The Conservative government is moving to give juries an important role in determining whether convicted killers receive a life sentence without the possibility of parole, under a bill introduced in Parliament on Wednesday.
Juries would have to decide, among other things, if a planned and deliberate killing was "brutal" – though the law does not offer any criteria for determining that. If the answer is yes, the jury would be asked if it wishes to make a non-binding recommendation to the judge for a sentence of life without parole.
And if a judge accepts the recommendation, life without parole would mean freedom is impossible, even on appeal to cabinet after 35 years, except in cases of terminal illness or other humanitarian grounds, Justice Minister Peter MacKay told reporters.
"This means essentially they will take their last breath behind bars," he said of the bill. The bill spells out, however, that a prisoner can be released after 35 years if cabinet decides that the "fundamental purpose" of the sentencing has been achieved.
Mr. MacKay said the purpose of the bill is to protect Canadians from repeat offenders, denounce serious crime and insulate victims from repeated parole hearings. He also said the bill would affect mostly offenders who under current rules are denied release because the National Parole Board deems them too dangerous. He said he did not know how many released murderers kill again.
The Life Means Life Act would be the biggest change in sentencing since the abolition of capital punishment in 1976.
The current penalty for first-degree murder is an automatic life sentence, with the first chance at day parole after 22 years, and full parole after 25 years. But the new law would make a life sentence without any parole mandatory in cases of especially brutal murders, killings of police or prison guards and killings in the course of a sex assault, act of terrorism or kidnapping. Judges would have discretion to order life without parole in planned and deliberate killings that are not especially brutal.
The bill would also make some cases of second-degree murder eligible, if the killer had previously been convicted of a murder. Judges would have discretion in those cases. Currently, judges may set parole at 10 to 25 years for second-degree murder, after receiving a non-binding recommendation from a jury.
Legal observers say the jury's role in determining whether a life sentence without parole is applied is a marked departure from Canadian sentencing traditions. "This is revolutionary in Canadian criminal procedure, asking juries to answer these specific questions," Queen's University law professor Allan Manson said.
Juries were not asked for recommendations when Canada had the death penalty prior to 1976. But as of 1960-61, judges had to ask juries if they wished to recommend clemency.
Archie Kaiser, who specializes in criminal law at Dalhousie's Schulich School of Law, called the jury's proposed new role a "sad echo" of the death-penalty cases. "Maybe this sad echo is appropriate, as the bill introduces a new kind of sentence, which will be seen by many as equivalent to death." He called the jury's role "another, more retributive expansion of jury powers into the normally judicially controlled sphere of sentencing."
The jury's finding of a "brutal" murder triggers a review by the judge, no matter what the jury's recommendation is. The judge must decide if the killing was "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."
The bill provides for a review by the public safety minister after 35 years, if the prisoner requests one. The minister could ask the parole board to assess the offender's case. But the minister may conduct that review on his own, without asking for the assessment. Either way, the minister would then make a recommendation to cabinet, which is responsible for the ultimate decision.
And the bill would take away the possibility of escorted absences, except for medical reasons or court hearings, until after the 35-year point. No unescorted absences would be allowed. Currently, all lifers except those in maximum security prisons may receive absences, escorted or unescorted, for a variety of reasons, including work, as a stepping stone to a gradual release.