CAVEAT's Preliminary Analysis of the Amendments Concerning Section 745

The Department of Justice has announced amendments to the Criminal Code's so-called Faint Hope clause, which allows offenders to apply for a reduction in parole ineligibility after serving 15 years of their sentence.

Currently, s.745 of the Criminal Code grants the automatic right for convicted first and second degree murderers to apply for a reduction of the time that must be served on their sentences before they are eligible for parole.

After serving 15 years of their sentence, a first or second degree murderer is automatically entitled to a review of that sentence.

At the review hearing, a judge and jury will hear evidence about the character of the applicant, the conduct of the applicant while serving the sentence, and the nature of the offence committed.

The jury will determine whether the offender should be eligible to apply for early parole. In the case of first-degree murderers sentenced to 25 years of parole ineligibility, a 745 application can be made after serving only 15 years of the sentence.

December the 14th, 1994, Bill C-226, a private member's bill which, if adopted, would repeal s.745, passed second reading in the House of Commons by a vote of 136 to 103. This indicates that there is clear support in the House for the full repeal of Section 745.

Among the changes are:

The murderer's automatic right under the current s.745 to apply for a review of parole eligibility after completing 15 years of a life sentence will be eliminated.

Instead, a first or second-degree murderer must now, upon completion of 15 years, make an application to a superior court judge who would determine whether there is a reasonable chance of a successful review by judge and jury.

The judge determining the initial application will consider written submissions of offender, the crown, victims of crime, and the police. The judge will not hear oral evidence in making this determination.

Persons convicted of multiple murders will not be allow to apply for sentence review at all.

This new law will take effect immediately and will apply to both future and current murderers.

All murderers, including multiple murderers, currently in custody, may apply for a review under the old s.745 procedure, but must first make an application to the superior court judge to satisfy the "reasonable chance of success" criterion.

If a hearing is granted, it will be before a judge and jury. The jury will be required to reach a unanimous verdict.

Persons "newly" convicted of more than one murder are barred from applying for parole eligibility review, including the discretionary review.

CAVEAT Comment

The Good

CAVEAT acknowledges that the Federal government's amendments to s.745 are a step in the right direction in restoring the credibility of life sentences in the Canadian criminal justice system.

The Bill effects some important changes to the law as it now stands, including:
the requirement of jury unanimity in any determination to change parole eligibility
the retraction of a murderer's statutory right to a review, and
the exclusion of multiple killers from applying altogether.

On these grounds, the changes to s.745 are progressive steps towards ensuring that the victims of crime and the public at large are protected from violent criminals.

As such, CAVEAT urges all Members of Parliament to vote in favour of the passage of these amendments.

The Bad

The new amendments create a new level of bureaucracy in the application screening prior to any hearing.

Judicial decisions may presumably be appealed at every level in the process, from discretionary review right through to the parole hearing.

Caution should be employed when examining any law that offers a discount to the offender based on the number of lives taken. The amendments would indicate that one murder is acceptable but two murders create a heinous criminal.

There are no significant changes to the actual review process apart from jury unanimity.

The standard of consideration remains the same, with only "the character of the applicant, the conduct of the applicant while serving his sentence, the nature of the offence and such other matters [deemed relevant by the judge]". This means that the offender and his behaviour in custody are still the focus. The full details and impact of the crime are not presented for consideration.

Criticisms and Questions:

What is the exact designation of a multiple killer who is barred from making an application? Is it only multiple first degree murderers or persons who have been convicted of other unlawful death offences previously (criminal negligence causing death, for example)?

The new amendments create two different levels of first degree murder: the first time and the second time.

The amendments create yet another level of reviewable judicial bureaucracy. Murderers, with the exception of future multiple offenders, still have the right to a hearing before a judge to determine the offender's probability of success.

In effect, victims of murderers eligible to apply for a review will now face submitting their victim's impact statement as many as three times at the discretion of the judge. This does not include possible appeals at various levels.

The distinction that is drawn between killers who have committed multiple murders as opposed to a single murder is offensive in the extreme. The heinous nature of any murder must be reflected in the conditions of incarceration. Consecutive sentencing is the appropriate vehicle to reflect the number of murders and the circumstances of each crime.

Of equal concern are women killed in acquaintance or domestic relationships. In the majority of these cases there is a single murder at the hands of an abusive partner. Under the current s.745, these abusive killers have been deemed a "good risk", posing little threat to society once they've killed their wives.

On December 14th, 1994, Members of the House of Commons, including liberal backbenchers, voted 103 to 136 in favour of John Nunziata's Bill C-226 to repeal Section 745. Why has this Bill, passed through second reading in the House, languished in Committee?

On what constitutional grounds is a convicted murderer granted the absolute right to a process that alters the sentence of a court?

Is it necessary to have Section 745 at all?

Summary

The proposed amendments to s.745 recognise the heinous nature of multiple murder crimes and revokes the absolute right of automatic parole eligibility review for multiple murderers.

The distinction that is drawn between killers who have committed multiple murders as opposed to a single murder is offensive in the extreme. The heinous nature of any murder must be reflected in the conditions of incarceration. Consecutive sentencing, not early parole eligibility, is the appropriate vehicle to reflect the number of murders and the circumstances of each crime.

However, the recognition that no avenue for early review should be provided to multiple murderers in the future as well as a screening process and unanimous jury verdicts in granting leave to apply for early parole are first steps in challenging Section 745.

CAVEAT will continue to demand the full repeal of Section 745 as well as demanding consecutive sentencing to reflect the true extent of victimisation and killing.

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