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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 be released from of the parole eligibility of serving effects of giving birth. ? 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 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 offender’s 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 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 Tremeer’s 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 , 1961 and prior Death penalty for all murder consideration by the Board. eligibility unrestricted A person serving a life sentence will if commuted to , 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 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 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 . 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. those serving a life sentence for murder 2) a control mechanism which helps the between Jan. 1, 1975 and March 31, 1990, prison administration, 3) an economic 69 (9.2%) were returned to prison for the benefit of releasing a person who is no commission of a new offence. Of the 69 longer a danger to society to return to How many have applied for returned for a new offence: society to earn their living, support their Judicial Review? • 21 (30%) were for offences families and pay taxes, and 4) a method to consider the implications of long periods against the person, Not everyone who is eligible to apply • of parole ineligibility in special cases such for a judicial review applies. It is a rigorous 13 (19%) were for narcotics as the elderly. offences, process that brings the offender and the facts of the case back into the public eye. The • 12 (17%) were for property Judicial Review hearing often lasts a week offences, • or more and the application is often 6 (9%) were for robbery, and How does the Judicial Review contested aggressively by the crown. Some • 17 (25%) were for Other process work? who are eligible for judicial review have Criminal Code offences. chosen to forego the review, particularly Of the 21 who committed an offence The judicial review hearing takes when the parole eligibility is 20 years or against the person, five were for murder. place in the same province and in the same less. This represents 0.7% of all those serving community where the murder occurred. A As of June 30 1994, 128 prisoners a life sentence for murder who were jury of 12 citizens from that community were eligible to apply for judicial review released on full parole during this 15-year decides only whether to reduce the but only 71 had applied (Correctional period. Besides these five cases, no person eligibility date for parole. The jury will Services of Canada). on full parole while serving a life sentence hear information presented by the applicant for murder has been convicted of attempted and the Crown relating to the following murder or any other offence causing death areas: (Correctional Services Canada, 1992). 1) the character of the applicant, How many Judicial Reviews Relatively low re-offending rates 2) the applicant’s conduct while serving have taken place and what was among this group of offenders is not unique his/her sentence, decided in these cases? to Canada. Studies in the United Kingdom 3) the nature of the offence for which and Germany show similar low recidivist the applicant was convicted, and As of February 15, 1995, 55 judicial rates for those released from life 4) such other matters deemed relevant reviews have been completed and decisions imprisonment (United Nations, 1994). by the presiding judge. rendered. Table 2 shows the outcome in A number of witnesses are called by these cases by province. both the applicant and the Crown to present No judicial reviews have taken place the information. The applicant must testify. What is Judicial Review? in Newfoundland, Prince Edward Island or The onus is on the applicant (the offender) in the territories. to convince the jury that the eligibility date Both the number of judicial review Section 745 of the Criminal Code, for parole should be reduced. applications heard and the nature of the called the Judicial Review provision, allows Two-thirds of the jury must agree review decisions varies between the for prisoners serving a life sentence with a before the eligibility date for parole can be provinces where reviews have taken place. parole ineligibility period of greater than reduced. They can decide to: Almost one-half of the reviews have taken

3 Judicial Review Decisions by Province (to Feb. 15, 1995) of the parole eligibility date in a manner and forum that is fair and independent and Parole Eligibility Reduced to: Rejected: re-application Total represents the interests of the community. (years) permitted in: Judicial review also limits the problems 15 16 17 18 19 20 21 22 23 3 years 4 years none associated with continued long-term N.B. 1 1 incarceration for those offenders who no N.S. 1 1 longer present a risk to the community. Some say that the majority of citizens 12 3 3 1 2 1 1 23 favour the abolition of judicial review. But 1 1 1 2 1 5 11 it is clear that when citizens are asked, as Manitoba 1 2 1 1 5 jury members, to review individual cases Sask. 1 1 1 1 4 in depth, they are quite willing and able to use their discretion properly. Alberta 1 1 3 5 Abolition of judicial review robs the B.C. 1 1 2 1 5 future generation of making their own Total 16 5 6 4 2 6 1 1 1 2 1 10 55 choices based on their assessment of the impact of our sentence on the offender and Table 2 Source: Senator Earl Hastings their communities at that time. It also robs them of the opportunity to respond in a place in Quebec. Seventy five percent of release, all will be required to go through humane way to special circumstances. the applicants who have had their parole a gradual release program (ETAs leading When we create laws that allow for no eligibility reduced to 15 years had their to UTAs leading to day parole) prior to exceptions, we create a tyranny. judicial review in Quebec. being considered for full parole. As of February 28, 1995, 15 of those who have received a reduction in their parole eligibility have been released on full When can the offender be parole and 6 on day parole. Sources released following a favourable David Watt and Michelle Fuerst, The Annotated 1995 Tremeer’s Criminal Code, Toronto 1994. judicial review decision? Canadian Centre for Justice Statistics, “Homicide in Canada - Why should we support the 1993”, Juristat, 14(15), August 1994. A favourable decision does not mean Richard M. Zubrycki, “Long-term incarceration in Canada”, that the person is released at that time. A Judicial Review provision? Canadian Journal of , 26(4), October 1984. judicial review decision to reduce the parole Correctional Services Canada, “Recidivism among homicide eligibility date only means that the person Judicial review is a humane practice offenders”, Forum on Correction Research, 4(2), June 1992. because it gives an offender some hope - can apply for parole at the time specified United Nations Prevention and Criminal Justice Branch, by the jury. The individual must then await an essential component of coping with the “Life imprisonment”, Vienna, 1994. sentence and managing day-to-day existence a hearing (4-6 months from the time of Pierre Landreville, “Prison overpopulation and strategies for application). He/she must show that he/ in prison. It is a just practice because it decarceration”, Canadian Journal of Criminology, 37(1), she is no longer a danger to the public and allows for the possibility of review of the January 1995. is rehabilitated. If they are considered for offender’s circumstances and an adjustment Earl A. Hastings, Senate of Canada.

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