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Criminal - Royal Prerogative of Mercy

. R. v. Bissonnette

In R. v. Bissonnette (SCC, 2022) the Supreme Court of Canada considered the rarely used 'royal prerogative of mercy', which is a right held by the Govenor-General to remit a criminal sentence:
(e) Can the Royal Prerogative of Mercy Save the Impugned Provision?

[112] Lastly, it is necessary to determine whether the impugned provision can be found to be constitutional based on the existence of the royal prerogative of mercy, since there is some debate over this question. In my view, the parole system is currently the only mechanism that offers a realistic possibility of release for individuals serving a sentence of life imprisonment under Canadian law. The royal prerogative of mercy cannot be considered a true sentence review mechanism, because it is exercised only in exceptional circumstances.

[113] The royal prerogative of mercy gives Her Majesty the Queen an absolute discretion to grant a remission of sentence to any individual sentenced by a court, regardless of the nature or seriousness of the crime committed (ss. 748 and 749 Cr. C.). This prerogative arises from the former absolute power of British monarchs to pardon their subjects. Historically, the royal prerogative has had two strands and two objectives: “to show compassion by relieving an individual of the full weight of his or her sentence” and “to correct miscarriages of justice such as wrongful convictions” (Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621, at para. 28). Before the death penalty was abolished, the royal prerogative was often used to commute that sentence (C. Strange, “Mercy for Murderers? A Historical Perspective on the Royal Prerogative of Mercy” (2001), 64 Sask. L. Rev. 559, at p. 561).

[114] The power to exercise this prerogative has been conferred on the person holding office as Governor General of Canada by Letters Patent (Letters Patent Constituting the Office of Governor General of Canada (1947), Canada Gazette, Part I, vol. 81, p. 3014, s. XII (reproduced in R.S.C. 1985, App. II, No. 31)). The Governor General acts only on the advice of the Minister of Public Safety and Emergency Preparedness Canada, or that of at least one other minister (Parole Board of Canada, Royal Prerogative of Mercy Ministerial Guidelines, October 31, 2014 (online), at p. 2). The Governor General may grant two types of pardons: a free pardon and a conditional pardon (s. 748(2) Cr. C.).

[115] The royal prerogative of mercy is exercised “only [in] rare cases in which consideration[s] of justice, humanity and compassion override the normal administration of justice” (Ministerial Guidelines, at pp. 4‑5). For a pardon to be granted, there must be exceptional circumstances involving substantial injustice or undue hardship (pp. 3‑5). The Ministerial Guidelines state that pardons are available only in “truly deserving cases” (p. 3). Although it is difficult to calculate how many applications for the exercise of the royal prerogative of mercy have been granted, it would seem that the number is very limited (as an illustration, from 2014‑2015 to 2018‑2019, 5 applications were granted, 3 were denied and 175 were discontinued (Parole Board of Canada, Performance Monitoring Report 2018‑2019, at p. 170)).

[116] This Court has established that the royal prerogative of mercy is part of the array of mechanisms by which the principle of individualization in sentencing is given effect (Luxton, at p. 725). However, it has never found that this discretion on its own constitutes a true sentence review mechanism. On the contrary, in Luxton, to support its conclusion that the sentence of imprisonment for life without eligibility for parole for 25 years is constitutional, the Court simply stated that the royal prerogative, like escorted absences from custody for humanitarian purposes, demonstrates that “Parliament has been sensitive to the particular circumstances of each offender” (p. 725). In R. v. Heywood, 1994 CanLII 34 (SCC), [1994] 3 S.C.R. 761, which concerned the constitutionality of a provision that limited, for life, the freedom of offenders convicted of sexual offences to be in various public places, on pain of imprisonment, this Court held that the royal prerogative of mercy does not constitute an “acceptable review process” because it is used only exceptionally (p. 798). The Court has instead found this discretion to be a mechanism of last resort in the case of unjust imprisonment (R. v. Sarson, 1996 CanLII 200 (SCC), [1996] 2 S.C.R. 223, at para. 51; R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3, at para. 89).

[117] The royal prerogative of mercy in Canadian law can be distinguished from the power of the Secretary of State in English law to release prisoners on compassionate grounds under s. 30 of the Crime (Sentences) Act 1997. In 2014, a special constitution of the Court of Appeal of England and Wales held in McLoughlin that the law of England provides life prisoners with a realistic possibility of release (para. 35). The court found that the term “compassionate grounds” must be interpreted broadly, in a manner compatible with art. 3 of the European Convention on Human Rights, and that these grounds are not restricted to the ones listed in the “Lifer Manual” (McLoughlin, at paras. 31‑33; United Kingdom, Ministry of Justice, National Offender Management Service, PSO 4700 — The Indeterminate Sentence Manual (2010), at ch. 12). In 2017, the ECHR held in Hutchinson that English law is consistent with art. 3 of the European Convention on Human Rights because it establishes a true review mechanism that makes whole life prison sentences reducible (§§ 57, 70 and 72). The ECHR found that the Secretary of State has a duty to release a whole life prisoner where “continued detention can no longer be justified on legitimate penological grounds” (Hutchinson, at § 70). It would therefore seem that this discretion is broadly construed in English law. As a result, these principles are not relevant in interpreting the discretion conferred by the royal prerogative of mercy in Canadian law.

[118] In short, the royal prerogative of mercy, because of its exceptional nature, is at best a release mechanism based on compassion and on the existence of humanitarian grounds under Canadian law. Individuals suffering the normal consequences of a properly imposed sentence are in fact unlikely to obtain such a pardon. This is clear from the Ministerial Guidelines: “. . . 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” (p. 4 (emphasis added); Sup. Ct. reasons, at paras. 963 and 967). The existence of the royal prerogative of mercy therefore creates no realistic possibility of parole for offenders serving a sentence of imprisonment for life for which there is no other review mechanism.


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