Benjamin Perrin is a law professor at UBC and senior fellow at the Macdonald-Laurier Institute, which is publishing his latest paper analyzing the Life Means Life Act (macdonaldlaurier.ca). He formerly served as special adviser, legal affairs and policy in the Office of the Prime Minister.
Life imprisonment doesn't necessarily mean life in Canada – but for the most heinous killers, it should.
Our most severe penalty gives the most atrocious murderers parole eligibility after 25 years into their "life" sentence – and many are paroled. The federal government's Bill C-53 (Life Means Life Act) would change this by making life imprisonment without parole a mandatory sentence for heinous murders (such as planned and deliberate murders of police officers or planned and deliberate murders while the accused is committing sexual assault, hostage-taking or terrorism). These lifers could apply after 35 years to the federal Cabinet for "executive release."
Heinous murderers should face stiffer sentences for several reasons. First, the Criminal Code treats all first-degree murders the same, while some are more deplorable than others. The murder of a police officer is already deemed to be a first-degree murder punishable with life without parole eligibility for 25 years. If such a murder involves planning and deliberation, the same sentence applies.
Likewise, a murder while committing sexual assault, hostage-taking or terrorist activity is already deemed to be a first-degree murder punishable with life without parole eligibility for 25 years. Again, the same sentence applies if such a murder involves planning and deliberation. Bill C-53 singles out these heinous murders for harsher punishment.
Second, Bill C-53 communicates society's condemnation of heinous murders and punishes these worst of crimes with the most severe penalty that is available, short of the death penalty. It recognizes that if such killers were actually granted parole after 25 years when they currently become eligible to apply for it, that would be an injustice.
Third, victims have applauded the proposed law. Presently, once a murderer becomes eligible to apply for parole, hearings are automatically held every two years until the offender is released or dies in prison, regardless of whether they have made any progress towards rehabilitation or continue to pose a serious risk. Family members of murder victims represented 45 per cent of all victim presentations at parole hearings in 2010-11. The trauma and suffering they endure cannot be ignored.
Fourth, life without parole protects the public by permanently separating heinous killers from law-abiding Canadians. According to the Parole Board of Canada, long-term follow-up of 1886 convicted murderers who were granted parole during a 14-year period (1994 to 2008) found that 13 per cent breached their parole conditions, 6 per cent committed non-violent offences and 3 per cent committed violent offences.
On the other hand, critics of Bill C-53 say that it is unnecessary and vulnerable to a Charter challenge. However, given that 22 per cent of paroled murderers had their parole revoked over a 14-year period, it is not at all clear that the system is working well.
Take last week's police announcement of a Canada-wide arrest warrant for Francis Patrick Clancy, who was picked up by Victoria police on Monday. He was granted parole while serving a life sentence for murdering an innocent young man by smashing his face repeatedly with an axe. Shockingly, he was assessed as a "moderate high risk for general and violent offending" just prior to being day-paroled. Police had warned the public that Clancy was violent and not to approach him.
These are killers who breached the trust given to them for a second chance (actually, often a third, fourth, or many more chances) to rehabilitate – after already taking the life of another. Parole conditions are set to ensure risk factors for violently reoffending are not triggered, so their breach is especially concerning.
Case law suggests life without parole is constitutionally defensible. Recently, in United States of America v. 'Isa, the Alberta Court of Appeal allowed extradition to proceed for an accused facing life without parole in the U.S. The Supreme Court of Canada denied leave to appeal last year.
While a sentence of life imprisonment without parole with a meaningful review process for extraordinary release is likely constitutionally acceptable, Bill C-53 is vulnerable to being struck down by the Supreme Court of Canada for imposing it on a mandatory basis and for certain aspects of the executive release regime.
Bill C-53 should be amended so that life without parole would be a discretionary – not a mandatory – sentencing option for heinous murders. Judges should also have the option of ordering a fixed-term parole ineligibility period of between 25 and 75 years for heinous murders.
All offenders serving life sentences with parole ineligibility periods greater than 35 years should be eligible to apply for executive release up until the time that they become eligible for parole. And the Parole Board of Canada should independently assess all applicants for executive release to enhance transparency and accountability of executive release decisions, something Bill C-53 doesn't currently provide for.
Heinous murderers are not sentenced as severely as they should be in Canada and there is constitutional room to enhance their penalties. However, Bill C-53 overreaches in this effort and thus risks failing to achieve needed reform.