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Judicial Review #5 in a series of fact sheets that examine questions frequently asked about Fact Sheet the criminal justice system. May 1995 Judicial Review Parliament is now considering a bill Infanticide occurs when a female causes to abolish Section 745 of the Criminal Code, the death of her newborn child if her When can a person convicted of a provision that allows for a judicial review mind is considered disturbed from the murder be released from of the parole eligibility of prisoners serving effects of giving birth. prison? a life sentence for murder with a parole eligibility of 15 years or more. We believe A homicide is murder when a person Unlike definite sentences where the that public and political support for the intentionally causes the death of end of the sentence is set, the only way abolition of the judicial review provision is another human being, or means to that a person sentenced to life can ever be largely based on misconceptions about the cause bodily harm that is likely to released from prison is through the penalty for murder, how the judicial review cause death. discretion of the National Parole Board. process works and what happens to those The parole eligibility date defines the serving a life sentence who apply for and First degree murder is when: first date that the person can be considered are released on parole. Before Canada a) it is planned and deliberate or, for full parole. The parole eligibility date moves any closer to removing the possibility b) the victim is a person employed is not a definite release date. The offenders of reducing the parole eligibility in those and acting in the course of his/ release can be, and most often is, delayed situations where it is warranted, it is her work for the preservation and beyond the eligibility date and could be important to examine the facts. maintenance of public peace (i.e., refused entirely if the Parole Board feels police officer, correctional officer) that the person continues to present a risk or, of re-offending. c) the death is caused by a person The date of parole eligibility is set at What is murder and what is the committing certain serious the time of sentencing. For those convicted punishment for murder? offences (i.e., sexual assault, of first degree murder, the parole eligibility kidnapping, hijacking). must be 25 years. The period of ineligibility Not all homicides are classified as is mandatory. The judge cannot vary it. murder. Homicide can be defined as Second degree murder is all murder that In the case of those convicted of second murder, manslaughter or infanticide is not first degree. degree murder, the judge will ask for depending upon the external circumstances recommendations from the jury before of the killing and the mental element which In the case of manslaughter and setting the parole eligibility date. The jury accompanies it (1995 Tremeers Criminal infanticide, the judge has discretion in can offer no recommendation or can Code). The Canadian Centre for Justice sentencing. There is no minimum sentence recommend a date between 10 and 25 years. Statistics (1994) gives the following for either offence and the maximum penalty The judge may or may not accept the definitions for the categories of homicide: is life for manslaughter and five years for recommendation of the jury but must set infanticide. the period of ineligibility between the 10 to Manslaughter is generally considered to In the case of murder, the judge has 25 year range. be homicide committed in the heat of no discretion in sentencing. The mandatory As Table 1 shows, Parliament has passion caused by sudden provocation. penalty is a life sentence which continues made a number of legislative amendments for the natural life of the convicted person. with respect to parole eligibility for those 1 Date Mandatory Penalty Parole Eligibility plan. As well, psychological and psychiatric assessments are completed for if commuted to life imprisonment, 1961 and prior Death penalty for all murder consideration by the Board. eligibility unrestricted A person serving a life sentence will if commuted to life imprisonment, be required to go through an extensive Sept. 1961 Death penalty for “capital murder” 10 years gradual release program before being released on full parole. A gradual release Life imprisonment for “non-capital 7 years program begins with a series of escorted murder” temporary absences (ETA) - short periods of time spent in the community under the 10 years when commuted to life Dec. 1969 Death penalty for “capital murder” imprisonment escort of Correctional Services Canada personnel. After a number of successful Life imprisonment for “non-capital ETAs, consideration is then given to 10 years murder” expanding the program through unescorted temporary absences (UTA) - periods of time 10 to 20 years at the discretion of Death penalty for “murder punishable Jan. 1974 court when commuted to life spent in the community up to 48 hours per by death” imprisonment month for a prisoner in a medium security prison and 72 hours per month for prisoner Life imprisonment for "murder 10 to 20 years at court discretion in a minimum security prison. punishable by life imprisonment" Most often UTAs are used to confirm Life imprisonment for “first degree halfway house accommodation and plans July 1976 25 years murder” for education/employment in the community where the person plans to reside Life imprisonment for "second degree 10 to 25 years at court discretion when released on parole. While in the murder" community on a UTA, the person reports to a parole officer and to the local police. Note: The last execution in Canada was in 1962 after which all death penalty sentences were commuted to life After a number of successful UTAs, sentences. The death penalty was finally abolished in 1976 Table 1 Source: Zubrycki, 1984) the person can be considered for day parole. A day parole requires that the person return to a correctional centre or a halfway house convicted of murder since 1961 - steadily degree murder and almost one-half have a every night. After a successful period on increasing the period before eligibility. parole eligibility date greater than 10 years. day parole, the person will be considered The average parole eligibility date for those for full parole. serving life for second degree murder is It often takes two to three years from 12.5 years. the time that the first ETA is granted to the What has been the effect of the It has been estimated that the changes granting of full parole. All decisions with 1976 changes to parole made in 1976 to parole eligibility for lifers respect to ETA, UTA, day parole and full eligibility? resulted in an increase in the population in parole are made by the National Parole federal prisons of 888 - the equivalent of Board. Before 1976, the average time served two maximum security institutions in prison prior to parole on a life term for (Landreville, 1995). capital murder was 14 years (Zubrycki, How long does parole last and 1984) - 11 years earlier than a person now convicted of first degree murder would what is required of the parolee? normally be considered for parole. What factors does the Parole The increase in time served prior to Board consider? A person serving a life sentence who parole eligibility has contributed to the is released on parole continues to serve the problem of prison overcrowding. 25-30 While in prison, a correctional life sentence in the community. He/she prisoners per year enter the system serving treatment plan is developed which identifies will be on parole until they die. life for first degree murder. As of February programs required to address problem areas A person released on parole is subject 22 1995, there were 564 people in federal such as substance abuse, anger to conditions and must report to a parole prisons serving life with 25 years before management, cognitive skills and officer. Conditions include reporting to the parole eligibility. This figure is projected educational/vocational programs. Any police, remaining within a specified to rise to 700 by the year 2000. There are parole decision is dependent upon successful geographical area unless permission to 1477 prisoners serving life for second completion of the correctional treatment travel outside of the area is granted, and 2 other requirements set by the National 15 years to apply to the court for a reduction 1) make no change or reduction to Parole Board or the parole officer such as in that period. The review is not automatic the period of parole eligibility but participation in a substance abuse program - the person serving the sentence must apply set a date when a new application and psychological counselling. for it - and it can take place only after he/ can be made; or If the conditions are broken or even she has served 15 years of the sentence. 2) make no change or reduction a minor criminal offence is committed, the Judicial Review is not a loophole in to the period of parole eligibility offender is returned to the penitentiary to the law as some contend but rather a and refuse the possibility of future continue serving the life sentence. deliberate decision by Members of applications; or Parliament to provide a mechanism to allow 3) reduce the number of years of for reconsideration of parole eligibility after imprisonment without eligibility a lengthy period of time had been served. for parole; or How many commit an offence Those who drafted the law recognized that 4) terminate the ineligibility for while on parole? providing hope in the form of a more parole, making the offender reasonable parole eligibility date would be: eligible to apply for parole Of the 752 full parole releases of 1) an incentive to prisoners rehabilitation, immediately.
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