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Timothy Danson is a Toronto trial and appellate lawyer and has represented many victims of crime in Canada, including the French and Mahaffy families.

The recent parole hearing for convicted murderer Paul Bernardo has once again generated an important public discussion about the legal entitlement to routine parole hearings. For most offenders sentenced to life, they occur, on average, every two years following their first hearing after serving 25 years. The process causes extreme anxiety, distress and hardship for the victims’ families. Parole hearings for such offenders should be seven years apart.

On Sept. 1, 1995, Mr. Bernardo was convicted of the first-degree murder of 14-year-old, Leslie Mahaffy and 15-year-old, Kristen French. He was first sentenced to life imprisonment without being eligible for parole for 25 years for the murder of Ms. Mahaffy. He then was convicted of the murder of Ms. French and sentenced to life imprisonment, but his second 25-year parole ineligibility period ran concurrently with the first. The result was that Mr. Bernardo’s statutory period of parole ineligibility was not extended for a single second for the sadistic and brutal murder of Ms. French. For the purposes of parole eligibility, the law gave Mr. Bernardo a “free pass” for his second murder.

On Nov. 3, 1995, Mr. Bernardo was additionally declared a dangerous offender. Dangerous offenders are given indeterminate sentences and subject to a different parole regime. Upon issuing the designation, the trial judge, Justice Patrick LeSage, turned to him and said, “Mr. Bernardo … You have no right ever to be released … The behavioural restraint that you require is jail. You require it, in my view, for the rest of your natural life. You are a sexually sadistic psychopath.”

Mr. Bernardo was entitled to apply for full parole 25 years after his Feb. 17, 1993, arrest and incarceration. In denying him parole in 2018 and 2021, the board relied on psychiatric evidence confirming a diagnosis of sexual sadism, psychopathy and narcissistic personality disorder.

Under the Corrections and Conditional Release Act (CCRA), offenders are entitled to reapply for parole one year after their previous hearing. The Parole Board is required to hold that parole hearing within six months of that application. By law, that means every offender convicted of first-degree murder is entitled to a parole hearing every one-and-a-half years for the rest of his or her life.

Should an offender not apply for parole (which is rare), the Parole Board must hold a hearing every two years, unless convicted of an offence of serious violence, in which case the hearing must be held every five years. However, if the offender is declared a dangerous offender like Mr. Bernardo, he or she, paradoxically, obtains a benefit: the Criminal Code requires parole hearings for these offenders to be held every two years rather than five years as Charter considerations require greater frequency when the sentence is indeterminate. Such an outcome is perverse when dealing with an offender also serving a life sentence for murder. This needs to be changed.

As Donna French, Kristen’s mother, told the Parole Board on June 22, 2021, no sooner had the ink dried on her first victim impact statement that she was called upon to go through the traumatic and gut-wrenching process of preparing another. The CCRA must be amended to state that following the first post-25-year parole hearing for offenders convicted of first-degree murder, all subsequent hearings should be seven years apart. This strikes a sensible balance between the gravity of the offence and the public interest. To ensure Charter compliance, consideration could be given to providing a review process where the offender could apply to the Parole Board for an earlier hearing if there is a substantial likelihood of success to justify a full hearing.

Subsequent to Mr. Bernardo’s conviction, the Criminal Code was amended (s. 745.51) to allow trial judges to impose consecutive periods of parole ineligibility. Had this been available to Justice LeSage, it is very likely that he would have made Mr. Bernardo’s periods of parole ineligibility run consecutively. If that was the case, Mr. Bernardo would not have been eligible for parole until 2043.

Under the current law, Mr. Bernardo will likely have had 12 parole hearings before 2043. This is excessive and profoundly unfair to the victims. Unfortunately, s. 745.51 of the Criminal Code was declared unconstitutional by the Quebec Court of Appeal in 2020 as being cruel and unusual punishment. That case is now before the Supreme Court of Canada. Hopefully, the court will not give a free pass to offenders guilty of committing multiple murders, as such an outcome would be cruel and unusual punishment to the offender’s victims and offensive to the public interest.

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