BACKGROUNDER SECTION 745 AMENDMENTS

In 1976, Parliament abolished capital punishment and replaced it with mandatory life sentences for high treason, first degree murder and second degree murder. Parole ineligibility periods were established at the same time: 25 years for high treason and first degree murder, and 10 years for second degree murder with the judge having the power (after considering any recommendation from the jury) to increase the period up to 25 years.

The inclusion of section 745 as part of the murder penalties in 1976 was an integral part of the overall scheme approved by Parliament at that time. Until 1976, the average time spent by those convicted of capital murder in prison before parole was 13 years. For non-capital murder it was 7 years. Parliament was also aware that other countries to which Canada compares itself in terms of social values and conditions has an average of 15 years of imprisonment before parole. Even the United States of America imprisons people, where they are not executed for murder, to an average of 18 years. Finally, it must be remembered that section 745 applications are not decided by judges, lawyers or bureaucrats; these applications come before 12 members of the community who sit together on a jury.

Section 745 allows a person who has been convicted of murder or high treason, and has served 15 years of their sentence, to have their parole ineligibility period reviewed. It was added to the Criminal Code at the time the parole ineligibility periods were established, to provide a degree of hope for the rehabilitation of convicted murderers, as protection for prison guards, and in recognition that in some cases, the public interest may not be served by keeping offenders in prison beyond 15 years.

The government has now concluded a review of section 745, including extensive consultations. The government has come to the conclusion that section 745 should remain an integral part of the sentencing provisions for murder, but that there should be amendments to focus it more narrowly and to ensure that it operates in only the most deserving of cases.

The current section 745 process

Under the present procedure, offenders, including those who have killed more than one person, may apply to the Chief Justice of the superior court in the province in which their conviction took place for a judicial review. Twelve ordinary citizens, drawn from the community, are then called upon to form a jury to hear the application.

The community jury must consider the character of the applicant, their conduct while serving the sentence, the nature of their offence and other matters considered relevant by the judge in the circumstances. After hearing the application, the jury may reduce or eliminate the parole ineligibility period. Where it does not, the jury must say if and when the offender may apply again for another review. The decision on the application must be made by at least two-thirds (eight out of twelve) of the jurors.

If their parole ineligibility period is reduced, offenders may apply for parole to the National Parole Board. The Board considers the case and decides whether or not to grant parole. Not all applications to the Board lead to the offender's release. In making its decision, the Board must consider whether the offender's release will present an undue risk to society.

The life sentence imposed on persons convicted of murder continues for the rest of their life. Where such an offender is released on parole, the offender continues to be subject to the sentence and can be sent back to prison should he or she breach any of the conditions of release imposed by the Parole Board.

An amendment has already been made to section 745 by Bill C-41 (the Sentencing Bill), to allow the perspective of the victim to be considered more fully during the hearing of the application. This amendment, which is not yet in force, states that the jury, in making its determination, must consider any information provided by a victim at the time of sentencing or at the section 745 hearing.

Proposed amendments

Right to apply

It is proposed that multiple murderers be denied access to section 745. Multiple murderer will be defined as anybody who murders more than one person. This change will affect all persons who commit multiple murders (including serial murders) after the bill comes into force.

Review process

- Screening process. A screening process for all section 745 applications is proposed. Under this process, applicants, including those presently serving sentences for murder, will be required to persuade a superior court judge to whom the application is made that the application has a reasonable prospect of success, before proceeding to a hearing before the section 745 jury.

The screening process will apply in all applications from now on, including applications from murderers who are already incarcerated, except where an application has already been made before the bill comes into force.

The criteria to be applied at the screening stage will be the same criteria used by the jury at the full review. The screening stage review will be conducted on the basis of written materials only. Both the Crown and the applicant will be allowed to submit evidence in an affidavit. Where the applicant is screened out, the judge may decide whether and when the applicant may apply again. In no case will the applicant be allowed to apply again before two years have passed. Any subsequent application will again be subject to the screening process.

- Requirement for jury unanimity. It is also proposed that in order for a section 745 jury to reduce an offender's parole ineligibility, all members of the community jury must agree. This proposal will apply in all applications to be heard from now on, including to those applicants now serving time for murder, except where an application has already been made before the bill comes into force.

If the jury cannot reach a unanimous decision to reduce the ineligibility period, the application will be denied. Where the application is denied, the jury may decide if and when the applicant can apply again. An applicant could under no circumstances apply within two years of the previous application. Where the jury agrees unanimously that the applicant's parole ineligibility period ought to be reduced, a decision on the length of the reduction could be made by two-thirds of the jury members.