Background Information on Section 745

• In 1976, capital punishment for convicted murderers was eliminated in Canada and replaced with mandatory life imprisonment. People convicted of first degree murder had to serve a minimum of twenty-five years in prison while those convicted of second degree murder had to serve between ten and twenty-five years (to be determined by the judge at the time of sentencing) before becoming eligible for parole.
• At the same time, Section 745 of the Criminal Code of Canada was introduced, producing a loophole to these sentences. Section 745, also referred to as the 'faint hope' clause, states that if a person has been convicted of first or second degree murder and has served fifteen years of the sentence, he or she has the 'right' to apply to the court to ask for a reduction in the number of years of imprisonment without eligibility for parole. In effect, the offender is asking for a reduction of their original sentence.
• During a Section 745 application to the court, the jury is to consider primarily the offender's prison conduct rather than the original offense when deciding if the parole ineligibility date should be reduced. The original offense is described to the jury in a statement of fact which fails to convey the full horror of the crime. Too much emphasis is placed on character which is often irrelevant to potential criminal behaviour. Furthermore, two thirds of the jury must agree on the decision: it need not be unanimous.
• If the jury decides to approve the offender's application, the offender is granted early parole eligibility and he or she may then seek actual parole by applying to the parole board.
• 1976 + 15 = 1991. Section 745 came into law in 1976. Only since 1991 has the public had to face the ramifications of that decision. A number of murderers, including Clifford Olson, are now becoming eligible for Section 745 judicial reviews.
• It is estimated that more than 500 inmates currently serving life sentences in Canada will be eligible to apply for early parole between now and 2007.
• Of 43 cases heard as of March 31, 1994, 19 applicants were given permission to apply for parole and 13 had their period of ineligibility reduced. Eleven applications were rejected. (Hamilton Spectator, June 6, 1994) Thus, in 74% of cases the original sentence given for the crime of murder has been changed.
• Families of murder victims are incensed when they discover, often a decade after the trial, that their loved one's murderer may make an application for a reduction of his or her life sentence using the little-known Section 745. It is difficult for the families of victims to comprehend that it is even an option and that tax dollars are being used to fund such a travesty. Families are faced with yet another court hearing after believing that they had put the past behind them for good.
• CAVEAT believes that first or second degree murderers should serve the full sentence as handed down by the original judge in the case when all the evidence was put before the jury.
• In March 1994, John Nunziata, M.P. for York South-Weston, Ontario, put a private members bill (Bill C-226) before the House of Commons calling for the repeal of Section 745 of the Criminal Code. On December 14th, 1994, Members of the House of Commons, including liberal backbenchers, voted 103 to 136 in favour of Nunziata's Bill. The Bill was then stalled at the House of Commons Justice Committee stage for over a year.
• On November 30, 1995, CAVEAT offices, along with Mr. Nunziata and other groups in support of the bill, held simultaneous press conferences across the country to rally support for C-226. It was feared the Bill would die in the House of Commons if Parliament decided to prorogue in early 1996.
• In February, 1996, the Chretien Government prorogued Parliament. Under this parliamentary practice, often used half-way through a government's term in office, all bills on the table are dropped and a new session of Parliament begins.
• Fortunately, the government ruled in March, 1996, to reinstate the Bill under a new name, Bill C-234.
• Several more public rallies for the repeal of Section 745 were held across Canada in early 1996. In January 1996, Darlene Boyd of Okotoks, Alberta, held a public forum attended by over 600 people. She also met privately with Justice Minister Allan Rock to discuss changes to Section 745. Ms. Boyd's daughter was murdered in 1982. Her daughter's killer will be eligible for a 745 hearing in early 1997.
• At a news conference in Calgary on February 17, Justice Minister Allan Rock said that he had "heard people loud and clear" and would introduce a number of changes to the Criminal Code in the spring. He said he would consider repealing Section 745 or toughening the law significantly.
• And today, June 11, 1996, Allan Rock finally announced some proposed changes to the section. However, CAVEAT sees it as only a first step toward the full repeal of Section 745.

Articles, Case Histories, and Victims' Perspectives

from CAVEAT's newsletter STOPWATCH - March 1994

Section 745 or

'The New Math': 15 Years Equals 25

In 1976, capital punishment for convicted murderers was eliminated in Canada. Mandatory life imprisonment became the sentence. People convicted of first-degree murder must serve twenty five years, while those convicted of second-degree murder must only serve between ten and twenty-five years (to be determined at the time of sentencing) before becoming eligible for parole.

At that same time, Section 745 of the Criminal Code of Canada was created and produced a 'loop hole' to these sentences. Section 745, simply put, states that if a person has been convicted of first or second-degree murder and has served 15 years of the sentence, he/she is allowed to apply to the court and ask for a reduction in the number of years of imprisonment without eligibility for parole.

On receiving the application, a judge brings together a jury to decide whether or not to reduce the time to be served. The jury will hear about the character of the applicant, his/her conduct while serving the sentence, the nature of the original offense and anything else the judge deems necessary. The jury can decide to reduce the number of years of imprisonment without eligibility of parole, set a time in the future for another hearing, or deny the application outright. Two-thirds of the jury must agree on a decision.

The Crown cannot re-try the original offense at this time. As John Nunziata, M.P., York South-Weston, stated, 'It must be remembered that during the reviews, the jury cannot take into account the circumstances of the crime or the notorious character of the inmate due to that crime. They can only hear evidence of how he has behaved in an institution.' The jury can only hear the nature of the offense. Because each Chief Justice is given the responsibility for making the rules respecting the actual procedure to be followed in a review, there is a potential for a different process in different parts of the country.

For example, in one case already heard, the courts 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 B.C. Supreme Court was prepared to admit evidence of Parole Board practices in order that the jury decision not be made 'in a vacuum.'

This discrepancy suggests that there is cause for concern as different processes could bring about different results in each review.

John Nunziata, M.P. will be introducing a Private Member's Bill that will remove the judicial review provisions of Section 745 of the Criminal Code for offenders serving life sentences. Nunziata states, 'When a person is sentenced to life in prison without eligibility for parole for twenty-five years, that is exactly what it should mean.' His bill will be presented to 'prevent people like Clifford Olson and Saul Betesh from walking the streets after serving only 15 years.'

A Convict's Perspective

In November, 1991, a communique issued by Senator Earl A. Hastings published an article by the President of the Warkworth Lifeservers Group, David Dobson, outlining how inmates serving life sentences can best use Section 745. In it, he reported on the group's meeting with community resource persons: namely, a lawyer, a parole office representative and a Corrections Canada employee.

The life servers were made aware of common denominators that were found in successful applications to Section 745 by other inmates in Canada. These 'hints' pointed out that the applicant exhibited remorse, maintained a pro-active, pro-social disposition (a model inmate), developed good interpersonal communication and leadership skills, and took an active role in the progress of his case. Dobson also stated that the applicant's changed behavior had been elaborated and supported by corrections officers, professionals, family and friends; the applicant would benefit from increased societal freedoms and supervision in the community and, that, having exhausted all institutional programming, continued confinement of the applicant was no longer deemed necessary for the protection of society.

Lifeservers were advised that during a hearing 'the Crown is not permitted to remodel the trial' and that the 15 year review is to be 'a clear process for establishing the applicants parolability based upon the applicants developments while incarcerated.'

Finally, Mr Dobson informed the group that only two thirds of the jury must be convinced of parolability based on probabilities not on reasonable doubt.

It is estimated that more than 500 inmates currently serving life sentences in Canada would be eligible through this legislation to apply for early parole between now and 2007.

A Victim's Perspective

The repercussions of Section 745 become evident when one is personally involved. Joanne Kaplinski is one such person. The following passages are from a letter about section 745 sent to CAVEAT by Ms. Kaplinski:

On January 29, 1978 my brother, Kenneth John Kaplinski, 24, was working as a night clerk at an inn in Barrie, Ontario. After a robbery, he was taken away by car and shot twice in the head at close range, execution style. His decomposed body was found two months later. Two men, Edward Sales and Allan Kinsella were each convicted of first degree murder and sentenced to life imprisonment with no parole for 25 years. Kinsella, 51, had an extensive criminal record, and was free on parole at the time.

On that night, I became a lifetime member of a very exclusive club, one in which no one wants membership because the dues are the death of a loved-one by violence.

This past December 1993, my family and I were incensed to find that the murderer of Ken was making an application for a reduction of his life sentence using the little-known Section 745. We can't believe that this is even an option, and it is equally astounding that our tax dollars are being used to fund such a travesty. As tax payers, we pay for the convict's legal expenses, court costs, the Crown Attorney's time, the expert witnesses' time, the police manpower assigned to 'protect' the criminal and other expenses.

When one stops to think that between 500 and 650 murderers have the 'right' to apply for a judicial review such as this within the next ten years, the financial implications for the law abiding average Canadian citizen are staggering.

For Mr. Kinsella, to have received early parole after serving only 15 years of his original sentence flies in the face of the decision handed down by the trial judge, who ordered Kinsella to life imprisonment with no parole eligibility for twenty-five years, NOT fifteen years.

My brother's young son, my family and myself have been sentenced to a lifetime of sorrow and loss. Why must we be further victimized by a judicial system that insists on turning a blind eye to the victims of crime; that insists on keeping us silent as it provides no opportunity for us to speak in these proceedings; and that insists on orchestrating itself around the rights of murderers rather than the rights of victims and their families? The very process itself is biased in favour of the offender, as it takes into account only four things:

• The character of the offender. This stresses the offender's reformed character. A bevy of Correctional Services Canada staff, family, friends, psychologists and others are then paraded before the jury to corroborate the 'new and improved' convict.
• The offender's conduct while serving his/her sentence. Good behavior in prison does not necessarily equate to good behavior as a citizen in society.
• The nature of the offence. The jury is forced to deal in abstracts, as they are only permitted to hear a reading of an 'agreed-to statement of facts' and do not hear any testimony from witnesses or surviving victims. We are required to sit mute as our loved one's life is reduced to a mere 'incident' on a criminal's rap sheet.
• Such other matters as the judge deems relevant in the circumstances. The sentiments of a judicial system that has corrupted its mandate to serve and protect are best expressed by the words of Justice Goodearle, when he denied our request for standing in this hearing to deliver a victim impact statement to the jury, 'The pain and anger of the Kaplinski family has no place in this Court.'

Who is this judge serving? I am concerned for impact upon our society as more and more persons like Mr. Kinsella are handed back from the penal system each year, who will spread throughout our population, who will live and move around us. How many of these criminals have truly been 'corrected' or 'reformed'? Fortunately, for society, for my family and myself, justice was served in Kinsella's judicial review. The jury denied his application for a reduction of his parole eligibility and instructed that he may not reapply before the 25 year sentence is completed. In this case, justice was served by the diligence and dedication of a superb Crown Attorney who managed to demonstrate the deficiencies, inaccuracies and flagrant deceptions present in the applicants case. A lesser effort by another Crown Attorney might have resulted in an entirely different outcome. Justice was served by the astuteness and courage of those jurors who took a stand to uphold the sanctity of life.

Upon the close of this review for Kinsella, we were advised by the Crown that the co-convicted murderer Edward Sales is proceeding with his application under Section 745. My family and I will soon be subjected to this outrage and indignation yet again. And we may never cancel our membership in the victim's club - a club where membership has no privileges.

from CAVEAT's Newsletter STOPWATCH - March 1995

Section 745: A 40% Discount on Life Sentences

A little-known section of Canada's Criminal Code gives murderers sentenced to life in prison the opportunity to apply for a reduction of up to 40% in time served. Nearly three out of four applicants get a reduction. Their victims never will.



Section 745 -- Background and Foreground

Background

In 1976, capital punishment for convicted murderers was eliminated in Canada and replaced with mandatory life imprisonment. People convicted of first degree murder had to serve a minimum of twenty-five years in prison while those convicted of second degree murder had to serve between ten and twenty-five years (to be determined by the judge at the time of sentencing) before becoming eligible for parole.

At the same time, Section 745 of the Criminal Code of Canada was introduced, producing a loophole to these sentences. Section 745, simply put, states that if a person has been convicted of first or second degree murder and has served fifteen years of the sentence, he/she is allowed to apply to the court to ask for a reduction in the number of years of imprisonment without eligibility for parole. In effect, the offender is asking for a reduction of their original sentence.

On receiving the application for review, a judge brings together a jury to decide whether or not to reduce the time to be served. The jury will hear about the character of the applicant, his/her conduct while serving the sentence, the nature of the original offence and anything else the judge might deem necessary. The jury can decide to reduce the number of years of imprisonment without parole, set a time in the future for another hearing, or deny the application outright. Two thirds of the jury must agree on the decision: it need not be unanimous.

The Crown cannot retry the original offence at this time. As John Nunziata, Member of Parliament for York South-Weston, stated, 'It must be remembered that during the reviews, the jury cannot take into account the circumstances of the crime or the notorious character of the inmate due to that crime. They can only hear evidence of how he has behaved in an institution.'

The jury is only allowed to hear the nature of the offence, not the chilling details.

Foreground

John Nunziata, MP, has introduced Private Member's Bill C-226, which calls for the removal of Section 745 from the Criminal Code. Nunziata has stated that, 'When a person is sentenced to life in prison without eligibility for parole for twenty-five years, that is exactly what it should mean.'

It is very unusual for a back-bencher's bill, especially one that is contrary to government policy, to reach the committee stage. In a free vote in the House of Commons on December 13, 1994, 136 Members of Parliament voted for the bill to be read a second time, thus referring it to committee for further study. Of the 103 members who voted against the motion, 9 were members of the Justice and Legal Affairs committee, and included its chairman and Section 745 author, Warren Allmand.

In a communiqué from March 1994, Nunziata said 'Section 745 is one of the fundamental flaws that is contributing to declining public confidence in our justice system. It is asking Canadians to accept new definitions for the penalty of murder. Life imprisonment does not mean life, it really means twenty-five years. Twenty-five years doesn't always mean twenty-five years, it's more likely to mean fifteen years.' He went on to say, 'The rights, concerns and lives of law-abiding citizens are neglected while our resources focus solely on ensuring that violent criminals, many of whom refuse treatment, are treated with kid gloves.'

CAVEAT will monitor the progress of C-226 to ensure that it does not get shelved at the committee stage.

We need every Canadian to contact her or his MP and express the importance of Bill C-226 to public safety.

Call your library or CAVEAT to find out the name of your MP.

Coming Soon to a Court Near You...

Some of the over 600 'lifers' who will be able to apply for review under Section 745 are listed below:

• Anthony Speciale, 47, is serving 'life' with no chance of parole for 23 years for the 'point blank range' shooting slayings of Stanley Norman, 33, and Bill Lianzakis, 30, and his brother Paul 23, in Toronto in 1977.
• Saul Betesh, 44, and Ronald Kribs, 47, are serving first degree murder terms for the brutal sex-slaying of a 12-year-old shoe shine boy, Emmanuel Jaques, in July, 1977.
• Ronald Neely, 53, went on a murder rampage in November, 1977 when his wife moved out with their four children. He killed his 13-year-old son with a shotgun and wounded two of his daughters. Family members fear that if he gets out early, he'll 'finish them off'.
• Craig Alfred Munro, 43, will be eligible for judicial review in March, 1995. He was a career criminal out on mandatory supervision when he murdered 30 year-old Metro Toronto policeman Michael Sweet during a robbery. The officer, a father of three, bled to death as Munro and his younger brother ignored Sweet's pleas to think of his family.
• Terrance Derek Musgrave, 38, will be eligible to apply for a judicial review in January, 1996. He is serving a life term without parole for 18 years for the 1981 murder of 43 year-old North York store owner Cathy Maruya. Her body had 28 stab wounds. Musgrave was out on mandatory supervision at the time of the murder.
• Daniel James Wood, 41, will become eligible to apply for early release in July, 1997. He is serving two life terms for the March, 1979 murder of Merla Laycock in Calgary and the July, 1982 murder of Judy Anne Delisle, 38, of Toronto. A Calgary police detective described Wood as 'the most evil man I have ever laid eyes on.' These offenders will also be able to apply for review on the following dates:
  
• Clifford Olson, August 12, 1996
  
• Colin Thatcher, May 7, 1999
  
• Helmut Buxbaum, July 23, 1999
  
• Allen Legere, November 19, 2005 Perhaps these are the people Justice Committee Chair Warren Allmand was referring to when he said:

"to keep them in for 25 years in my view is a waste of resources, a waste of a person's life ... Sometimes they catch their wives fooling around or vice versa and they kill and it's murder, but they've never committed another crime in their lives."

Of 43 cases heard as of March 31, 1994, 19 applicants were given permission to apply for parole and 13 had their period of ineligibility reduced. Eleven applications were rejected. (Hamilton Spectator, June 6, 1994) The range of clemency depended on the province. In 74% of cases the original sentence given for the crime of murder has been changed.

If you want these people back on the streets earlier than a judge and jury did, then do nothing. They will trickle out on their own. If you don't want them out early, then do any of the following:

• write, telephone and fax your MP and the members of the Justice Committee. Tell them to vote for Bill C-226 to repeal Section 745.
  
• contact CAVEAT for some postcards you can distribute to concerned people in your area.

'A Perfect Institutional Citizen'

Jon Rallo was convicted in 1977 of three charges of first degree murder in the deaths of his wife and two children. He was sentenced to three life terms with no parole for twenty-five years. As is frequently the case in Canada, the sentences are being served all at the same time.

In February, 1995, Mr. Rallo appeared before the courts, asking for a reduction in the time he must spend in prison before being eligible for parole, as is allowed by Section 745 of the Criminal Code.

The jury heard that during the seventeen years he has served in prison, Jon Rallo has been an ideal prisoner, earning privileges by carefully following all the rules.

For two-and-a-half days of the hearing, witness after witness was called to testify to his exemplary conduct and work habits. During his incarceration Mr. Rallo joined a self-help group for 'lifers', a holistic growth group, and an Italian culture group. He also performed office work at Kingston Penitentiary and at the Warkworth Institution, and earned a Bachelor of Arts degree in sociology.

Since 1986 he has been granted more than 20 escorted passes. His lawyer also stressed that psychiatric and psychological reports indicated that Jon Rallo at no time showed signs of depression or anxiety. This was interpreted to show that he was extremely stable and that, if released, he would not be a danger to himself or the public. The only aberration in his profile was that he showed an above-average need for control.

It is hard to reconcile this paragon of virtue with the man who, in 1976, brutally murdered his wife Sandra, 29, his son Jason, 6, and his daughter Stephanie, 5. As the Crown pointed out, nothing in Mr. Rallo's conduct before the murders suggested that he was capable of the deliberate and planned murder of his family. Similarly, his exemplary conduct while in prison did not preclude criminal behaviour out of prison.

He was a cool and collected person before he committed the crime. He is a cool and collected person today. Why should that be proof that he has changed at all in prison? Exemplary prison conduct in itself is not a guarantee of public safety.

The nature of the testimony on behalf of the applicant emphasized the great chasm that exists between the courts' and the public's attitudes to the nature and purposes of sentencing on the one hand, and the attitude of Corrections Canada, case workers, psychologists, and parole officers on the other.

It would seem that for Corrections 'experts', the rehabilitation of the offender is paramount. Mac Stienberg, of the Appeal Division of the National Parole Board, has been quoted as saying, '...give some of them six months of counselling and release them. They'll not kill again.'

However, in his charge to the jury, Justice Paul Philp stressed that they 'are required to set a balance between the consideration of leniency for a well-behaved convict... and the community interest in the continued repudiation of the type of conduct that led to these murders.'

This time the community won! The jury decided that the nature of the crimes was so horrible that no reduction of time to be served was possible. Jon Rallo will return to prison to continue serving his life sentence. He can apply for parole in the year 2002.

One unusual aspect of this hearing was the admission of victim testimony. Generally, the victim has no role in a judicial review hearing. However, over the objections of Mr. Rallo's lawyer, Justice Philp ruled that Mrs. Pollington, mother and grandmother of the victims, could give evidence on the impact of not knowing where Jason's body was hidden. She was not allowed to talk about the crime itself, but she was allowed to talk about the effect of Mr. Rallo's refusal to reveal the location of his son's body. Her powerful testimony moved several jury members to tears.

The very fact that such a hearing was taking place at all was resented by the Pollingtons and other members of the public. Mr. Pollington was quoted in the Globe and Mail: 'We've lost three kids and he's only served a sentence for one. And then they're prepared to reduce the sentence even further on the basis that he's been good and won't recommit'.

To their immense relief, the Pollingtons will be spared the possibility of another judicial review hearing. By setting August, 2002 as the date of any future application, the jury ensured that another judicial review of Mr. Rallo's sentence under Section 745 would not take place.

The jury's decision was a victory for common sense. However, the public cannot count on common sense to prevail every time. Indeed, most applicants have been successful in receiving a reduction in the number of years without eligibility for parole.

Section 745 must be repealed. The public's faith in the justice system is tenuous at best. The fact that a triple murderer has the right even to ask for review before serving twenty-five years tests that faith even further.

from CAVEAT's newsletter STOPWATCH - 1996 Volume II

Changes to Early Parole Law Promised by Rock

• Should murderers have the right to apply for early parole, based primarily on good behaviour?
• Section 745 of the Criminal Code allows first or second degree murderers to apply to the courts for a reduction in their parole eligibility date.
• Bill C-234 (formerly C-226) to repeal this law has been stalled in Parliament since December 1994.
• Justice Minister Allan Rock claims he has heard Canadians loud and clear on this and other justice issues and action will be forthcoming.
• CAVEAT demands swift and committed action by the government­­the fate of this Bill lies in its hands.

Bill C-226 to repeal Section 745, the early parole law, nearly died when the Chrétien government decided to prorogue parliament in February of this year. Under this parliamentary practice, often used half-way through a government's term in office, all bills on the table are dropped and a new session of Parliament begins.

Fortunately, the government ruled in March to reinstate all bills that had already passed 2nd reading (see p. 6). Thus, Bill C-226, now reinstated as Bill C-234, is again before the Justice Committee, where it has been stalled since December, 1994. CAVEAT unequivocally supports the repeal of Section 745 and demands that the government move on this bill now.

We believe that murderers should serve the full sentence handed down by the judge at the trial when all the evidence was put before the jury.

We are not alone in our concern. Canadians are becoming outraged as they learn of the full implications of Section 745. Families who thought offenders convicted of first degree murder were locked away for at least 25 years are now discovering that this is not necessarily the case. Many families of murder victims have launched campaigns to alert the public to the potential impact of this law. Through petitions and news conferences, they have kept the issue in headlines across the country.

Darlene Boyd of Okotoks, Alberta, decided to go public when she discovered that the killer of her daughter Laurie will be able to use this loophole early next year to try to escape serving his full sentence. Laurie was abducted, raped and murdered in January, 1982 by Jim Peters and Bob Brown. The men were also found guilty of the abduction, rape and beating death of Debbie Stevens of High River, Alberta in December, 1981. Brown committed suicide in prison, but Peters' parole review date is February, 1997.

Ms. Boyd organized public meetings, met with Justice Minister Allan Rock, and attended press conferences, all in an effort to drum up public support for the repeal of Section 745. Boyd warns that everyone should be aware of the loophole, because more and more convicted murderers are becoming aware of the clause and taking advantage of it. Six hundred 'lifers' could apply for early parole within the next 10 years.

Every lifer has the right to a hearing under this section. Even Clifford Olson, one of Canada's most infamous serial killers, will be able to apply for a hearing and has apparently begun preparations. One hopes that no jury would allow someone like Olson to apply for early parole, but over 75% of applications for early parole eligibility have been successful. Even if he does not succeed in convincing the jury that he is a changed man and deserves a chance for early release, the very idea that Olson can apply is disturbing to many people. Victims are traumatized again as they relive the tragedies that have caused them so much anguish.

We hope Justice Minister Allan Rock is getting the message. He has expressed concern about Section 745, but has not agreed that it should be scrapped completely. In the past he has suggested that changes could be made to improve the law, and wants the entire sentencing process for murder examined.

At a news conference in Calgary on Saturday, February 17, Rock said that he has "heard people loud and clear" and will introduce a number of changes to the Criminal Code in the spring. He will consider repealing Section 745 or toughening the law significantly. However, mere tinkering with the law will not satisfy Darlene Boyd. "I want it [s. 745] gone and I made it clear to [Rock]." She urges the public to write or phone their MP to ensure the repeal of the parole review law. "One voice is a whisper; many a shout."

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