The federal government will delay parole eligibility for a decade or more beyond the current 25 years for some murderers, backing off a plan to make life truly mean life in prison by denying some convicted killers any hope of parole.
The new plan would also require the Justice Minister to approve release on parole for some categories of first-degree murder, reintroducing a political element that was removed in the 1950s.
The change came after senior government officials become increasingly concerned about the constitutionality of sentencing people to life in prison without any prospect of release, and The Globe and Mail reported on the plans last week.
A bill setting out the changes could be introduced in Parliament as early as this week, a source said.
Political approval of a release would hark back to an era when parole for federal prisoners did not exist. From 1899 until the 1950s, the governor-general decided on the conditional release of prisoners on the recommendation of what today would be called the public safety minister. That ended with the creation of the Parole Board in 1959. The death penalty was mandatory for capital murder (now known as first-degree murder) until 1961.
Life without parole is a common sentence in the United States, found in all states except Alaska; 40,000 prisoners, including some who committed their crimes before they turned 18, are serving it. But Canadian Justice Department lawyers advised Justice Minister Peter MacKay, Public Safety Minister Steven Blaney and the cabinet that the courts would almost certainly rule life without hope of release unconstitutional, and pressed that case especially vigorously.
"They must have pressed so hard because I know they press on every other issue, and rarely win the day," the source said, citing federal laws such as the one that toughened early parole rules in 2011 for non-violent first-time federal offenders. The Supreme Court of Canada unanimously struck down a part of that law because it applied retroactively.
Under federal law, first-degree murder brings an automatic life sentence, with parole eligibility after 25 years and parole supervision after release lasting for life. The new rules would not apply to all first-degree murders. They would apply automatically to those who kill police officers and jail guards, and those who kill someone while committing another crime, such as sexual assault, hijacking, forcible confinement or terrorism. The rules would be at a judge's discretion for especially brutal planned and deliberate killings, and thereby compel the conclusion that the killers would always be too dangerous to set free.
The Globe reported last week that the government was developing a plan that had not yet received cabinet approval to deny parole to these categories of killer.
"We finally have a government that has the backbone to stand up to some of these individuals," Sharon Rosenfeldt, president of Victims of Violence, a national advocacy group, said of the most violent killers.
She said toughening the rules of release is not vengeance. "To me, it's proper morals. Once they cross over the line into degrading violence, they cannot turn to the same human rights that they so blatantly walked over. They were the judge, jury and executioner."
Legal experts said they believe the long mandatory wait without a government objective to justify it would still be deemed unconstitutional.
"Forget about cruel and unusual [punishment]," said Allan Manson, who teaches law at Queen's University in Kingston. "It's the notion of arbitrariness – that people's right to liberty can't be affected by state action that is arbitrary in the sense of not pursuing a legitimate societal objective."
Archie Kaiser, who specializes in criminal law at Dalhousie University's Schulich School of Law in Halifax, said he thinks justice ministers might introduce "invidious" considerations into the release process. "The minister might think about community reaction or political gains or losses."
A spokesperson for Mr. MacKay repeated the government's message from last week, which cited the 2013 Throne Speech on the need to make a life sentence mean life. "Canadians do not understand why the most dangerous criminals would ever be released from prison."
There has been little, if any, public discussion of dangers posed by paroled first-degree murderers. The National Parole Board says it does not keep statistics on the number of murders they commit. Statistics Canada's justice branch also says it does not keep such data. Correctional Service Canada says its numbers are not readily available.
A study of 658 murderers released on full parole between 1975 and 1990 found that five were convicted of committing another murder – but none of the five was originally convicted of first-degree murder.
The change, which still needs to be debated and voted on by Parliament, would be the third major reform of punishment in the past four years. In 2011, the Conservative government did away with the faint-hope clause, which allowed some killers to apply to a jury after 15 years for an early parole hearing. That clause was part of the compromise that ended capital punishment in 1976, when Parliament created the 25-year wait for a first chance at parole but, in view of the feeling of some members of Parliament that it was cruelly long, supplied an earlier way out.
Also in 2011, the government passed a law in which the wait for parole could be made consecutive for multiple murderers. One killer of three has since been jailed for 40 years without parole, and another for 75. That law has not been challenged in the courts.