History of Judicial Review of Parole Ineligibility for Murder

From Criminal Law Notebook
Jump to navigation Jump to search

1997 to 2011

See also: Judicial Review of Parole Ineligibility for Murder
Application for judicial review

745.6 (1) Subject to subsection (2), a person may apply, in writing, to the appropriate Chief Justice in the province in which their conviction took place for a reduction in the number of years of imprisonment without eligibility for parole if the person

(a) has been convicted of murder or high treason;
(b) has been sentenced to imprisonment for life without eligibility for parole until more than fifteen years of their sentence has been served; and
(c) has served at least fifteen years of their sentence.
Exception — multiple murderers

(2) A person who has been convicted of more than one murder may not make an application under subsection (1), whether or not proceedings were commenced in respect of any of the murders before another murder was committed.

Definition of “appropriate Chief Justice”

(3) For the purposes of this section and sections 745.61 to 745.64, the “appropriate Chief Justice” is

(a) in relation to the Province of Ontario, the Chief Justice of the Ontario Court;
(b) in relation to the Province of Quebec, the Chief Justice of the Superior Court;
(c) in relation to the Provinces of Prince Edward Island and Newfoundland, the Chief Justice of the Supreme Court, Trial Division;
(d) in relation to the Provinces of New Brunswick, Manitoba, Saskatchewan and Alberta, the Chief Justice of the Court of Queen’s Bench;
(e) in relation to the Provinces of Nova Scotia and British Columbia, the Chief Justice of the Supreme Court; and
(f) in relation to the Yukon Territory, the Northwest Territories and Nunavut, the Chief Justice of the Court of Appeal thereof.

1993, c. 28, s. 78; 1995, c. 22, s. 6; 1996, c. 34, s. 2; 1998, c. 15, s. 20.

CCC

Judicial screening

745.61 (1) On receipt of an application under subsection 745.6(1), the appropriate Chief Justice shall determine, or shall designate a judge of the superior court of criminal jurisdiction to determine, on the basis of the following written material, whether the applicant has shown, on a balance of probabilities, that there is a reasonable prospect that the application will succeed:

(a) the application;
(b) any report provided by the Correctional Service of Canada or other correctional authorities; and
(c) any other written evidence presented to the Chief Justice or judge by the applicant or the Attorney General.
Criteria

(2) In determining whether the applicant has shown that there is a reasonable prospect that the application will succeed, the Chief Justice or judge shall consider the criteria set out in paragraphs 745.63(1)(a) to (e), with such modifications as the circumstances require.

Decision re new application

(3) If the Chief Justice or judge determines that the applicant has not shown that there is a reasonable prospect that the application will succeed, the Chief Justice or judge may

(a) set a time, not earlier than two years after the date of the determination, at or after which another application may be made by the applicant under subsection 745.6(1); or
(b) decide that the applicant may not make another application under that subsection.
Where no decision re new application

(4) If the Chief Justice or judge determines that the applicant has not shown that there is a reasonable prospect that the application will succeed but does not set a time for another application or decide that such an application may not be made, the applicant may make another application no earlier than two years after the date of the determination.

Designation of judge to empanel jury

(5) If the Chief Justice or judge determines that the applicant has shown that there is a reasonable prospect that the application will succeed, the Chief Justice shall designate a judge of the superior court of criminal jurisdiction to empanel a jury to hear the application.
1996, c. 34, s. 2.

CCC

Appeal

745.62 (1) The applicant or the Attorney General may appeal to the Court of Appeal from a determination or a decision made under section 745.61 on any question of law or fact or mixed law and fact.

Documents to be considered

(2) The appeal shall be determined on the basis of the documents presented to the Chief Justice or judge who made the determination or decision, any reasons for the determination or decision and any other documents that the Court of Appeal requires.

Sections to apply

(3) Sections 673 to 696 apply, with such modifications as the circumstances require.
1996, c. 34, s. 2.

CCC

Hearing of application

745.63 (1) The jury empanelled under subsection 745.61(5) to hear the application shall consider the following criteria and determine whether the applicant’s number of years of imprisonment without eligibility for parole ought to be reduced:

(a) the character of the applicant;
(b) the applicant’s conduct while serving the sentence;
(c) the nature of the offence for which the applicant was convicted;
(d) any information provided by a victim at the time of the imposition of the sentence or at the time of the hearing under this section; and
(e) any other matters that the judge considers relevant in the circumstances.
Information provided by victim

(1.1) Information provided by a victim referred to in paragraph (1)(d) may be provided either orally or in writing, at the discretion of the victim, or in any other manner that the judge considers appropriate.

Definition of “victim”

(2) In paragraph (1)(d), “victim” has the same meaning as in subsection 722(4).

Reduction

(3) The jury hearing an application under subsection (1) may determine that the applicant’s number of years of imprisonment without eligibility for parole ought to be reduced. The determination to reduce the number of years must be by unanimous vote.

No reduction

(4) The applicant’s number of years of imprisonment without eligibility for parole is not reduced if

(a) the jury hearing an application under subsection (1) determines that the number of years ought not to be reduced;
(b) the jury hearing an application under subsection (1) concludes that it cannot unanimously determine that the number of years ought to be reduced; or
(c) the presiding judge, after the jury has deliberated for a reasonable period, concludes that the jury is unable to unanimously determine that the number of years ought to be reduced.
Where determination to reduce number of years

(5) If the jury determines that the number of years of imprisonment without eligibility for parole ought to be reduced, the jury may, by a vote of not less than two thirds of the members of the jury,

(a) substitute a lesser number of years of imprisonment without eligibility for parole than that then applicable; or
(b) terminate the ineligibility for parole.
Decision re new application

(6) If the applicant’s number of years of imprisonment without eligibility for parole is not reduced, the jury may

(a) set a time, not earlier than two years after the date of the determination or conclusion under subsection (4), at or after which another application may be made by the applicant under subsection 745.6(1); or
(b) decide that the applicant may not make another application under that subsection.
Two-thirds decision

(7) The decision of the jury under paragraph (6)(a) or (b) must be made by not less than two thirds of its members.

If no decision re new application

(8) If the jury does not set a date at or after which another application may be made or decide that such an application may not be made, the applicant may make another application no earlier than two years after the date of the determination or conclusion under subsection (4).
1996, c. 34, s. 2; 1999, c. 25, s. 22(Preamble).

CCC

Rules

745.64 (1) The appropriate Chief Justice in each province or territory may make such rules as are required for the purposes of sections 745.6 to 745.63.

Territories

(2) When the appropriate Chief Justice is designating a judge of the superior court of criminal jurisdiction, for the purpose of a judicial screening under subsection 745.61(1) or to empanel a jury to hear an application under subsection 745.61(5), in respect of a conviction that took place in the Yukon Territory, the Northwest Territories or Nunavut, the appropriate Chief Justice may designate the judge from the Court of Appeal of the Yukon Territory, the Northwest Territories or Nunavut, or the Supreme Court of the Yukon Territory or the Northwest Territories or the Nunavut Court of Justice, as the case may be.
1996, c. 34, s. 2; 1999, c. 3, s. 53.

CCC


Time spent in custody

746 In calculating the period of imprisonment served for the purposes of section 745, 745.1, 745.4, 745.5 or 745.6, there shall be included any time spent in custody between

(a) in the case of a sentence of imprisonment for life after July 25, 1976, the day on which the person was arrested and taken into custody in respect of the offence for which that person was sentenced to imprisonment for life and the day the sentence was imposed; or
(b) in the case of a sentence of death that has been or is deemed to have been commuted to a sentence of imprisonment for life, the day on which the person was arrested and taken into custody in respect of the offence for which that person was sentenced to death and the day the sentence was commuted or deemed to have been commuted to a sentence of imprisonment for life.


R.S., 1985, c. C-46, s. 746; 1995, c. 19, s. 41, c. 22, ss. 6, 24.

CCC

Parole prohibited

746.1 (1) Unless Parliament otherwise provides by an enactment making express reference to this section, a person who has been sentenced to imprisonment for life without eligibility for parole for a specified number of years pursuant to this Act shall not be considered for parole or released pursuant to a grant of parole under the Corrections and Conditional Release Act or any other Act of Parliament until the expiration or termination of the specified number of years of imprisonment.

Absence with or without escort and day parole

(2) Subject to subsection (3), in respect of a person sentenced to imprisonment for life without eligibility for parole for a specified number of years pursuant to this Act, until the expiration of all but three years of the specified number of years of imprisonment,

(a) no day parole may be granted under the Corrections and Conditional Release Act;
(b) no absence without escort may be authorized under that Act or the Prisons and Reformatories Act; and
(c) except with the approval of the National Parole Board, no absence with escort otherwise than for medical reasons or in order to attend judicial proceedings or a coroner’s inquest may be authorized under either of those Acts.
Young offenders

(3) In the case of any person convicted of first degree murder or second degree murder who was under the age of eighteen at the time of the commission of the offence and who is sentenced to imprisonment for life without eligibility for parole for a specified number of years pursuant to this Act, until the expiration of all but one fifth of the period of imprisonment the person is to serve without eligibility for parole,

(a) no day parole may be granted under the Corrections and Conditional Release Act;
(b) no absence without escort may be authorized under that Act or the Prisons and Reformatories Act; and
(c) except with the approval of the National Parole Board, no absence with escort otherwise than for medical reasons or in order to attend judicial proceedings or a coroner’s inquest may be authorized under either of those Acts.

1995, c. 22, s. 6, c. 42, s. 87; 1997, c. 17, s. 2.
747. [Repealed, 1995, c. 22, s. 6]

CCC

1989(?) to 1993

In 1989 s. 672 becomes s. 745.

745(1) Where a person has served at least fifteen years of his sentence

(a) in the case of a person who has been convicted of high treason or first degree murder, or
(b) in the case of a person convicted of second degree murder who has been sentenced to imprisonment for life without eligibility for parole until he has served more than fifteen years of his sentence,

he may apply to the appropriate Chief Justice in the province in which the conviction took place for a reduction in his number of years of imprisonment without eligibility for parole.

(2) Upon receipt of an application under subsection (1), the appropriate Chief Justice shall designate a judge of the superior court of criminal jurisdiction to empanel a jury to hear the application and determine whether the applicant's number of years of imprisonment without eligibility for parole ought to be reduced having regard to the character of the applicant, his conduct while serving his sentence, the nature of the offence for which he was convicted and such other matters as the judge deems relevant in the circumstances and the determination shall be made by no less than two-thirds of the jury.

(3) Where the jury hearing an application under subsection (1) determines that the applicant's number of years of imprisonment without eligibility for parole ought not to be reduced, the jury shall set another time at or after which an application may again be made by the applicant to the appropriate Chief Justice for a reduction in his number of years of imprisonment without eligibility for parole.

(4) Where the jury hearing an application under subsection (1) determines that the applicant's number of years of imprisonment without eligibility for parole ought to be reduced, the jury may, by order,

(a) substitute a lesser number of years of imprisonment without eligibility for parole than that then applicable; or
(b) terminate the ineligibility for parole.

[ CCC]

1976 to 1988

On July 6, 1976, the provisions of judicial review of parole ineligibility for murder were first introduced.[1]

Application for Judicial Review

672 (1) Where a person has served at least fifteen years of his sentence

(a) in the case of a person who has been convicted of high treason or first degree murder, or
(b) in the case of a person convicted of second degree murder who has been sentenced to imprisonment for life without eligibility for parole until he has served more than fifteen years of his sentence, he may apply to the appropriate Chief Justice in the province or territory in which the conviction took place for a reduction in his number of years of imprisonment without eligibility for parole.
Judicial Hearing

(2) Upon receipt of an application under subsection (1), the appropriate Chief Justice shall designate a judge of the superior court of criminal jurisdiction to empanel a jury to hear the application and determine whether the applicant’s number of years of imprisonment without eligibility for parole ought to be reduced having regard to the character of the applicant, his conduct while serving his sentence, the nature of the offence for which he was convicted and such other matters as the judge deems relevant in the circumstances and such determination shall be made by no less than two-thirds of such jury.

Renewal of Application

(3) Where the jury hearing an application under subsection I determine that the applicant’s number of years of imprisonment without eligibility for parole ought not to be reduced, the jury shall set another time at or after which an application may again be made by the applicant to the appropriate Chief Justice for a reduction in his number of years of imprisonment without eligibility for parole.

Reduction

(4) Where the jury hearing an application under subsection (1) determine that the applicant’s number of years of imprisonment without eligibility for parole ought to be reduced, the jury may, by order,

(a) substitute a lesser number of years of imprisonment without eligibility for parole than that then applicable; or
(b) terminate the ineligibility for parole.
Rules

(5) The appropriate Chief Justice in each province or territory may make such rules in respect of applications and hearings under this section as are required for the purposes of this section.

Appropriate Chief Justice

(6) For the purposes of this section, the "appropriate Chief Justice" is a

(a) in relation to
(i) the Provinces of British Columbia and Prince Edward Island, respectively, the Chief Justice of the Supreme Court,
(ii) the Provinces of Nova Scotia and Newfoundland, respectively, the Chief Justice of the Supreme Court, Trial Division,
(iii) the Provinces of Saskatchewan, Manitoba, Alberta and New Brunswick, respectively, the Chief Justice of the Court of the Queen’s Bench,
(iv) (Repealed. 1978-79, c. 11, s. 10(1).)
(v) the Province of Ontario, the Chief Justice of the High Court of Justice, and
(vi) the Province of Quebec, the Chief Justice of the Superior Court; 1978-79, c. Ll, s. 1O(1).
(b) in relation to the Yukon Territory, the Chief Justice of the Court of Appeal thereof; and
(c) in relation to the Northwest Territories, the Chief Justice of the Court of Appeal thereof.
Territories

(7) For the purposes of this section, when the appropriate Chief Justice is designating a judge of the superior court of criminal jurisdiction to empanel a jury to hear an application in respect of a conviction that took place in the Yukon Territory or the Northwest Territories, the appropriate Chief Justice may designate the judge from the Court of Appeal or the Supreme Court of the Yukon Territory or Northwest Territories, as the case may be.

[ CCC]

Time Spent in Custody

673 In calculating the period of imprisonment served for the purposes of section 669, 671, or 672, there shall be included any time spent in custody between,

(a) in the case of a sentence of imprisonment for life imposed after the commencement of the Criminal Law Amendment Act (No. 2), 1976, the day on which that person was arrested and taken into custody in respect of the offence for which he was sentenced to imprisonment for life and the day the sentence was imposed; or
(b) in the case of a sentence of death that has been or is deemed to have been commuted to a sentence of imprisonment for life, the day on which that person was arrested and taken into custody in respect of the offence for which he was sentenced to death and the day the sentence was commuted or deemed to have been commuted to a sentence of imprisonment for life.

[ CCC]

  1. R v Viel, 1981 CanLII 3184 (QC CA), per Monet JA (dissenting)