Judicial Review of Parole Ineligibility for Murder

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This page was last substantively updated or reviewed December 2019. (Rev. # 89435)

General Principles

See also: Delayed Parole Eligibility

Section 745.61 permits a person convicted of first-degree murder to request to apply for parole before the mandatory 15-year mark. This is sometimes referred to as the "faint hope" application for early release.

A judge must screen applications for reduction under s 745.61. The judge must determine if there is a reasonable prospect of success on a balance of probabilities.[1] This determination requires the screening judge to review all relevant written materials and perform limited weighing of evidence.[2] The judge is not to evaluate whether the applicant will be successful only whether there is reasonable possibility of success.[3]

The purpose of the review provisions under s. 745.63 is the "re-examine a decision in light of new information or factors which could not have been known initially."[4]

Constitutionality

The amendments from 1997 and 2011 that create the requirements that there be judicial screening in writing before a jury may hear the application was found to be constitutional.[5]

The changes to the process in the 2011 amendments requiring judicial screening cannot apply retroactively to those convicted before the changes. [6]

  1. R v Dulay, 2009 ABCA 12 (CanLII), 457 AR 206, per curiam
  2. Dulay, ibid.
  3. Dulay, ibid.
  4. R v Swietlinski, 1994 CanLII 71 (SCC), [1994] 3 SCR 481, per Lamer CJ, at 492-493
  5. R v Dell, 2015 ONSC 1570 (CanLII), 334 CRR (2d) 289, per Maranger J appealed to 2018 ONCA 674 (CanLII), per Doherty JA
    contra R v Simmonds, 2018 BCCA 205 (CanLII), 362 CCC (3d) 215, per Dickson JA - found violation of s. 11(i) but saved under s. 1 of Charter.
  6. Dell (ONCA), ibid.

Procedure

Each province has enacted rules for the procedure to make such an application.[1]

See also: R v Morrison, 2012 ABQB 619 (CanLII), 293 CCC (3d) 416, per Martin J

Legislation

Application for judicial review

745.6 (1) Subject to subsections (2) to (2.6) [circumstances eligible for review of parole ineligibility], a person may apply, in writing, to the appropriate Chief Justice in the province in which their conviction took place for a reduction in the number of years of imprisonment without eligibility for parole if the person

(a) has been convicted of murder or high treason;
(a.1) committed the murder or high treason before the day on which this paragraph comes into force;
(b) has been sentenced to imprisonment for life without eligibility for parole until more than fifteen years of their sentence has been served; and
(c) has served at least fifteen years of their sentence.
Exception — multiple murderers

(2) A person who has been convicted of more than one murder may not make an application under subsection (1) [application for judicial review of parole ineligibility], whether or not proceedings were commenced in respect of any of the murders before another murder was committed.

Less than 15 years of sentence served

(2.1) A person who is convicted of murder or high treason and who has served less than 15 years of their sentence on the day on which this subsection comes into force may, within 90 days after the day on which they have served 15 years of their sentence, make an application under subsection (1) [application for judicial review of parole ineligibility].

At least 15 years of sentence served

(2.2) A person who is convicted of murder or high treason and who has served at least 15 years of their sentence on the day on which this subsection comes into force may make an application under subsection (1) within 90 days after

(a) the end of five years after the day on which the person was the subject of a determination made under subsection 745.61(4) [timing of re new application if judge does not set new date] or a determination or conclusion to which subsection 745.63(8) [hearing before jury – if no decision re new application] applies; or
(b) the day on which this subsection comes into force, if the person has not made an application under subsection (1) [application for judicial review of parole ineligibility].
Non-application of subsection (2.2)

(2.3) Subsection (2.2) [application for judicial review of parole ineligibility – at least 15 years served] has no effect on a determination or decision made under subsection 745.61(3) [judge may reject application and delay or prevent new applications] or (5) [designation of judge to empanel jury] or 745.63(3) [hearing before jury – jury determines reduction unanimously], (5) [hearing before jury – jury determines amount of reduction by two-thirds vote] or (6) [hearing before jury – decision re new application] as it read immediately before the day on which this subsection comes into force. A person in respect of whom a time is set under paragraph 745.61(3)(a) [judge may reject application and delay new applications 5 years or more] or 745.63(6)(a) [hearing before jury – set new hearing in 5 years or more] as it read immediately before that day may make an application under subsection (1) [application for judicial review of parole ineligibility] within 90 days after the end of that time.

Further five-year period if no application made

(2.4) If the person does not make an application in accordance with subsection (2.1) [application for judicial review of parole ineligibility – less than 15 years served], (2.2) [application for judicial review of parole ineligibility – at least 15 years served] or (2.3) [application of (2.2) re retrospective cases], as the case may be, they may make an application within 90 days after the day on which they have served a further five years of their sentence following the 90-day period referred to in that subsection, as the case may be.

Subsequent applications

(2.5) A person who makes an application in accordance with subsection (2.1) [application for judicial review of parole ineligibility – less than 15 years served], (2.2) [application for judicial review of parole ineligibility – at least 15 years served] or (2.3) [application of (2.2) re retrospective cases], as the case may be, may make another application under subsection (1) [application for judicial review of parole ineligibility] within 90 days after

(a) the end of the time set under paragraph 745.61(3)(a) [judge may reject application and delay new applications 5 years or more] or 745.63(6)(a) [hearing before jury – set new hearing in 5 years or more], if a time is set under that paragraph; or
(b) the end of five years after the day on which the person is the subject of a determination made under subsection 745.61(4) [timing of re new application if judge does not set new date] or a determination or conclusion to which subsection 745.63(8) [hearing before jury – if no decision re new application] applies, if the person is the subject of such a determination or conclusion.
Subsequent applications

(2.6) A person who had made an application under subsection (1) [application for judicial review of parole ineligibility] as it read immediately before the day on which this subsection comes into force, whose application was finally disposed of on or after that day and who has then made a subsequent application may make a further application in accordance with subsection (2.5) [application for judicial review of parole ineligibility – subsequent application], if either paragraph (2.5)(a) [application for judicial review of parole ineligibility – murder or high treason – subsequent application] or (b) [application for judicial review of parole ineligibility – life with 15 years or more – subsequent application] is applicable.
(2.7) The 90-day time limits for the making of any application referred to in subsections (2.1) to (2.5) [application for judicial review of parole ineligibility – more than 15 years served] may be extended by the appropriate Chief Justice, or his or her designate, to a maximum of 180 days if the person, due to circumstances beyond their control, is unable to make an application within the 90-day time limit.
(2.8) If a person convicted of murder does not make an application under subsection (1) [application for judicial review of parole ineligibility] within the maximum time period allowed by this section, the Commissioner of Correctional Service Canada, or his or her designate, shall immediately notify in writing a parent, child, spouse or common-law partner of the victim that the convicted person did not make an application. If it is not possible to notify one of the aforementioned relatives, then the notification shall be given to another relative of the victim. The notification shall specify the next date on which the convicted person will be eligible to make an application under subsection (1) [application for judicial review of parole ineligibility].
(3) For the purposes of this section and sections 745.61 to 745.64 [proceedings re reduction of parole ineligibility (faint hope)], the appropriate Chief Justice is

(a) in relation to the Province of Ontario, the Chief Justice of the Ontario Court;
(b) in relation to the Province of Quebec, the Chief Justice of the Superior Court;
(c) in relation to the Province of Newfoundland and Labrador, the Chief Justice of the Supreme Court, Trial Division;
(d) in relation to the Provinces of New Brunswick, Manitoba, Saskatchewan and Alberta, the Chief Justice of the Court of Queen’s Bench;
(e) in relation to the Provinces of Nova Scotia, British Columbia and Prince Edward Island, the Chief Justice of the Supreme Court; and
(f) in relation to Yukon, the Northwest Territories and Nunavut, the Chief Justice of the Court of Appeal.

1993, c. 28, s. 78; 1995, c. 22, s. 6; 1996, c. 34, s. 2; 1998, c. 15, s. 20; 2002, c. 7, s. 146; 2011, c. 2, s. 3; 2015, c. 3, s. 55.
[annotation(s) added]

CCC (CanLII), (DOJ)


Judicial screening

745.61 (1) On receipt of an application under subsection 745.6(1) [application for judicial review of parole ineligibility], the appropriate Chief Justice shall determine, or shall designate a judge of the superior court of criminal jurisdiction to determine, on the basis of the following written material, whether the applicant has shown, on a balance of probabilities, that there is a substantial likelihood that the application will succeed:

(a) the application;
(b) any report provided by the Correctional Service of Canada or other correctional authorities; and
(c) any other written evidence presented to the Chief Justice or judge by the applicant or the Attorney General.
Criteria

(2) In determining whether the applicant has shown that there is a substantial likelihood that the application will succeed, the Chief Justice or judge shall consider the criteria set out in paragraphs 745.63(1)(a) to (e), with any modifications that the circumstances require.

Decision re new application

(3) If the Chief Justice or judge determines that the applicant has not shown that there is a substantial likelihood that the application will succeed, the Chief Justice or judge may

(a) set a time, no earlier than five years after the date of the determination, at or after which the applicant may make another application under subsection 745.6(1) [application for judicial review of parole ineligibility]; or
(b) decide that the applicant may not make another application under that subsection.
If no decision re new application

(4) If the Chief Justice or judge determines that the applicant has not shown that there is a substantial likelihood that the application will succeed but does not set a time for another application or decide that such an application may not be made, the applicant may make another application no earlier than five years after the date of the determination.

Designation of judge to empanel jury

(5) If the Chief Justice or judge determines that the applicant has shown that there is a substantial likelihood that the application will succeed, the Chief Justice shall designate a judge of the superior court of criminal jurisdiction to empanel a jury to hear the application.
1996, c. 34, s. 2; 2011, c. 2, s. 4.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 745.61(1), (2), (3), (4), and (5)

Hearing of application

745.63 (1) The jury empanelled under subsection 745.61(5) [designation of judge to empanel jury] to hear the application shall consider the following criteria and determine whether the applicant’s number of years of imprisonment without eligibility for parole ought to be reduced:

(a) the character of the applicant;
(b) the applicant’s conduct while serving the sentence;
(c) the nature of the offence for which the applicant was convicted;
(d) any information provided by a victim at the time of the imposition of the sentence or at the time of the hearing under this section; and
(e) any other matters that the judge considers relevant in the circumstances.
Information provided by victim

(1.1) Information provided by a victim referred to in paragraph (1)(d) [hearing before jury – decision re new application – other info] may be provided either orally or in writing, at the discretion of the victim, or in any other manner that the judge considers appropriate.
(2) [Repealed, 2015, c. 13, s. 34]

Reduction

(3) The jury hearing an application under subsection (1) [hearing before jury – criteria for reduction of ineligibility] may determine that the applicant’s number of years of imprisonment without eligibility for parole ought to be reduced. The determination to reduce the number of years must be by unanimous vote.

No reduction

(4) The applicant’s number of years of imprisonment without eligibility for parole is not reduced if

(a) the jury hearing an application under subsection (1) [hearing before jury – criteria for reduction of ineligibility] determines that the number of years ought not to be reduced;
(b) the jury hearing an application under subsection (1) [hearing before jury – criteria for reduction of ineligibility] concludes that it cannot unanimously determine that the number of years ought to be reduced; or
(c) the presiding judge, after the jury has deliberated for a reasonable period, concludes that the jury is unable to unanimously determine that the number of years ought to be reduced.


Where determination to reduce number of years

(5) If the jury determines that the number of years of imprisonment without eligibility for parole ought to be reduced, the jury may, by a vote of not less than two thirds of the members of the jury,

(a) substitute a lesser number of years of imprisonment without eligibility for parole than that then applicable; or
(b) terminate the ineligibility for parole.
Decision re new application

(6) If the applicant’s number of years of imprisonment without eligibility for parole is not reduced, the jury may

(a) set a time, no earlier than five years after the date of the determination or conclusion under subsection (4) [hearing before jury – when jury not satisfied], at or after which the applicant may make another application under subsection 745.6(1) [application for judicial review of parole ineligibility]; or
(b) decide that the applicant may not make another application under that subsection.
Two-thirds decision

(7) The decision of the jury under paragraph (6)(a) [hearing before jury – set new hearing in 5 years or more] or (b) must be made by not less than two thirds of its members.

If no decision re new application

(8) If the jury does not set a date on or after which another application may be made or decide that such an application may not be made, the applicant may make another application no earlier than five years after the date of the determination or conclusion under subsection (4) [hearing before jury – when jury not satisfied].
1996, c. 34, s. 2; 1999, c. 25, s. 22(Preamble); 2011, c. 2, s. 5; 2015, c. 13, s. 34.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 745.63(1), (1.1), (3), (4), (5), (6), (7), and (8)

Rules

745.64 (1) The appropriate Chief Justice in each province or territory may make such rules as are required for the purposes of sections 745.6 to 745.63 [application and procedure for review of parole ineligibility].

Statutory Instruments Act

(1.1) The Statutory Instruments Act does not apply to those rules.

Territories

(2) When the appropriate Chief Justice is designating a judge of the superior court of criminal jurisdiction, for the purpose of a judicial screening under subsection 745.61(1) [judicial screening of review of parole ineligibility] or to empanel a jury to hear an application under subsection 745.61(5) [designation of judge to empanel jury], in respect of a conviction that took place in Yukon, the Northwest Territories or Nunavut, the appropriate Chief Justice may designate the judge from the Court of Appeal of Yukon, the Northwest Territories or Nunavut, or the Supreme Court of Yukon or the Northwest Territories or the Nunavut Court of Justice, as the case may be.
1996, c. 34, s. 2; 1999, c. 3, s. 53; 2002, c. 7, s. 147(E); 2019, c. 25, s. 306.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 745.64(1), (1.1) and (2)

Parole prohibited

746.1 (1) Unless Parliament otherwise provides by an enactment making express reference to this section, a person who has been sentenced to imprisonment for life without eligibility for parole for a specified number of years pursuant to this Act shall not be considered for parole or released pursuant to a grant of parole under the Corrections and Conditional Release Act or any other Act of Parliament until the expiration or termination of the specified number of years of imprisonment.

Absence with or without escort and day parole

(2) Subject to subsection (3) [parole prohibited – young offenders req one-fifth], in respect of a person sentenced to imprisonment for life without eligibility for parole for a specified number of years pursuant to this Act, until the expiration of all but three years of the specified number of years of imprisonment,

(a) no day parole may be granted under the Corrections and Conditional Release Act;
(b) no absence without escort may be authorized under that Act or the Prisons and Reformatories Act; and
(c) except with the approval of the Parole Board of Canada, no absence with escort otherwise than for medical reasons or in order to attend judicial proceedings or a coroner’s inquest may be authorized under either of those Acts.
Young offenders

(3) In the case of any person convicted of first degree murder or second degree murder who was under the age of eighteen at the time of the commission of the offence and who is sentenced to imprisonment for life without eligibility for parole for a specified number of years pursuant to this Act, until the expiration of all but one fifth of the period of imprisonment the person is to serve without eligibility for parole,

(a) no day parole may be granted under the Corrections and Conditional Release Act;
(b) no absence without escort may be authorized under that Act or the Prisons and Reformatories Act; and
(c) except with the approval of the Parole Board of Canada, no absence with escort otherwise than for medical reasons or in order to attend judicial proceedings or a coroner’s inquest may be authorized under either of those Acts.

1995, c. 22, s. 6, c. 42, s. 87; 1997, c. 17, s. 2; 2012, c. 1, ss. 160, 201.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 746.1(1), (2) and (3)

Right of Appeal From a Decision to Review Ineligibility

Appeal

745.62 (1) The applicant or the Attorney General may appeal to the Court of Appeal from a determination or a decision made under section 745.61 on any question of law or fact or mixed law and fact.

Documents to be considered

(2) The appeal shall be determined on the basis of the documents presented to the Chief Justice or judge who made the determination or decision, any reasons for the determination or decision and any other documents that the Court of Appeal requires.

Sections to apply

(3) Sections 673 to 696 [appeal of indictable offences, including to SCC] apply, with such modifications as the circumstances require.
1996, c. 34, s. 2.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 745.62(1), (2) and (3)

History of Provisions

See Also