Murderers' Parole Eligibility: The Evolution of Judicial Review (BP348e)

Prepared by
Marilyn Pilon
Law and Government Division
October 1993
Revised March 1997

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 debate.(4)

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.

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.

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 purpose.

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.

a) Of the 204 offenders eligible to seek a review, 79 had made applications for hearings, of which 69 were heard.

Jurisdiction

Reduction
of Restriction

Reduction
Denied

Total

Nova Scotia

New Brunswick

Quebec

Ontario

Manitoba

Saskatchewan

Alberta

British Columbia

CANADA

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 denied.(22)

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.

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)

Proclaimed in force 3 September 1996, Bill C-41 included an amendment limiting the judge’s 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 victim’s spouse, relative or dependant.

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 inmate’s 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.

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 judge’s 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 applicant’s "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 Canada’s most notorious multiple murderers.(33)

As increasing numbers of Canada’s 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)

(1) 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 1996.

(3) 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 punishment.

(6) An Act to amend the Criminal Code (Capital Murder), S.C. 1960-61, Chap. 44, s. 206.

(9) Criminal Law Amendment (Capital Punishment) Act, S.C. 1973-74, C. 38, s. 3.

(10) 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, s. 231.

(12) Thomas O'Reilly-Fleming, "The Injustice of Judicial Review: Vaillancourt Reconsidered," Canadian Journal of Criminology, April 1991, p. 163.

(13) "600 Lifers Get Freedom Bid under Little-Known Law," Toronto Star, 2 June 1991.

(14) House of Commons, Debates, 6 May 1976, 1st Session, 30th Parliament, Vol. XIII, p. 13253.

(16) Thomas Claridge, "Crime and Punishment," Globe and Mail (Toronto), 4 July 1992.

(17) Thomas Claridge, "Top Court to Weigh Parole Law on Killers," Globe and Mail (Toronto), 25 May 1994.

(18) Ontario Rules of Practice Respecting Reduction in the Number of Years of Imprisonment Without Eligibility for Parole, SOR/92-270, 11 May 1992.

(19) 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.

(23) In the matter of the Criminal Code, s. 745, and Brian John Boyko (1990), Trainor J. (B.C.S.C., Vancouver Reg. No. CC891195).

(28) 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.

(29) An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof; S.C. 1995, ch. 22.

(30) "Government Introduces Major Changes in Section 745 of the Criminal Code," Department of Justice press release, 11 June 1995.

(31) Speaking Notes of the Church Council on Justice and Corrections, 18 June, 1996; The Canadian Bar Association submission on Bill C-45, June 1996.

(32) 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.

(33) "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.

(34) "Clifford Olson Early-Release Hearing Must be Stopped," Ottawa Citizen, 6 March 1997.