal itself, as well as the consultation process the Board followed in developing it. The Canadian Association of Elizabeth Fry Societies also provided some additional information regarding the role they played in the consultation process.

 

A.    Additional Reasons for the Proposed Fee Increase and Funds Earned from the Current Fee Collected

Firstly, the officials from the Board advised that applications for pardons have continued to increase and that in 2008–2009, the Board had received over 36,000 applications for pardons. Officials also advised that as a result of this continual increase in the number of pardon applications received each year, the Board has been forced to divert funds from its conditional release budget to address budget shortfalls in the pardons program. They further asserted that without an increase of the current user fee, the pardons program would be unsustainable. They also expressed the view that in light of the tremendous benefit a pardon conveys to individuals who receive them (particularly in terms of the timely access to gainful employment that pardons often provide to offenders) individuals will continue to apply for pardons, notwithstanding the fee increase.

Currently, of the $50 user fee the Board charges for pardon applications, the Board receives $35 of the fee, with $15 of the fee going to the RCMP. When asked how much money per year that Board gets from its portion of pardon application fees received, officials advised based on the number of applications it currently receives, the Board obtains approximately $850,000/year, whereas the total cost of administering the pardons program is approximately $5.6 million, including both direct and indirect costs. Direct costs of the program represent just under half of this amount, or $3.2 million.

With respect to a future potential proposal to increase user fees to cover the costs of the pardon’s program in the wake of the enactment of Bill C-23A, officials advised that in that proposal, the Board would be seeking to end the subsidization of pardon applications through use of tax dollars. In other words, the goal of the future proposal to increase user fees, which the Board is likely to submit in 2011–2012, would be to move towards a full cost recovery model.

 

B.     International Comparisons

When asked how the proposed user fee increase compares to the fee charged for pardons in other countries, Board officials indicated that there was really no basis for comparing Canada’s pardon application process to those of other countries. They advised that in the Commonwealth countries, for example, such as the United Kingdom, most states in Australia or in New Zealand, with persons convicted of most offences, particularly those that are less serious in nature, the conviction is considered “spent” after a certain period of time. In the United States, by contrast, the decision as to whether or not to pardon someone is made at the executive level, by the governor of a U.S. state, or by the President of the United States, and so once again, there is no pardon application process per se. Accordingly, the Board was unable to conduct an international comparison regarding fees charged for pardon applications.  

Officials were then asked if the Board had given any thought to adopting the model in the United Kingdom, Australia and New Zealand, at least as it pertains to summary conviction offences, and allowing offenders’ convictions to be considered spent after a predetermined period of time (i.e. an automatic granting of pardon), thereby eliminating the need for individuals convicted of summary conviction offences to apply for pardons and eliminating the need for the Board to process their applications. Such a change would also presumably reduce the Board’s costs in terms of processing pardon applications generally. The committee was informed by officials that while such proposals had been considered internally by the Board in the past, none of them have moved forward to the legislative level. Such a change in how pardons are processed would require changes to the Criminal Records Act, and as it is the job of the Board to follow the legislation, as written, the only way to make the pardons program sustainable at this time is to increase the user fees for pardons.

 

C.    Additional Information Regarding the Consultation Process and the Input Received from Stakeholders Input Received

With respect to consultations engaged in by the Board prior to putting forward its current proposal, the Board stated that, in addition to the government agencies it had consulted, and its consultations with the NAACJ, the Board had also consulted with the Federal Ombudsman for Victims of Crime, the Canadian Association of Chiefs of Police and the Canadian Federation of Municipalities. Officials were asked whether, during the Board’s consultations with the NAACJ, member organizations had questioned whether the fee increase would dissuade people from applying for pardons, or put pardons applications out of the financial reach of some applicants. Board officials advised that some member organizations did comment in this regard but nonetheless supported a sustainable pardons program. These organizations called on the Board to deliver improved processing times, simplify the application process for pardons, and enhance the information available to the public on pardons and the pardons application process if the Board was planning to increase the fee for pardons.

The officials further advised that the Board has already taken action to address some of the NAACJ’S comments, including beginning work on a simplified pardon application kit, and ensuring that print and electronic information regarding the pardons program generally was available in plain language.

The representative from the Canadian Association of Elizabeth Fry Societies provided a somewhat different perspective. According to her, the NAACJ thought that the fee increase was a “fait accompli,” and decided at that time to focus its energies on what could be done to mitigate the effects of the increase, such as asking for improvements to the pardons application process. When asked why the Board did not attempt to meet directly with its clients, officials advised the committee that there were privacy concerns involved in attempting to contact people who had received pardons or might be eligible to receive them in the future. There were also difficulties involved in knowing exactly which clients to contact, since not all persons eligible for pardons are or have been incarcerated, and therefore, relying on correctional records to determine a client base would not result in accurate data. The officials also pointed out that pursuant to sections 4(1)(a) and 4(1)(b) of the User Fees Act, the Board was obligated to take reasonable measures to notify clients of the proposed fee increase for pardon applications and afford them a reasonable opportunity to provide ideas or proposals for ways to improve the services to which the user fee relates.   

After consultations with the Board’s lawyers, and lawyers from the Department of Justice, Treasury Board and the Office of the Comptroller General, the Board determined that its consultations with the NAACJ, as well as the on-line consultation it hosted, met the criteria of reasonableness provided for in sections 4(1)(a) and 4(1)(b) of the Act.

The Board indicated in its National Parole Board User Fee Proposal that during its on-line consultation, it had posted information regarding the proposed user fee increase on its own website, seeking public comment. The Board said that this information was also sent to stakeholders and that the John Howard Society of Canada and the Canadian Association of Elizabeth Fry Societies also agreed to add a link to the National Parole Board’s pardons page or consultation site to their own websites.[27] The representative from the Canadian Association of Elizabeth Fry Societies stated that the only link that was placed on her organization’s website was a link to general information regarding the pardons application process found on the National Parole Board’s website.

 

THE COMMITTEE’S RECOMMENDATION REGARDING THE PROPOSAL

After reviewing the National Parole Board User Fee Proposal that was tabled in the Senate on 27 September 2010 and hearing further testimony from witnesses, the committee recommends as follows:

That, in accordance with section 5 of the User Fees Act, the Senate approve the proposed increase to the National Parole Board’s component of the pardon user fee from $35 to $135, which creates a total fee of $150 (including the RCMP’s component).

 

COMMITTEE OBSERVATIONS FOR FUTURE CONSIDERATION 

As stated elsewhere herein, the National Parole Board User Fee Proposal makes it clear that the Board’s current proposal to increase user fees from $50 to $150 per pardon application is an interim increase. The Board explicitly states in its current proposal that it will be tabling another proposal in Parliament in the near future (2011–2012), seeking an additional increase in user fees that would allow the Board to fully recover the direct and indirect costs of granting pardons under An Act to amend the Criminal Records Act (Limiting Pardons for Serious Crimes Act) (formerly Bill C-23A).

With that in mind, the committee encourages the Board to make the consultation process it undertakes prior to tabling a proposal in Parliament to fully recover the costs of granting pardons under An Act to amend the Criminal Records Act (Limiting Pardons for Serious Crimes Act) as comprehensive as possible. The Board should take steps, at that time, to ensure that individuals who might be directly affected by an additional user fee increase, such as individuals who have received pardons in the past or who may be eligible to receive them in the future, are, to the extent reasonably possible, both informed of the amount of the proposed increase and afforded an opportunity to submit comments or complaints regarding the proposal. In engaging in future consultation processes, the Board should not regard itself limited or constrained by the consultation process that it engaged in before tabling its current user fee proposal in Parliament.