Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.
Bill C-53, An Act to amend the Criminal Code and the Corrections and Conditional Release Act and to make related and consequential amendments to other Acts (short title: Life Means Life Act) was introduced in the House of Commons on 11 March 2015 by the Minister of Justice, the Honourable Peter MacKay. The bill "follows through on the 2013 Speech from the Throne commitment to ensure that a life sentence means a sentence for life."1 The bill died on the Order Paper at first reading when Parliament was dissolved in August 2015 for the 42nd election.
The bill amends the Criminal Code to make a sentence of imprisonment for life without parole mandatory for the offences of high treason and first degree murder that is planned and deliberate in specific circumstances, such as the murder of a police officer or a correctional officer acting in the course of his or her duties.
It also allows a judge to impose a sentence of imprisonment for life without parole at sentencing for second degree murder if this was not the accused's first murder conviction. The court's decision is to be based on the accused's age and character, the nature of the offence, the circumstances surrounding its commission and any jury recommendation.
The proposed new Criminal Code orders for mandatory and discretionary life imprisonment without parole are incorporated into the National Defence Act's Code of Service Discipline, making imprisonment for life without parole also applicable to persons convicted by military courts.
Bill C-53 also amends the Corrections and Conditional Release Act to establish the process through which an offender who is sentenced to imprisonment for life without parole can apply to the Minister of Public Safety for executive release after serving at least 35 years of his or her sentence.
Finally, amendments to the International Transfer of Offenders Act make Canadian offenders sentenced abroad to life imprisonment without parole ineligible for parole in Canada in most cases where the circumstances in which the offence was committed were such that, if the offence had been committed in Canada, the offender would have been subject to mandatory life imprisonment without parole.
The government has said that, in introducing the bill, it aimed to "align Canada's criminal justice approach with likeminded countries such as the United Kingdom, New Zealand, the United States, and Australia."2
An overview of the measures in place in these countries or some of their states3 shows that there are indeed laws that allow sentences of life imprisonment without parole. However, in most of these jurisdictions, these are not automatic mandatory minimum sentences.4 In other words, judges are not completely bound to impose a sentence of imprisonment for life without parole; they have varying degrees of discretion to avoid imposing this sentence.
In some jurisdictions, life sentences are not minimums. In others, judges have the discretion to depart from the rules and reduce the parole ineligibility period in certain circumstances. For example, in New Zealand, judges may reduce the parole ineligibility period if the court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust not to do so.5 In England and Wales, while the court must consider life without parole in specific circumstances, it is not required to make such an order if it believes that applying such a sentence is not justified because of mitigating factors.6
Moreover, in England and Wales, sentences of life imprisonment without parole may not be imposed on individuals who were younger than 21 years old at the time of the offence.7 While this sentence has already been imposed on minors in the United States, on 25 June 2012 in Miller v. Alabama8, the Supreme Court ruled that this was unconstitutional.9 As in a 2005 ruling banning the death penalty for young offenders, the United States Supreme Court ruled that the offender's youth should be considered a mitigating circumstance. At the time of the Miller ruling, legislation in 29 American states and federal legislation authorized sentences of life imprisonment without parole for young offenders convicted of murder.10
Historically, there have been three means by which those sentenced to imprisonment in Canada can be released into the community before the expiry of their sentence: by an act of clemency; by remission of sentence; or by release on parole.11
Clemency, also known as the Royal Prerogative of Mercy, is a discretionary power based on the right of the monarch to grant mercy. It is exercised by the Governor General or the Governor in Council (i.e., the federal Cabinet), based upon a ministerial recommendation, usually that of the Minister of Public Safety Canada. Section 748 of the Criminal Code codifies the ability to grant clemency into two types of pardons, namely free pardons and conditional pardons.
A free pardon is based on innocence; it is recognition that a conviction was in error and erases the consequences and records of the conviction. A free pardon may be granted if there is new evidence to prove the innocence of the convicted person and all appeal mechanisms under the Criminal Code or other pertinent legislation have been exhausted.
A conditional pardon is the release of an inmate prior to eligibility for release under the Corrections and Conditional Release Act (CCRA).12 In order for a conditional pardon to be granted, the inmate must be ineligible for any other form of release under the CCRA, and there should not be a risk of the offender reoffending. A conditional pardon may also be granted in advance of eligibility under the Criminal Records Act.13 Such a pardon causes a criminal record to be kept separate and apart from other records in the same manner as a regular pardon (now called a record suspension).14 In addition, the Governor General can grant a remission of all or part of a sentence, a respite or interruption in the execution of a sentence, and relief from a prohibition, such as one prohibiting the possession of firearms.15
The Parole Board of Canada (PBC) reviews clemency applications, conducts investigations at the direction of the Minister of Public Safety Canada and makes recommendations to the Minister regarding whether to grant the clemency request. For a clemency request to be granted, there must be clear and strong evidence of injustice or undue hardship (e.g., suffering of a mental, physical and/or financial nature that is out of proportion to the nature and the seriousness of the offence and more severe than for other individuals in similar situations).16
A second form of release from imprisonment before the expiry of a sentence is statutory release, which is defined in section 99 of the CCRA as "release from imprisonment subject to supervision before the expiration of an offender's sentence, to which an offender is entitled under section 127." The statutory release date is at the two-thirds mark of the sentence. Statutory release can be refused if there is considered to be a risk that the offender will commit a serious offence if released. The sentence continues to run while the offender is in the community and there is supervision of the offender. Statutory release can be revoked and the offender returned to incarceration should there be a breach of the release conditions. Those serving life or indeterminate sentences are not entitled to statutory release.
The third type of release into the community before the expiration of a sentence of imprisonment is parole, an early form of which was introduced into Canadian law by the Ticket of Leave Act in 1899.17
In 1992, the Corrections and Conditional Release Act (CCRA) became the statute setting out the rules for parole. One of the most significant aspects of the CCRA is an articulation of the purpose and principles of parole, one form of conditional release. As expressed in section 100 of the CCRA, the purpose of conditional release is "to contribute to the maintenance of a just, peaceful and safe society by means of decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law-abiding citizens."
There are two types of parole: day parole and full parole. Day parole allows an offender to participate in community-based activities, such as employment or volunteer work, during the day and then return to an institution every evening. Full parole allows an offender to serve the rest of his or her sentence under supervision in the community. The offender is normally allowed to live independently but must report to a parole officer on a regular basis. If the conditions of release on parole are not followed, parole can be suspended and/or revoked and the offender may be returned to an institution. For most offenders, eligibility for full parole comes after serving one third of the sentence or seven years, whichever is less. Eligibility for day parole for most offenders comes six months prior to full parole eligibility.
Section 161 of the Corrections and Conditional Release Regulations18 sets out conditions that apply to every release on parole or statutory release. Some of these conditions require an offender to remain within a certain geographical area and report regularly to his or her parole supervisor, while others require an offender to report immediately any change of address or any change in employment, educational training, or volunteer work.
In addition, under section 133 of the CCRA, the Parole Board may impose any conditions on parole that it considers reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender. This may include conditions to protect a victim, including an order that the offender abstain from having any contact, including communication by any means, with the victim or from going to any specified place. The Board may also require the offender on parole to reside in a community-based residential facility (such as a halfway house).
In Canada, adult offenders convicted of first degree murder or high treason receive an automatic sentence of life imprisonment without eligibility for full parole before 25 years. Those serving a life sentence for second degree murder are eligible for full parole after serving between 10 and 25 years, as determined by the judge at sentencing. That said, when these individuals have prior murder convictions, the sentence provided under sections 745(b) and 745(b.1) of the Criminal Code is life imprisonment without eligibility for parole for 25 years.
Further to amendments made to the Criminal Code in 2011, which allow judges to impose consecutive parole ineligibility periods for multiple murders committed after 23 March 201119, a small number of offenders are currently serving a sentence of life imprisonment without eligibility for full parole for a period of between 25 and 75 years.20
Offenders serving a life or indeterminate sentence may apply for day parole three years before they are eligible for full parole.21
Since 1997, the "dangerous offender" designation at sentencing automatically results in an indeterminate prison sentence.22
Offenders with such a designation are normally eligible for parole after serving seven years of their sentence. Their cases are then reviewed every two years by the PBC (section 761 of the Criminal Code) to determine whether they meet the criteria for conditional release. However, those designated as "dangerous offenders" who have also been convicted of murder are not eligible for parole until they have served between 10 and 25 years, depending on their sentence.23 Therefore the ineligibility period pertaining to the murder applies. The ineligibility period could even be longer for individuals who received consecutive parole ineligibility periods.
As mentioned earlier, offenders serving life or indeterminate sentences are not eligible for statutory release.
As of 14 April 2013, 5,335 offenders were serving a life or indeterminate sentence in the federal correctional system.24 This group made up 23% of the total Correctional Service of Canada (CSC) population.25 Most of them (64.4%) were serving their sentence in custody. Of those serving their sentence under community supervision, the majority were serving a life sentence for second degree murder (81.9%).26
Offenders serving a life or indeterminate sentence might never be granted parole and would then spend their entire lives in prison. However, the current system does not provide such a guarantee at sentencing. Under the Criminal Code and the CCRA, these offenders periodically have their cases reviewed by the PBC to determine whether they meet conditional release criteria.
Offenders who continue to pose an unacceptable risk to society remain in custody for life, while those who meet parole criteria may be granted day parole or full parole. Parole for these offenders is never automatic. Parole necessarily depends on a PBC decision, which is based on the assessment of the risk that the offender poses to society.27 When these offenders are granted parole, they continue to serve their sentences in the community. They must therefore comply with the conditions imposed by the PBC, and they are subject to correctional supervision for the rest of their lives. They may be reincarcerated if their parole conditions are not met or if the PBC receives information to the effect that they now pose an undue risk to the community.
In Canada, offenders sentenced to life imprisonment without eligibility for full parole for 25 years spend an average of 28 years in custody before being granted conditional release.28 Research shows that offenders serving a life sentence have low rates of reoffending. A CSC study shows that only 3.5% of these offenders committed a new offence during the five years following their release under community supervision.29 The study shows that offenders serving a life sentence for homicide were more likely to succeed in the community, compared to those serving a life sentence for other types of offences. This is consistent with findings by the PBC, which stated in its Performance Monitoring Report 2008–09 that over the previous 10 years, only 1% of offenders serving a life sentence for homicide had been reincarcerated for a new offence after being granted day parole.30
Bill C-53 amends the Criminal Code provisions relating to the parole admissibility of offenders convicted of murder and high treason, making a sentence of imprisonment for life without parole mandatory in certain circumstances, and making such a sentence discretionary in others. Imprisonment for life without parole does not apply to young persons that have been convicted of murder or high treason committed when they were under the age of 18 years (new section 744.1(1), amended section 745 and existing section 745.1 of the Criminal Code).
Currently, persons sentenced to imprisonment for life without parole for a specified number of years may not be granted day parole or unescorted temporary absences prior to three years before the expiry of the ineligibility period. As described in the table below, under Bill C-53, persons sentenced to imprisonment for life without parole are not eligible for unescorted temporary absences, day parole or full parole.
Unescorted Temporary Absence a (CCRA, s. 115; Criminal Code, ss. 746.1 and 747) | Day Parole (CCRA, s. 119; Criminal Code, ss. 746.1, 744.1 and 745.31) | Full Parole (CCRA, s. 120; Criminal Code, ss. 746.1 and 747) | Executive Release (Part II.1 of the CCRA) | |
---|---|---|---|---|
First degree murder and high treason | 22 years | 22 years | 25 years (Criminal Code, s. 745)b | N/A |
Second degree murder | 7–22 years | 7–22 years | 10–25 years (Criminal Code, s. 745.4) | N/A |
Second degree murder with prior murder conviction | 22 years | 22 years | 25 years (Criminal Code, s. 745) | N/A |
Multiple murders | 3 years earlier than full parole | 3 years earlier than full parole | Option to order that parole ineligibility periods be served consecutively (Criminal Code, s. 745.51) | N/A |
Dangerous offenders | 4 years | 4 years | 7 years (Criminal Code, s. 761) | N/A |
Bill C-53: Life without parole | N/A | N/A | N/A | 35 years |
Notes : a. Maximum security offenders are not eligible for an unescorted temporary absence (CCRA, s. 115(3)) .[ Return to text ]
b. Application can be made for a reduction of the required number of years of imprisonment for parole eligibility after 15 years served (Criminal Code, s. 745.6). No reduction in the required number of years of imprisonment for parole eligibility is available for offenders who committed murders after 2 December 2011.[ Return to text ]
Source : Table prepared by the authors based on the Criminal Code, the Corrections and Conditional Release Act and Bill C-53.
Proposed new section 744.1(1) of the Criminal Code provides that an offender convicted of high treason or first degree murder that is planned and deliberate and committed under specified circumstances must be sentenced to imprisonment for life without parole. Specifically, imprisonment for life without parole applies upon a conviction for any of the following offences:
In cases involving murder that is planned and deliberate, the prosecutor must give notice to the accused prior to a plea being entered that he or she intends to apply to have the accused sentenced to imprisonment for life without parole (new section 744.1(2) of the Criminal Code).
Where a sentence of life imprisonment without parole is not mandatory, new section 745.31(1) of the Criminal Code provides sentencing judges with the discretion to make such an order where an offender is convicted of:
The judge's discretion is to be exercised by taking into consideration the age and character of the accused, the nature of the offence and the circumstances surrounding its commission, as well as any jury recommendation as to whether the accused should be sentenced to life imprisonment without parole (pursuant to new section 745.32 of the Criminal Code).
Before the court can consider making such an order, the prosecutor must bring an application for the order to be made, on notice to the accused prior to a plea being entered (new section 745.31(2) of the Criminal Code).32
Clause 7 of the bill amends section 745 of the Criminal Code, which provides the parole ineligibility periods for life sentences. Some changes to the section reflect the addition of the new mandatory and discretionary orders of imprisonment for life without parole in new sections 744.1(1) and 745.31(1) of the Criminal Code, while others specify that the possibility of increasing the ineligibility period does not apply to offenders previously convicted of another murder, as, in that case, the ineligibility period is a minimum of 25 years (amended sections 745(c) and 745.4 of the Criminal Code).
Proposed new section 745.001 of the Criminal Code requires that where an accused charged with murder is being tried by a court composed of a judge and jury and the prosecutor has given notice of an application to have the accused sentenced to imprisonment for life without parole, the judge presiding at the trial must instruct the jury that if its members find the accused guilty of the murder, they must also make specific findings upon rendering their verdict, namely, the jury must specify:
While it is the role of the jury to specify under section 745.001(e) that the accused's behaviour associated with the offence was of a brutal nature, under new section 744.1(3), the judge is required to determine whether that behaviour was of such a brutal nature as to compel the conclusion that the future behaviour of the accused is unlikely to be inhibited by normal standards of behavioural restraint.33
Bill C-53 provides that where an offender has been convicted of committing more than one murder, the Criminal Code provision allowing orders for consecutive parole ineligibility periods for offenders previously convicted of murder does not apply if the offender has previously been sentenced to imprisonment for life without parole (new sections 745.21(3) and 745.51(4) of the Criminal Code).
An offender convicted of an indictable offence may appeal to a court of appeal on the basis of several enumerated grounds, including an appeal against:
Bill C-53 adds additional grounds of appeal related to the new mandatory and discretionary orders for a sentence of imprisonment for life without parole. An offender subject to such an order may appeal:
Similarly, section 676 of the Criminal Code concernsthe matters that may be appealed by the Attorney General to a court of appeal. These include:
Bill C-53 adds that the Attorney General may appeal:
Temporary absences for specific purposes are generally the first form of release that an inmate in the federal system may be granted in order to assist integration into the community.34 It is said that temporary absences are "the first opportunity for the Correctional Service of Canada and the [Parole Board of Canada] to gauge how well an offender adjusts when the restrictions of the penitentiary environment are removed." 35 There are two types of temporary absences: escorted temporary absences and unescorted temporary absences. Both are forms of release into the community that generally last for a maximum of 15 days.
Currently, persons sentenced to imprisonment for life or another indeterminate sentence may not be granted unescorted temporary absences prior to three years before the expiry of the full parole ineligibility period. Escorted temporary absences can, however, be granted for medical reasons, or in order for the offender to attend judicial proceedings or a coroner's inquest. In addition, with the approval of the PBC, an escorted temporary absence could be granted for other reasons in the three years prior to the expiry of the full parole ineligibility period, including for contact with family members, personal development and/or counselling, and participation in community service work projects (sections 746.1(1) and 746.1(2) of the Criminal Code and section 17.1 of the CCRA).
With Bill C-53, new section 747 of the Criminal Code provides that offenders serving sentences of imprisonment for life without parole may never be granted unescorted temporary absences. Moreover, they may only be granted escorted temporary absences:
Part III of the National Defence Act sets out the Code of Service Discipline, which applies to members of the Canadian Armed Forces and to certain other persons. The Code of Service Discipline sets out offences unique to the armed forces (such as mutiny or desertion), as well as the procedure for the holding of courts martial. By the terms of section 130 of the Act, an act or omission that is punishable under the Criminal Code or any other Act of Parliament constitutes an offence under the Code of Service Discipline, and where a service tribunal convicts a person of such an offence, minimum punishments provided in the Criminal Code or any other Act of Parliament – such as imprisonment for life for murder and high treason – apply.
With Bill C-53, under new section 226.01(1) of the National Defence Act, mandatory imprisonment for life without parole also applies to an accused being sentenced under the National Defence Act who has beenconvicted of high treason or first degree murder committed under the circumstances specified in new section 744.1(1)(b) of the Criminal Code. Additionally, mandatory imprisonment for life without parole applies to an accused convicted of:
As with the Criminal Code procedure, in cases involving murder that is planned and deliberate, notice that the prosecutor intends to apply to have an accused sentenced to imprisonment for life without parole must be provided to the accused. Likewise, if the panel of a General Court Martial specifies under section 226.11(e) that the accused person's behaviour, associated with the offence, is of a brutal nature, the military judge shall determine whether that behaviour is of such a brutal nature as to compel the conclusion that the accused's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint.36
The new Criminal Code section 745.31 discretionary power of judges to order life imprisonment without parole is also incorporated into the Code of Service Discipline, giving military judges the discretion to order life imprisonment without parole where an offender is convicted of first degree murder (other than first degree murder to which the mandatory order for life imprisonment without parole applies) or second degree murder, where the offender has previously been convicted of murder or genocide, crimes against humanity or war crimes based on an intentional killing (amended sections 226.1(1) and 226.1(2) of the National Defence Act).
The amendments also incorporate the Criminal Code provisions (with any modifications that the circumstances require) that provide the factors that a judge is to consider in the exercise of the discretion to order life imprisonment without parole and that require:
As with the new Criminal Code provisions, specified findings are to be made by the panel in the application of the mandatory and discretionary orders of imprisonment for life without parole (new section 226.11 of the National Defence Act). Moreover, imprisonment for life without parole does not apply to young persons convicted of the specified offences when they were under the age of 18 years (new section 226.01(1) and amended section 226.1 of the National Defence Act).
Clauses 15 to 17 of Bill C-53 amend the CCRA. Part II of the CCRA is entitled "Conditional Release, Detention and Long-Term Supervision." This part sets out the constitution and jurisdiction of the PBC, as well as the rules applying to various forms of release from imprisonment, including unescorted temporary absences, day parole, full parole, statutory release and long-term supervision.
Clause 17 of Bill C-53 adds Part II.1 to the CCRA, entitled "Executive Release" (new sections 156.01 to 156.28). As set out in section 156.02, an offender sentenced to life without parole may apply to the Minister of Public Safety for executive release after having served a minimum of 35 years of his or her sentence.
Upon receipt of an application for executive release, the Minister of Public Safety may direct the PBC to assess the offender's case under new section 156.03 of the CCRA. Section 156.03 states that the PBC is to assess whether the release of the offender would present an undue risk to society. The PBC is also to assess whether the release of the offender will help protect society by successfully reintegrating him or her into society as a law-abiding citizen.
These two guidelines for the assessment of a release request mirror the purpose of conditional release set out in section 100 of the CCRA, namely contributing to the maintenance of a just, peaceful and safe society by means of decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law-abiding citizens. Section 100.1 of the CCRA states that, in the determination of all cases, the protection of society is the paramount consideration for the PBC and the provincial parole boards.
New section 156.03 of the CCRA also sets out that the CSC shall provide all the information the PBC needs to make a proper assessment about the potential release of an inmate. Under new section 156.04, this information, along with any other that is relevant to the assessment of the request for executive release, is to be provided to the offender. Information may be withheld from the offender if the PBC concludes that its release might jeopardize safety or security or the conduct of any lawful investigation.
New section 156.05 stipulates that the offender must be given a reasonable opportunity to make written representations to the PBC as part of the assessment of his or her case. The assessment is then provided to the Minister under new section 156.06, with a copy being provided to the offender. New section 156.07 provides for the Minister to review the offender's application for release, either upon receipt of the PBC's report or, if the PBC was not asked for its assessment, upon receipt of the application. The CSC is directed to provide the Minister with any information relevant to the Minister's review of the application.
The Minister's assessment will be based upon a determination of whether the fundamental purpose and objectives of sentencing have been met by the portion of the sentence that the offender has served. The purposes of sentencing are set out in section 718 of the Criminal Code and include denouncing unlawful conduct, deterring the offender and other persons from committing offences, separating offenders from society, assisting in rehabilitating offenders, providing reparations for harm done to victims or to the community and promoting a sense of responsibility in offenders, and acknowledging the harm done to victims and to the community. In addition, Bill C-32, which is now An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts,38 amended section 718 to, among other things, emphasize that the fundamental purpose of sentencing is to "protect society."
The objectives of sentencing are set out in sections 718.01 and 718.02 of the Criminal Code. Section 718.01 states that, when a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it must give primary consideration to the objectives of denunciation and deterrence of such conduct. Section 718.02 states that, when a court imposes a sentence for an offence under section 270(1) (assaulting a peace officer), section 270.01 (assaulting a peace officer with a weapon or causing bodily harm), section 270.02 (aggravated assault of a peace officer), or section 423.1(1)(b) (intimidation of a justice system participant), the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.
A number of criteria are to be considered in determining whether the fundamental purpose and objectives of sentencing have been met. These criteria include:
Humanitarian or compassionate reasons can also constitute grounds, under section 156.07, for granting release. Such reasons can include the likelihood that the offender's physical or mental health will suffer serious damage if the offender continues to be held in confinement.
In addition to the offender's being provided with the information that the CSC and the PBC have furnished to the Minister, under section 156.09 he or she is also given the opportunity to make representations in writing to the Minister. The victim is also permitted to provide a statement describing the harm done to him or her, including continuing harm, as a result of the commission of the offence. A complainant, as described in section 156.12(3), may provide a similar statement. Both a victim and a complainant may express any safety concerns they have concerning a potential release.
Under section 156.11(1), it is the Governor in Council that makes the decision concerning executive release, although this is done on the recommendation of the Minister. If the offender's application is denied, he or she must wait five years before making another application. If an offender is released, the mandatory and discretionary conditions set out in section 156.14 apply to that release.
In addition to the mandatory conditions of release described in section 161 of the Corrections and Conditional Release Regulations, the PBC may impose any conditions on an executive release that it considers reasonable and necessary to protect society and to facilitate the offender's successful reintegration into society. One example given in the bill is the possibility that the offender be required to reside in a community-based residential facility.
Section 156.13 specifies that the PBC has exclusive jurisdiction and absolute discretion to impose, remove or vary the conditions of release as well as to terminate or revoke an offender's executive release. The PBC may also approve an escorted release for medical reasons, to allow the offender to attend judicial proceedings or a coroner's inquest, for administrative or compassionate reasons, for community service, for personal development for rehabilitative purposes or for family contact, including parental responsibilities. The broad powers of the PBC with respect to executive release mirror those found in section 107 of the CCRA. In fact, many of the provisions in Bill C-53 closely reflect those already found in the CCRA.
New section 156.24 requires that, when the release of an offender is imminent, the CSC notify the police in the relevant area (if it is known) and provide all the information it has that is relevant to the supervision of the offender. New section 156.25 makes it clear that while an offender who is released on executive release is entitled to be at large, he or she continues to serve his or her sentence and is entitled to remain at large in accordance with the conditions of the sentence and is not liable to be returned to custody by reason of the sentence unless the executive release is suspended, terminated or revoked.
New section 156.26 ensures that many of the provisions of the CCRA that apply to parole also apply to executive release. For example, offenders on executive release may be subjected to urinalysis if there is a suspected breach of a release condition (section 55 of the CCRA) and be required to wear a monitoring device (section 57.1 of the CCRA). New section 156.26 also incorporates the purposes and principles of conditional release into executive release.
Section 156.16 makes provision for the possible suspension, termination or revocation of an executive release. When an offender breaches a condition of his or her executive release or when a designated official is satisfied that the release must be suspended in order to prevent a breach of any condition of the release or to protect society, the release may be suspended and the offender may be apprehended and recommitted to custody until the suspension is cancelled or the release is terminated or revoked. Within 30 days, the offender's case is to be reviewed and either the suspension is to be cancelled or the case is to be referred to the PBC, stating the conditions, if any, under which the offender could resume his or her executive release.
If the case is referred to the PBC, the Board will review it and either cancel the suspension or terminate or revoke the executive release if it is satisfied that the offender, by reoffending, will present an undue risk to society. A termination is the result if the undue risk is due to circumstances beyond the offender's control, while a revocation applies in any other case. If the PBC cancels a release suspension, it may reprimand the offender or vary the release conditions. If the offender has violated the conditions of release on more than one occasion, the PBC can order that the cancellation of the suspension not take place for up to 30 days. If the PBC is satisfied at any time that the continued executive release of the offender would constitute an undue risk to society by reason of the offender reoffending, it may terminate the release.
Under section 156.2, if an offender's executive release is terminated or revoked, he or she is recommitted to custody and continues to serve the sentence. If the release has been terminated, the offender must wait one year before applying again for release, while the wait is five years if the release has been revoked.
Under Bill C-53, new section 156.21 makes provision for a hearing by the PBC to review any suspension, termination or revocation of an offender's executive release. Observers (including victims) may attend such a hearing as long as they do not adversely affect it. The offender may have an assistant present at the hearing to advise him or her and to address the members of the PBC. Victims and complainants attending as observers may present a statement describing the harm done to them, including continuing harm, by the commission of the offence and commenting on the possible release of the offender. Statements need not be presented in person, but a transcript of the statement must be submitted to the hearing board in advance.
As with the original decision on whether to grant an executive release, under new section 156.22, information that is to be considered in a suspension, termination or revocation hearing is to be disclosed to the offender. In this instance, it should be provided at least 15 days in advance of the hearing. Information may be withheld from the offender if the PBC concludes that its release might jeopardize safety or security or the conduct of any lawful investigation.
Clauses 24 through 28 of Bill C-53 coordinate the entry into force of some of its provisions with those of three other bills: C-12, C-479 and C-32.
An Act to amend the Corrections and Conditional Release Act (Bill C-12), requires the PBC (or a provincial parole board, if applicable) to cancel parole granted to an offender if, before the offender's release, the offender tests positive in a urinalysis, or fails or refuses to provide a urine sample, and the PBC considers that the criteria for granting parole are no longer met. It also clarifies that any conditions set by a releasing authority on an offender's parole, statutory release or unescorted temporary absence may include conditions regarding the offender's use of drugs or alcohol, including in cases when that use has been identified as a risk factor in the offender's criminal behaviour. Bill C-12 received Royal Assent in June 2015. The coordinating amendment will add to the general conditions of an executive release in section 156.14(2) of the CCRA a statement that those conditions may include one regarding the offender's use of drugs or alcohol.
An Act to amend the Corrections and Conditional Release Act (fairness for victims) (Bill C-479), concerns the role of victims in parole hearings of offenders serving sentences of at least two years for offences involving violence. More specifically, it deals with the following:
Bill C-479 received Royal Assent in April 2015. The coordinating amendments will ensure that the changes to the role of victims in parole hearings set out in that bill also apply to proceedings concerning executive releases.
An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts (Bill C 32) enacts the Canadian Victims Bill of Rights, which, among other things, affords victims a right to information about the following:
It also gives victims these rights:
The coordinating amendments will ensure that the rights that will be afforded to victims in the criminal justice and corrections systems will also apply to the proposed system of executive releases.
The International Transfer of Offenders Act enables offenders to serve their sentences in the country of which they are citizens or nationals upon the consent of the offender, the foreign entity and Canada (through the consent of the Minister of Public Safety). After an offender is transferred, his or her sentence is administered in accordance with the laws of the receiving country. The stated purpose of the Act is to enhance public safety and to contribute to the administration of justice and the rehabilitation of offenders and their reintegration into the community by enabling offenders to serve their sentences in the country of which they are citizens or nationals.
In the case of a conviction in a foreign country for what would be considered first degree murder in Canada, section 24(1) of the Act provides that the full parole ineligibility period is 15 years for offences committed before 2 December 2011 and 25 years for offences committed on or after that day.
With Bill C-53, new section 24(1.1) of the Act makes Canadian offenders sentenced abroad to life imprisonment without parole also ineligible for parole in Canada where, in the opinion of the Minister of Public Safety, the documents supplied by the foreign entity40 show that the circumstances under which the offence was committed were such that, if the offence had been committed in Canada, it would have constituted an offence described in section 744.1(1)(a) of the Criminal Code or met the criteria of any of the circumstances described in sections 744.1(1)(b)(i) to 744.1(1)(b)(iii) of the Criminal Code, namely:
* Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force. [ Return to text ]
While courts martial are similar to civilian criminal trials, they maintain a distinct military character. Each court martial is composed of either a military judge alone, known as a Standing Court Martial (SCM), or a military judge with a panel of five Canadian Forces (CF) members, known as a General Court Martial (GCM). The panel in a GCM performs a function roughly analogous to that of a jury in the civilian justice system.[ Return to text ]
For the purposes of this Act, any of the following individuals may act on the victim's behalf if the victim is dead or incapable of acting on their own behalf:
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