Delayed Parole Eligibility

From Canadian Criminal Law Notebook
Jump to: navigation, search

General Principles

See also: Parole

The court has the power under s. 743.6 to delay the eligibility of parole to either one half of the global sentence or 10 years, whichever is less.

Power of court to delay parole
743.6 (1) Notwithstanding subsection 120(1) of the Corrections and Conditional Release Act, where an offender receives, on or after November 1, 1992, a sentence of imprisonment of two years or more, including a sentence of imprisonment for life imposed otherwise than as a minimum punishment, on conviction for an offence set out in Schedule I or II to that Act that was prosecuted by way of indictment, the court may, if satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence so requires, order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less.
Power of court to delay parole
(1.1) Notwithstanding section 120 of the Corrections and Conditional Release Act, where an offender receives a sentence of imprisonment of two years or more, including a sentence of imprisonment for life imposed otherwise than as a minimum punishment, on conviction for a criminal organization offence other than an offence under section 467.11[1], 467.111[2], 467.12[3] or 467.13[4], the court may order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less.
Power of court to delay parole
(1.2) Notwithstanding section 120 of the Corrections and Conditional Release Act, where an offender receives a sentence of imprisonment of two years or more, including a sentence of imprisonment for life, on conviction for a terrorism offence or an offence under section 467.11[5], 467.111[6], 467.12[7] or 467.13[8], the court shall order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less, unless the court is satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence and the objectives of specific and general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act.
Principles that are to guide the court
(2) For greater certainty, the paramount principles which are to guide the court under this section are denunciation and specific or general deterrence, with rehabilitation of the offender, in all cases, being subordinate to these paramount principles.
1995, c. 22, s. 6, c. 42, s. 86; 1997, c. 23, s. 18; 2001, c. 32, s. 45, c. 41, ss. 21, 133; 2014, c. 17, ss. 15, 16.
[annotations added]


CCC

The test for delayed release is whether the court is "satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence so requires, order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less."[9]

Any consideration of applying this section must conform with procedural fairness and permit the defence an opportunity to respond to the application. Where possible notice should be given to defence in advance.[10]

A failure of a jury to make a recommendation on parole ineligibility does not restrict a judge from making a decision on parole ineligibility who always has the final say on sentence. [11]

Eligible Offences

Schedule I and II of the Corrections and Conditional Release Act, SC 1992, c 20, lists the eligible offences.

SCHEDULE I

(Subsections 107(1), 129(1) and (2), 130(3) and (4), 133(4.1) and 156(3))

1. An offence under any of the following provisions of the Criminal Code, that was prosecuted by way of indictment:

(a) sections 46 and 47 (high treason);
(a.01) section 75 (piratical acts);
(a.1) section 76 (hijacking);
(a.2) section 77 (endangering safety of aircraft or airport);
(a.3) section 78.1 (seizing control of ship or fixed platform);
(a.4) paragraph 81(1)(a), (b) or (d) (use of explosives);
(a.5) paragraph 81(2)(a) (causing injury with intent);
(a.6) section 83.18 (participation in activity of terrorist group);
(a.7) section 83.19 (facilitating terrorist activity);
(a.8) section 83.2 (commission of offence for terrorist group);
(a.9) section 83.21 (instructing to carry out activity for terrorist group);
(a.91) section 83.22 (instructing to carry out terrorist activity);
(b) subsection 85(1) (using firearm in commission of offence);
(b.1) subsection 85(2) (using imitation firearm in commission of offence);
(c) section 87 (pointing a firearm);
(c.1) section 98 (breaking and entering to steal firearm);
(c.2) section 98.1 (robbery to steal firearm);
(d) section 144 (prison breach);
(e) section 151 (sexual interference);
(f) section 152 (invitation to sexual touching);
(g) section 153 (sexual exploitation);
(g.1) section 153.1 (sexual exploitation of person with disability);
(h) section 155 (incest);
(i) section 159 (anal intercourse);
(j) section 160 (bestiality, compelling, in presence of or by child);
(j.1) section 163.1 (child pornography);
(k) section 170 (parent or guardian procuring sexual activity by child);
(l) section 171 (householder permitting sexual activity by or in presence of child);
(m) section 172 (corrupting children);
(m.1) section 172.1 (luring a child);
(n) subsection 212(2) (living off the avails of prostitution by a child);
(n.1) subsection 212(2.1) (aggravated offence in relation to living on the avails of prostitution of a person under the age of 18 years);
(o) subsection 212(4) (obtaining sexual services of a child);
(o.1) section 220 (causing death by criminal negligence);
(o.2) section 221 (causing bodily harm by criminal negligence);
(p) section 236 (manslaughter);
(q) section 239 (attempt to commit murder);
(r) section 244 (discharging firearm with intent);
(r.1) section 244.1 (causing bodily harm with intent — air gun or pistol);
(r.2) section 244.2 (discharging firearm — recklessness);
(r.3) section 245 (administering noxious thing);
(s) section 246 (overcoming resistance to commission of offence);
(s.01) section 247 (traps likely to cause bodily harm);
(s.02) section 248 (interfering with transportation facilities);
(s.1) subsections 249(3) and (4) (dangerous operation causing bodily harm and dangerous operation causing death);
(s.11) subsections 249.1(3) and (4) (flight causing bodily harm or death);
(s.12) section 249.2 (causing death by criminal negligence (street racing));
(s.13) section 249.3 (causing bodily harm by criminal negligence (street racing));
(s.14) section 249.4 (dangerous operation of motor vehicle while street racing);
(s.2) subsections 255(2) and (3) (impaired driving causing bodily harm and impaired driving causing death);
(s.3) section 264 (criminal harassment);
(s.4) section 264.1 (uttering threats);
(t) section 266 (assault);
(u) section 267 (assault with a weapon or causing bodily harm);
(v) section 268 (aggravated assault);
(w) section 269 (unlawfully causing bodily harm);
(w.1) section 269.1 (torture);
(x) section 270 (assaulting a peace officer);
(x.1) section 270.01 (assaulting peace officer with weapon or causing bodily harm);
(x.2) section 270.02 (aggravated assault of peace officer);
(y) section 271 (sexual assault);
(z) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm);
(z.1) section 273 (aggravated sexual assault);
(z.11) section 273.3 (removal of child from Canada);
(z.2) section 279 (kidnapping and forcible confinement);
(z.21) section 279.1 (hostage taking);
(z.3) sections 343 and 344 (robbery);
(z.301) section 346 (extortion);
(z.31) subsection 430(2) (mischief that causes actual danger to life);
(z.32) section 431 (attack on premises, residence or transport of internationally protected person);
(z.33) section 431.1 (attack on premises, accommodation or transport of United Nations or associated personnel);
(z.34) subsection 431.2(2) (explosive or other lethal device);
(z.4) section 433 (arson — disregard for human life);
(z.5) section 434.1 (arson — own property);
(z.6) section 436 (arson by negligence); and
(z.7) paragraph 465(1)(a) (conspiracy to commit murder).

2. An offence under any of the following provisions of the Criminal Code, as they read immediately before July 1, 1990, that was prosecuted by way of indictment:

(a) section 433 (arson);
(b) section 434 (setting fire to other substance); and
(c) section 436 (setting fire by negligence).

3. An offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read immediately before January 4, 1983, that was prosecuted by way of indictment:

(a) section 144 (rape);
(b) section 145 (attempt to commit rape);
(c) section 149 (indecent assault on female);
(d) section 156 (indecent assault on male);
(e) section 245 (common assault); and
(f) section 246 (assault with intent).

4. An offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read immediately before January 1, 1988, that was prosecuted by way of indictment:

(a) section 146 (sexual intercourse with a female under 14);
(b) section 151 (seduction of a female between 16 and 18);
(c) section 153 (sexual intercourse with step-daughter);
(d) section 155 (buggery or bestiality);
(e) section 157 (gross indecency);
(f) section 166 (parent or guardian procuring defilement); and
(g) section 167 (householder permitting defilement).

5. The offence of breaking and entering a place and committing an indictable offence therein, as provided for by paragraph 348(1)(b) of the Criminal Code, where the indictable offence is an offence set out in sections 1 to 4 of this Schedule and its commission

(a) is specified in the warrant of committal;
(b) is specified in the Summons, Information or Indictment on which the conviction has been registered;
(c) is found in the reasons for judgment of the trial judge; or
(d) is found in a statement of facts admitted into evidence pursuant to section 655 of the Criminal Code.

5.1 If prosecuted by way of indictment, the offence of pointing a firearm, as provided for by subsection 86(1) of the Criminal Code, as it read immediately before December 1, 1998.

6. An offence under any of the following provisions of the Crimes Against Humanity and War Crimes Act:

(a) section 4 (genocide, etc., committed in Canada);
(b) section 5 (breach of responsibility committed in Canada by military commanders or other superiors);
(c) section 6 (genocide, etc., committed outside Canada); and
(d) section 7 (breach of responsibility committed outside Canada by military commanders or other superiors).

1992, c. 20, Sch. I; 1995, c. 39, s. 165, c. 42, ss. 64 to 67; 2000, c. 24, s. 41; 2001, c. 41, ss. 91 to 93; 2008, c. 6, s. 57; 2011, c. 11, s. 8; 2012, c. 1, ss. 103, 104.


SCHEDULE II

(Subsections 107(1), 129(1), (2) and (9), 130(3) and (4) and 156(3))

1. An offence under any of the following provisions of the Narcotic Control Act, as it read immediately before the day on which section 64 of the Controlled Drugs and Substances Act came into force, that was prosecuted by way of indictment:

(a) section 4 (trafficking);
(b) section 5 (importing and exporting);
(c) section 6 (cultivation);
(d) section 19.1 (possession of property obtained by certain offences); and
(e) section 19.2 (laundering proceeds of certain offences).

2. An offence under any of the following provisions of the Food and Drugs Act, as it read immediately before the day on which section 64 of the Controlled Drugs and Substances Act came into force, that was prosecuted by way of indictment:

(a) section 39 (trafficking in controlled drugs);
(b) section 44.2 (possession of property obtained by trafficking in controlled drugs);
(c) section 44.3 (laundering proceeds of trafficking in controlled drugs);
(d) section 48 (trafficking in restricted drugs);
(e) section 50.2 (possession of property obtained by trafficking in restricted drugs); and
(f) section 50.3 (laundering proceeds of trafficking in restricted drugs).

3. An offence under any of the following provisions of the Controlled Drugs and Substances Act that was prosecuted by way of indictment:

(a) section 5 (trafficking);
(b) section 6 (importing and exporting);
(c) section 7 (production).
(d) and (e) [Repealed, 2001, c. 32, s. 57]

4. The offence of conspiring, as provided by paragraph 465(1)(c) of the Criminal Code, to commit any of the offences referred to in items 1 to 3 of this schedule.

1992, c. 20, Sch. II; 1995, c. 42, s. 68; 1996, c. 19, s. 64; 2001, c. 32, s. 57; 2011, c. 11, s. 9.


Murder

See also: Homicide (Sentencing Cases)

For the offence of murder, there is a mandatory period of parole ineligibility. On a charge of first degree murder the period of parole ineligibility is set at 25 years.

When considering whether to make an order under s. 745.4, the judge "may consider the future dangerousness of the offence and denunciation, as well as deterrence".[1]

Section 745.4 states:

Ineligibility for parole
745.4 Subject to section 745.5, at the time of the sentencing under section 745 of an offender who is convicted of second degree murder, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, if any, made pursuant to section 745.2, by order, substitute for ten years a number of years of imprisonment (being more than ten but not more than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances.
1995, c. 22, s. 6.


Idem
745.5 At the time of the sentencing under section 745.1 of an offender who is convicted of first degree murder or second degree murder and who was under the age of sixteen at the time of the commission of the offence, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court, may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, if any, made pursuant to section 745.3, by order, decide the period of imprisonment the offender is to serve that is between five years and seven years without eligibility for parole, as the judge deems fit in the circumstances.
1995, c. 22, ss. 6, 23.


CCC

Ranges
On a charge of second degree murder, the period of parole ineligibility is discretionary as between 10 and 25 years.[2]

  1. R v Shropshire, [1995] 4 SCR 227, 1995 CanLII 47 (SCC)
  2. see s. 745(c)

Multiple Murders

Ineligibility for parole — multiple murders
745.51 (1) At the time of the sentencing under section 745 of an offender who is convicted of murder and who has already been convicted of one or more other murders, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and the recommendation, if any, made pursuant to section 745.21, by order, decide that the periods without eligibility for parole for each murder conviction are to be served consecutively.
Reasons
(2) The judge shall give, either orally or in writing, reasons for the decision to make or not to make an order under subsection (1).
Application
(3) Subsections (1) and (2) apply to an offender who is convicted of murders committed on a day after the day on which this section comes into force and for which the offender is sentenced under this Act, the National Defence Act or the Crimes Against Humanity and War Crimes Act.
2011, c. 5, s. 5.


CCC

Judicial Review

See Also