THE EVOLUTION OF JUDICIAL REVIEW
Law and Government Division
Revised March 1997
SENTENCING OF CONVICTED MURDERERS
"FAINT HOPE" PAROLE
Origins of Judicial Review of Parole Eligibility
Outcome of Review Applications
CONSIDERATION OF EVIDENCE/APPEALS
B. R. v. Swietlinski
Private Member's Bills
B. Bill C-41
C. Bill C-45
THE JUDICIAL REVIEW PROCESS
Amended by Bill C-41 and Bill C-45)
THE EVOLUTION OF JUDICIAL REVIEW
Section 745.6 of the Criminal
Code gives some convicted murderers limited access to the courts to
seek a reduction in the number of years to be served in prison before
eligibility for release on parole. Since the first review was undertaken
in 1987, approximately 70 review applications have been heard from lifers
seeking early parole eligibility. During that time, Canadian newspapers
have carried numerous stories about convicted murderers' bids for early
release from prison.(1) Media accounts of these proceedings have
often included comments from victims' families. There have also been calls
for the repeal of s. 745.6, which some argue "was passed at
a time when the country was pre-occupied with the debate over capital
punishment, rather than the appropriate number of years of incarceration
for murder."(2) Others, however,
maintain that a 25-year parole ineligibility period may be cruel and unusual
punishment and, given the rate at which lifers are accumulating in Canadian
penitentiaries, that either Parliament or the courts must soon address
"the legitimacy of long term confinement."(3)
Although the last execution
in Canada took place more than 30 years ago, capital punishment was not
formally abolished until 1976, after years of public and parliamentary
An earlier version of section
745.6 of the Criminal Code was part of the package of reforms that
did away with the death penalty. This paper examines the original judicial
review procedure and subsequent amendments, with reference to the abolition
process and the sentences served by convicted murderers prior to its introduction.
OF CONVICTED MURDERERS
In Canada, murder was first
classified as capital or non-capital in 1961; before then, only one punishment
had been prescribed for murder and that was death, although the sentence
could be commuted by the Governor in Council to imprisonment for life
or a lesser term.(5) After 1961, only
capital murder, which included homicide that was "planned and deliberate,"
or that caused the death of a police officer or prison guard, was punishable
by death.(6) Later Criminal Code
amendments further restricted capital murder or murder "punishable
by death" to the killing of police officers or prison guards. Ten
years of a (commuted) life sentence for capital murder had to be served
before the Parole Board could recommend parole and the inmate would not
be released without the prior approval of the Governor in Council. Persons
convicted of non-capital murder were sentenced to life but were eligible
for parole after seven years.(7) After
1967, all those serving a life sentence for murder (either capital or
non-capital) needed approval of the Governor in Council prior to release
and could not be recommended for parole before serving at least 10 years.(8)
Criminal Code amendments in 1974 allowed the sentencing judge to
increase the parole ineligibility period to a maximum of 20 years.(9)
On 24 February 1976, the
Solicitor General introduced Bill C-84. It abolished the death penalty
for Criminal Code offences and created two new categories of murder,
first and second degree, both of which carried a minimum sentence of life
imprisonment.(10) Those convicted of
first degree murder would have to serve 25 years before being eligible
for parole. Those convicted of second degree murder would serve between
10 and 25 years prior to parole eligibility, as determined by the sentencing
judge. The 25-year parole ineligibility period has been characterized
as the "trade-off" or necessary expedient to achieving abolition.(11)
Between 1968 and 1974, death sentences commuted to life imprisonment had
resulted in an average of only 13.2 years served prior to release
on parole.(12) Thus, Bill C-84 brought
about a significant increase in the term of imprisonment that convicted
murderers could expect to serve before parole eligibility.
A. The Origins
of Judicial Review of Parole Eligibility
At first reading, clause
21 of Bill C-84 contained a provision allowing those ineligible for parole
for more than 15 years to apply for a reduction in their number of years
of ineligibility, after serving at least 15 years of their sentence. This
provision was described by Jim Fleming, then Parliamentary Secretary to
the Minister of Communications, as a very important "glimmer"
of hope, "if some incentive is to be left when such a terrible penalty
is imposed on the most serious of all criminals."(14)
In the bill's original version,
application for a reduced period of parole ineligibility would have been
heard and determined by a panel of "three judges of the superior
court of criminal jurisdiction" designated by the Chief Justice of
the province or territory in which the conviction had taken place. The
Standing Committee on Justice and Legal Affairs subsequently adopted amendments
requiring the review decision to be made by a jury empanelled for the
Outcome of Review Applications
The accompanying table provides
data concerning the status of applications for judicial review as of 28
October 1996. Of 204 inmates who were eligible to seek a review, a total
of 79 had applied and 10 of those applications were outstanding.(15)
It is interesting to note that almost half (31) of the 69 completed applications
were heard in Quebec, where all but two of the inmates involved were successful
in having their period of parole ineligibility reduced. By contrast, 12
of 38 applications heard elsewhere were denied.
Although the numbers may
be too small to identify any reliable trends, some commentators have speculated
that the higher success rate for Quebec applications may be a reflection
of cultural differences.(16) Others suggest that differing approaches by Crown Attorneys
may explain the results, since Quebec prosecutors tend not actively to
oppose judicial review applications.(17)
Even if they can be explained by different procedural rules and specific
fact situations, high success rates in certain jurisdictions may well
encourage more applications from those convicted there.
Applications for Judicial
Status at 28 October 1996
a) Of the 204 offenders
eligible to seek a review, 79 had made applications for hearings, of which
69 were heard.
b) Outcome of hearings:
Procedure for Review
Because each provincial
or territorial Chief Justice is given the responsibility for making the
rules respecting the actual procedure to be followed in a review application,
there is at least the potential for different processes in different jurisdictions.
In Ontario, the rules allow the judge to order the preparation of a "parole
eligibility report" and for a preliminary hearing to allow cross-examination
on the report and to determine the evidence that will be heard by the
jury. The Ontario rules also provide that the applicant must present his
or her evidence first. The rules also disallow the presentation of evidence
by persons other than the applicant and the Attorney General and allow
the admission of any evidence that the judge considers credible and trustworthy.(18)
While the rules in other provinces tend to be quite similar, they are
not identical; for example, those in Saskatchewan and British Columbia
do not specifically disallow evidence from third parties.(19)
In Vaillancourt v.
Solicitor General of Canada, etc. [Ont.], Associate Chief Justice
Callaghan of the Ontario Supreme Court held that the review process "strikes
a balance between considerations of leniency for the well-behaved convict
in the service of his sentence, which may serve to assist in his rehabilitation,
and the community interest in repudiation and deterrence of the conduct
that led to his incarceration."(20)
In addition, the persuasive onus is properly on the applicant "who
is seeking to set aside an otherwise valid judicial order." Following
René Vaillancourt's unsuccessful application, the Ontario Court of Appeal
in 1989 ruled that it had no jurisdiction to hear an appeal from denial
of a judicial review application.(21)
Although the Supreme Court of Canada held in 1990 that it had jurisdiction
to hear M. Vaillancourt's application for leave to appeal, leave was nevertheless
In addition to the rules
promulgated by the applicable Chief Justice, the Criminal Code
provides general guidelines for a judge charged with conducting the application.
According to one section, the jury is to make its decision based on the
"character" of the applicant, his "conduct" while
incarcerated, the "nature of the offence," and "such other
matters as the judge deems relevant in the circumstances." The exercise
of that judicial discretion has resulted in disparate rulings on the relevance
and admissibility of certain kinds of evidence. For example, in Vaillancourt
v. Solicitor General of Canada, etc. [Ont.], Callaghan, A.C.J.
excluded evidence of the practices and policies of the National Parole
Board, on the basis that such evidence was not relevant to the jury's
deliberations. In contrast, the British Columbia Supreme Court was prepared
to admit evidence of Parole Board practices in order that the jury's decision
not be made "in a vacuum."(23)
There appears to have been
a similar divergence concerning the admissibility of evidence relating
to the original offence. In Ontario, Callaghan, A.C.J., ruled that vive
voce evidence about the offence was not admissible, apart from an
agreed statement of facts, since "blameworthiness" was not in
issue. While acknowledging that the jury could not rethink guilt or innocence,
the British Columbia Supreme Court nevertheless expressed a willingness
to hear about "extenuating circumstances" that might have borne
on "the conduct of the individual engaged in the offence at the time."(24)
Reference was also made in the Boyko case to a Manitoba review
where the applicant's co-accused was apparently allowed to give evidence
accepting responsibility for the original offence. Some of the foregoing
evidential issues have since been canvassed by the Supreme Court of Canada
in R. v. Swietlinski, discussed below.
The rules in Ontario and
several other jurisdictions would seem to preclude submissions coming
from third parties of their own volition; however, the general nature
of the wording in that legislation leaves considerable discretion in the
hands of the "designated" judge as to the nature of the evidence
that may be considered relevant to the jury's deliberations.
In R. v. Swietlinski,
O'Driscoll J. declared victim impact statements inadmissible in a judicial
review proceeding because they were intended to assist in the earlier
sentencing process and were thus not relevant to the issue before the
jury.(25) On appeal, a majority of
the Supreme Court of Canada decided that victim impact statements were
not "at all times inadmissible."(26)
Rather, the presiding judge would have the responsibility and discretion
to determine the relevance and admissibility of such a statement in any
given case. The Supreme Court also held that the jury would have to consider
the offender's past and present character, since the purpose of the proceeding
is to reassess the penalty imposed on the offender by reference to the
way his or her situation has evolved in 15 years. Furthermore, because
the applicant is not to be punished for weaknesses in the system, it was
not open to the jury to "determine whether the existing system of
parole is doing its job."(27)
Although the Supreme Court
of Canada decision in Swietlinski has provided some guidance as
to the nature of the evidence relevant to a judicial review application
and the appropriate balance to be struck by the jury in its deliberations,
it may be said that the courts are not well situated to resolve the more
fundamental policy issues involved in the release of convicted murderers.
Private Members Bills
Two Private Members' bills
introduced in the Thirty-Fourth Parliament called for later access or
an end to parole eligibility reviews for convicted first degree murderers.
Bill C-311 would have required those convicted of first degree murder
to serve 20 years before review, while Bill C-330 would have
eliminated judicial review of parole ineligibility for those inmates.
Both bills would have left the review process intact for those convicted
of second degree murder. Private Member's Bill C-226, introduced
17 March 1994, proposed to eliminate parole eligibility reviews altogether.(28)
B. Bill C-41
Proclaimed in force 3 September
1996, Bill C-41 included an amendment limiting the judges discretion
to disallow the use of victim impact statements by adding "any information
provided by a victim" to the list of factors to be considered by
the jury in a review application. This amendment also incorporated by
reference a broad definition of "victim" that includes anyone
who had custody of a deceased victim or responsibility for their care
or support, as well as the victims spouse, relative or dependant.
C. Bill C-45(29)
Introduced 11 June 1996,
Bill C-45 amended the procedure for judicial review of murderers
parole eligibility and rendered future "multiple" murderers
ineligible for consideration. To ensure that judicial review would be
available "only in the most appropriate cases," a screening
process was put in place, whereby a superior court judge must first be
persuaded that an application has a "reasonable prospect" of
success, before an applicant can actually bring his or her case before
a jury.(30) This should mean that inmates
with very little chance of a positive outcome, because of the nature of
their crimes and/or a poor institutional record, will not have access,
as of right, to a process that places significant demands on the time
and resources of Correctional Services Canada and the courts. Perhaps
more important, surviving family and friends of victims will not face
the prospect of attending or testifying at lengthy hearings if the screening
judge has determined that there is no merit to an inmates case.
Additional amendments in Bill C-45 require that any reduction in parole
ineligibility periods must have the unanimous support of the jury (instead
of the two-thirds majority previously required). The screening process
and the requirement for unanimity on the part of the jury will apply only
to applications brought after 9 January 1997, when the bill was proclaimed
in force. This means that any outstanding applications must be conducted
under the rules of the old legislation.
The exclusion of "multiple"
murderers will also not affect those already in jail for more than one
murder. Presumably to avoid changing the punishment after the crime, at
least one of the murders for which the person has been convicted must
have been committed after 9 January 1997, for the exclusion to operate.
Likewise, through transitional amendments make clear that the jury will
now be required to consider information from victims, this will be only
"in respect of crimes committed after the coming into force of that
section." This means that the admissibility of victim impact statements
will continue to be a matter of judicial discretion for some time to come.
THE JUDICIAL REVIEW PROCESS
Amended by Bill C-41 and Bill C-45)
Section 745.6 gives persons
who have been convicted of murder or high treason (and sentenced to life
imprisonment without eligibility for parole for more than 15 years) the
right to apply, after serving at least 15 years, to the Chief Justice
of the province where their conviction took place for a reduction in the
number of years they must serve before being eligible for parole. As previously
mentioned, the same section makes those convicted of more than one murder
ineligible for review.
Section 745.61 then requires
the Chief Justice to decide, or appoint another superior court judge to
decide, whether the applicant has shown "on a balance of probabilities,
that there is a reasonable prospect that the application will succeed."
The judge must base that determination on specific evidence that includes
the application filed, any reports submitted by the correctional authorities,
and "any other written evidence" presented by the applicant
or the Attorney General in question. In making his or her decision, the
judge must consider the same criteria that will be used by the jury (discussed
below), in order to determine whether the applicant has a reasonable prospect
of success. If the judge is persuaded that there is such a reasonable
prospect, then the Chief Justice must appoint a superior court judge who
will then empanel a jury to hear the application. If the judge is not
so persuaded, he or she can prohibit any future applications or allow
another application at a specified time, "not earlier than two years
after the date of the determination." In the event that the judge
does neither, the legislation authorizes a further application after two
years. Section 745.62 gives both the applicant and the Attorney General
the right to appeal the judges decision to the Court of Appeal,
"on any question of law or fact or mixed law and fact."
Once a jury is empanelled
to hear an application, section 745.63 necessitates consideration of the
following specific criteria in reaching a decision: the applicants
"character," his or her "conduct" while incarcerated,
the nature of the offence committed, any information provided by victims
at the time of sentencing or at the hearing, and any other matters that
the judge considers relevant. As previously mentioned, a jury decision
to reduce the parole ineligibility period must be unanimous. However,
once that decision is made, the actual reduction in years may be determined
by a two-thirds majority. As was always the case, a two-thirds majority
of the jury may allow an unsuccessful applicant to make another application
after a specified period of time, not less than two years later, or it
can disallow any future applications. In the event that the jury does
neither, the legislation allows an unsuccessful applicant to make another
application after two years.
It comes as no surprise
that Bill C-45 amendments have proved extremely controversial, given the
interests and sensibilities involved. During hearings conducted by the
House of Commons Standing Committee on Justice and Legal Affairs, several
witnesses cited the relative successes of those few inmates who had actually
been released early as a result of the legislation, arguing that there
was no need for amendments to limit access.(31)
In contrast, several witnesses called for complete repeal of the judicial
review provisions, arguing that "truth in sentencing" demands
that convicted murderers serve nothing less than their full period of
parole ineligibility before being allowed to apply for parole.(32) Many commentators have also championed
the concerns of victims surviving family members and decried the
fact that passage of the bill came too late to affect the application
of one of Canadas most notorious multiple murderers.(33)
As increasing numbers of
Canadas worst offenders approach the 15-year point at which they
become eligible to initiate an application for judicial review, Parliament
could face continuing pressure for another review of this law, which attempts
to balance two often conflicting policy values: denunciation of the crime and
rehabilitation of the offender. In any event, it may be that the matter
has not been put to rest by Bill C-45. Indeed, opposition parties continue
to call for outright repeal of the judicial review process,(34)
with at least one party using the promise of repeal as part of its platform
for the next election.(35)
See: "Criminals Have All the Rights," Winnipeg Sun, 10 September
1993; "King Murderer Eligible for Parole Review," The Star-Phoenix
(Saskatoon), 11 September 1993; "Crime and Punishment,"
Globe and Mail (Toronto), 4 July 1992; "Jury Allows Killer
Dad to Apply for Early Parole," Toronto Star, 5 March
Lorrie Goldstein, Toronto Sun, 16 January 1990.
Allan Manson, "The Easy Acceptance of Long-Term Confinement in Canada,"
(1990) 79 C.R. (3d) 265; however, in R. v. Luxton (1990)
79 C.R. (3d) 193, the Supreme Court of Canada held that 25 years
of parole ineligibility for first degree murder was not cruel and unusual
Ibid., at p. 266.
Criminal Code, S.C. 1953-54, Chap. 51, s. 206, s. 656.
An Act to amend the Criminal Code (Capital Murder), S.C. 1960-61,
Chap. 44, s. 206.
Parole Regulations, SOR/64-475, 23 December 1964.
Parole Regulations, SOR/68-21, 24 January 1968.
Criminal Law Amendment (Capital Punishment) Act, S.C. 1973-74,
C. 38, s. 3.
The distinction between first and second degree murder continues to the
present. First degree murder includes murder that is "planned and
deliberate," murder of police officers or prison guards acting in
the course of their duties, and murder committed during the course of
certain listed offences. See: Criminal Code, R.S.C. 1985, Chap. C-46,
Manson (1990), at p. 267.
Thomas O'Reilly-Fleming, "The Injustice of Judicial Review: Vaillancourt
Reconsidered," Canadian Journal of Criminology, April 1991,
"600 Lifers Get Freedom Bid under Little-Known Law," Toronto
Star, 2 June 1991.
House of Commons, Debates, 6 May 1976, 1st Session, 30th Parliament,
Vol. XIII, p. 13253.
National Parole Board; data, 1996.
Thomas Claridge, "Crime and Punishment," Globe and Mail
(Toronto), 4 July 1992.
Thomas Claridge, "Top Court to Weigh Parole Law on Killers,"
Globe and Mail (Toronto), 25 May 1994.
Ontario Rules of Practice Respecting Reduction in the Number of Years
of Imprisonment Without Eligibility for Parole, SOR/92-270, 11 May
Saskatchewan Rules of Practice Respecting Reduction in the Number of
Years of Imprisonment Without Eligibility for Parole, SOR/90-74, 9 January
1990; British Columbia Rules of Practice Respecting Reduction in the
Number of Years of Imprisonment Without Eligibility for Parole, SOR/92-746,
15 December 1992.
(1988), 66 C.R. (3d) 66 at p. 75.
R. v. Vaillancourt [Ont.] (1989), 71 C.R. (3d) 43.
R. v. Vaillancourt (1990), 72 C.R. (3d) xxvi (S.C.C.).
In the matter of the Criminal Code, s. 745, and Brian John Boyko
(1990), Trainor J. (B.C.S.C., Vancouver Reg. No. CC891195).
(1992), 13 C.R. (4th) 116 (Ont. Gen. Div.).
R. v. Swietlinski,  3 S.C.R. 481.
After Bill C-226 died on the Order Paper at prorogation, in February 1996,
the same proposal was reintroduced as Bill C-234 on 12 March 1996.
An Act to amend the Criminal Code (sentencing) and other Acts in consequence
thereof; S.C. 1995, ch. 22.
"Government Introduces Major Changes in Section 745 of the Criminal
Code," Department of Justice press release, 11 June 1995.
Speaking Notes of the Church Council on Justice and Corrections, 18 June,
1996; The Canadian Bar Association submission on Bill C-45, June 1996.
Canadian Police Association Brief to the Standing Committee on Justice
Regarding C-45, 18 June 1996; The Canadian Resource Centre for Victims
of Crime and the National Justice Network Brief to the Standing Committee
on Justice and Legal Affairs, 18 June 1996.
"Deadly Decision Still Haunts Us All," Edmonton Sun,
2 March 1997; "Victims Families Prepare to Block Olson Parole
Bid," The Vancouver Sun, 10 March 1997.
"Clifford Olson Early-Release Hearing Must be Stopped," Ottawa
Citizen, 6 March 1997.
"Charest Tilts to the Right," Ottawa Citizen, 19 March