Life Sentences

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General Principles

Ordering Life Sentences
When a sentencing judge is considering making a life sentence for a maximum life sentence offence, the circumstances justifying a life sentence should include "one or more" of the following future:[1]

  • cruelty, brutality, unusual violence;
  • terrorizing and torturing victim over a period of time;
  • intentional, prolonged, repeated violence against victim;
  • acts needlessly repeated or lack of feeling suggesting sadistic intent to cause terror or even torture;
  • intentional infliction of pain, fright, panic that is tantamount to torture solely for gratification or other perverse reason;
  • cruelty and callousness not frequently encountered;
  • deliberate infliction of brutal, disfiguring, life threatening injuries.

Prior consideration have been on the standard of offences of "stark horror".[2]

Mandatory Life Sentences

Sentence of life imprisonment
745. Subject to section 745.1, the sentence to be pronounced against a person who is to be sentenced to imprisonment for life shall be

(a) in respect of a person who has been convicted of high treason or first degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served twenty-five years of the sentence;
(b) in respect of a person who has been convicted of second degree murder where that person has previously been convicted of culpable homicide that is murder, however described in this Act, that that person be sentenced to imprisonment for life without eligibility for parole until the person has served twenty-five years of the sentence;
(b.1) in respect of a person who has been convicted of second degree murder where that person has previously been convicted of an offence under section 4 or 6 of the Crimes Against Humanity and War Crimes Act that had as its basis an intentional killing, whether or not it was planned and deliberate, that that person be sentenced to imprisonment for life without eligibility for parole until the person has served twenty-five years of the sentence;
(c) in respect of a person who has been convicted of second degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served at least ten years of the sentence or such greater number of years, not being more than twenty-five years, as has been substituted therefor pursuant to section 745.4; and
(d) in respect of a person who has been convicted of any other offence, that the person be sentenced to imprisonment for life with normal eligibility for parole.

R.S., 1985, c. C-46, s. 745; R.S., 1985, c. 27 (2nd Supp.), s. 10; 1990, c. 17, s. 14; 1992, c. 51, s. 39; 1995, c. 22, s. 6; 2000, c. 24, s. 46.


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Information in respect of parole
745.01 (1) Except where subsection 745.6(2) applies, at the time of sentencing under paragraph 745(a), (b) or (c), the judge who presided at the trial of the offender shall state the following, for the record:

The offender has been found guilty of (state offence) and sentenced to imprisonment for life. The offender is not eligible for parole until (state date). However, after serving at least 15 years of the sentence, the offender may apply under section 745.6 of the Criminal Code for a reduction in the number of years of imprisonment without eligibility for parole. If the jury hearing the application reduces the period of parole ineligibility, the offender may then make an application for parole under the Corrections and Conditional Release Act at the end of that reduced period.

Exception
(2) Subsection (1) does not apply if the offender is convicted of an offence committed on or after the day on which this subsection comes into force.
1999, c. 25, s. 21(Preamble); 2011, c. 2, s. 2.


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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 substantial likelihood 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 substantial likelihood 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 any modifications that 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 substantial likelihood that the application will succeed, the Chief Justice or judge may

(a) set a time, no earlier than five years after the date of the determination, at or after which the applicant may make another application under subsection 745.6(1); or
(b) decide that the applicant may not make another application under that subsection.

If no decision re new application
(4) If the Chief Justice or judge determines that the applicant has not shown that there is a substantial likelihood 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 five 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 substantial likelihood 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; 2011, c. 2, s. 4.


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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.


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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, no earlier than five years after the date of the determination or conclusion under subsection (4), at or after which the applicant may make another application 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 on 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 five years after the date of the determination or conclusion under subsection (4).
1996, c. 34, s. 2; 1999, c. 25, s. 22(Preamble); 2011, c. 2, s. 5.


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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 Yukon, the Northwest Territories or Nunavut, the appropriate Chief Justice may designate the judge from the Court of Appeal of Yukon, the Northwest Territories or Nunavut, or the Supreme Court of Yukon 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; 2002, c. 7, s. 147(E).


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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.


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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 Parole Board of Canada, 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; 2012, c. 1, ss. 160, 201.


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Young Persons

Persons under eighteen
745.1 The sentence to be pronounced against a person who was under the age of eighteen at the time of the commission of the offence for which the person was convicted of first degree murder or second degree murder and who is to be sentenced to imprisonment for life shall be that the person be sentenced to imprisonment for life without eligibility for parole until the person has served

(a) such period between five and seven years of the sentence as is specified by the judge presiding at the trial, or if no period is specified by the judge presiding at the trial, five years, in the case of a person who was under the age of sixteen at the time of the commission of the offence;
(b) ten years, in the case of a person convicted of first degree murder who was sixteen or seventeen years of age at the time of the commission of the offence; and
(c) seven years, in the case of a person convicted of second degree murder who was sixteen or seventeen years of age at the time of the commission of the offence.

1995, c. 22, ss. 6, 21.


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Persons under sixteen
745.3 Where a jury finds an accused guilty of first degree murder or second degree murder and the accused was under the age of sixteen at the time of the commission of the offence, the judge presiding at the trial shall, before discharging the jury, put to them the following question:

You have found the accused guilty of first degree murder (or second degree murder) and the law requires that I now pronounce a sentence of imprisonment for life against the accused. Do you wish to make any recommendation with respect to the period of imprisonment that the accused must serve before the accused is eligible for release on parole? You are not required to make any recommendation but if you do, your recommendation will be considered by me when I am determining the period of imprisonment that is between five years and seven years that the law would require the accused to serve before the accused is eligible to be considered for release on parole.


1995, c. 22, ss. 6, 22.


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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.


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746.1
...
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 Parole Board of Canada, 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; 2012, c. 1, ss. 160, 201.


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Concurrent or Consecutive Sentences for Multiple Murders

Where an offender is to be sentenced for multiple offences of murder involving more than one victim, the judge is required to consider under s. 745.51 whether to order that the sentences be served consecutively:

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.


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Recommendation by jury — multiple murders
745.21 (1) Where a jury finds an accused guilty of murder and that accused has previously been convicted of murder, the judge presiding at the trial shall, before discharging the jury, put to them the following question:

You have found the accused guilty of murder. The law requires that I now pronounce a sentence of imprisonment for life against the accused. Do you wish to make any recommendation with respect to the period without eligibility for parole to be served for this murder consecutively to the period without eligibility for parole imposed for the previous murder? You are not required to make any recommendation, but if you do, your recommendation will be considered by me when I make my determination.

Application
(2) Subsection (1) applies 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. 4.


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For the purpose of s. 745.21 and 745.51, the date of the section coming into force was Dec 2, 2011.[3]


  1. R. v. Klair, 2004 CanLII 8965 (ON CA), [2004] O.J. 2320 (C.A.), per Sharpe J.A.
  2. R v Cheddesingh, 2002 CanLII 49362 (ON CA) at paras 14 to 15
  3. see List_of_Criminal_Code_Amendments

Second Degree Murder

Under s. 745.4, the judge may increase the parole ineligibility period from 10 years to anywhere not exceeding 25 years.

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.


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The power to delay eligibility for parole does not need to be used "sparingly". [1]

In certain circumstances such as where it reveals character and background, evidence of uncharged criminal offences can be admissible in a parole ineligibility hearing.[2]

  1. R v Shropshire, 1995 CanLII 47 (SCC), [1995] 4 SCR 227
  2. R v Roberts, 2006 ABCA 113 (CanLII), at paras 29 to 45

Jury Recommendation

Single Murder

Recommendation by jury
745.2 Subject to section 745.3, where a jury finds an accused guilty of second degree murder, the judge presiding at the trial shall, before discharging the jury, put to them the following question:

You have found the accused guilty of second degree murder and the law requires that I now pronounce a sentence of imprisonment for life against the accused. Do you wish to make any recommendation with respect to the number of years that the accused must serve before the accused is eligible for release on parole? You are not required to make any recommendation but if you do, your recommendation will be considered by me when I am determining whether I should substitute for the ten year period, which the law would otherwise require the accused to serve before the accused is eligible to be considered for release on parole, a number of years that is more than ten but not more than twenty-five.

1995, c. 22, s. 6.


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Multiple Murders

Recommendation by jury — multiple murders
745.21 (1) Where a jury finds an accused guilty of murder and that accused has previously been convicted of murder, the judge presiding at the trial shall, before discharging the jury, put to them the following question:

You have found the accused guilty of murder. The law requires that I now pronounce a sentence of imprisonment for life against the accused. Do you wish to make any recommendation with respect to the period without eligibility for parole to be served for this murder consecutively to the period without eligibility for parole imposed for the previous murder? You are not required to make any recommendation, but if you do, your recommendation will be considered by me when I make my determination.

Application
(2) Subsection (1) applies 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. 4.


A jury may only consider "material leading to the conviction" when determining a recommendation. No other factors may be considered.[1] This means that there can be no submissions by counsel to the jury and no admission of criminal record after conviction has been made.[2]

A failure of the jury to make a recommendation on parole ineligibility is not the equivalent of a recommendation of 10 years.[3]

A recommendation of a jury is only one factor that the sentencing judge is to consider.[4]

  1. R v Nepoose, 1988 ABCA 382 (CanLII), at para 16
  2. Nepoose at paras 18, 19
  3. R v Cerra, 2004 BCCA 594 (CanLII), at para 13
  4. R v Joseph, 1984 CanLII 470 (BC CA), at para 18 per Craig JA.
    R v Jordan, 1983 CanLII 239 (BC CA)

Review of Ineligibility

Application for judicial review
745.6 (1) Subject to subsections (2) to (2.6), 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;
(a.1) committed the murder or high treason before the day on which this paragraph comes into force;
(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.
Less than 15 years of sentence served
(2.1) A person who is convicted of murder or high treason and who has served less than 15 years of their sentence on the day on which this subsection comes into force may, within 90 days after the day on which they have served 15 years of their sentence, make an application under subsection (1).
At least 15 years of sentence served
(2.2) A person who is convicted of murder or high treason and who has served at least 15 years of their sentence on the day on which this subsection comes into force may make an application under subsection (1) within 90 days after

(a) the end of five years after the day on which the person was the subject of a determination made under subsection 745.61(4) or a determination or conclusion to which subsection 745.63(8) applies; or
(b) the day on which this subsection comes into force, if the person has not made an application under subsection (1).

Non-application of subsection (2.2)
(2.3) Subsection (2.2) has no effect on a determination or decision made under subsection 745.61(3) or (5) or 745.63(3), (5) or (6) as it read immediately before the day on which this subsection comes into force. A person in respect of whom a time is set under paragraph 745.61(3)(a) or 745.63(6)(a) as it read immediately before that day may make an application under subsection (1) within 90 days after the end of that time.
Further five-year period if no application made
(2.4) If the person does not make an application in accordance with subsection (2.1), (2.2) or (2.3), as the case may be, they may make an application within 90 days after the day on which they have served a further five years of their sentence following the 90-day period referred to in that subsection, as the case may be.
Subsequent applications
(2.5) A person who makes an application in accordance with subsection (2.1), (2.2) or (2.3), as the case may be, may make another application under subsection (1) within 90 days after

(a) the end of the time set under paragraph 745.61(3)(a) or 745.63(6)(a), if a time is set under that paragraph; or
(b) the end of five years after the day on which the person is the subject of a determination made under subsection 745.61(4) or a determination or conclusion to which subsection 745.63(8) applies, if the person is the subject of such a determination or conclusion.

Subsequent applications
(2.6) A person who had made an application under subsection (1) as it read immediately before the day on which this subsection comes into force, whose application was finally disposed of on or after that day and who has then made a subsequent application may make a further application in accordance with subsection (2.5), if either paragraph (2.5)(a) or (b) is applicable.
(2.7) The 90-day time limits for the making of any application referred to in subsections (2.1) to (2.5) may be extended by the appropriate Chief Justice, or his or her designate, to a maximum of 180 days if the person, due to circumstances beyond their control, is unable to make an application within the 90-day time limit.
(2.8) If a person convicted of murder does not make an application under subsection (1) within the maximum time period allowed by this section, the Commissioner of Correctional Service Canada, or his or her designate, shall immediately notify in writing a parent, child, spouse or common-law partner of the victim that the convicted person did not make an application. If it is not possible to notify one of the aforementioned relatives, then the notification shall be given to another relative of the victim. The notification shall specify the next date on which the convicted person will be eligible to make an application under subsection (1).
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 Province of Newfoundland and Labrador, 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, British Columbia and Prince Edward Island, the Chief Justice of the Supreme Court; and
(f) in relation to Yukon, the Northwest Territories and Nunavut, the Chief Justice of the Court of Appeal.

1993, c. 28, s. 78; 1995, c. 22, s. 6; 1996, c. 34, s. 2; 1998, c. 15, s. 20; 2002, c. 7, s. 146; 2011, c. 2, s. 3; 2015, c. 3, s. 55.


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See Also