Textbook Notes (363,507)
Canada (158,391)
Sociology (1,471)
SOC219H5 (35)
Chapter 3

Chapter 3 Reading Notes.pdf

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University of Toronto Mississauga
Nicole Myers

Chapter 3- a trip from thoughtful to thoughtless: Murder Sentencing in Canada Introduction - Canada’s first criminal code imposed the death penalty in all murder cases - hanging was the essential form of capital punishment - public and political questioning of capital punishment began in 1950s - in 1961 the canadian parliament introduced a new legislation that divided murderers into capital and non- capital categories - it was not until 1976 that the death penalty was abolished - to take its place- the parliament established a scheme of first- and second- degree murder with mandatory life sentences for both - the distinction was in the parole ineligibility period - first degree murder- it was 25 years - second degree murder- it was a period between 10- 25 years set by trial judge after receiving a recommendation from the jury - the interesting thing about the new scheme was that after 15 years, the process was allowed to reconsidering the ineligibility (this was called the 15 year review) The canadian sentencing system - for over a century, the canadian sentencing system was based (except in the case of murder) on individualization - in the later half of the 20th century, there were mandatory minimum penalties that were introduced most particularly with respect to repeat convictions for impaired driving - in 1995 the government introduced legislation that provided 4 year mandatory minimum sentences for 10 offenses if committed with a firearm - this legislative effort later extended to drug offenses, organized crime offenses and even car theft for repeat offenders - the only major change that occurred to the canadian sentencing scheme occurred in 1996 - parliament inserted into the criminal code: - a statement of purpose - a list of potential sentencing objectives - and a set of principles - the supreme court of canada has also become active on the sentencing front - it has rejected most of the constitutionally based cruel and unusual challenges to mandatory minimum penalties - it recognized the 1996 principles as a new initiative to address over incarceration in canadian prisons and penitentiaries Murder sentencing in canada the Abolition of capital punishment - Canadians began questions the capital punishment in 1950s - in 1961 legislation was passed dividing murder into: capital and non- capital categories - Capital murder- was restricted to planned and deliberate killings and the killing of a member of a prescribed set, which included; police officers and jail guards - the abolition debate was conducted vigorously in parliament, in the media and in public discourse - in parliament the issue was raised almost daily for many months - the retentionists argued for the continued need for a capital penalty (death sentence) - capital punishment was formally abolished on july 26, 1976 with respect to any offenses committed before and after that date - a decade later a motion to serve the debate was defeated in parliament The new murder sentencing regime - the substantive focus that consumed the attention of members of parliament was the legitimacy of the death penalty - the legislation contained a proposal for the review of parole ineligibility - the review plan applied to all first degree murder life sentences and any second degree life sentences with a period of ineligibility greater than 15 years - the plan allowed the offender to apply to a court to have the ineligibility period reconsidered depending on the circumstances of the offense and the offender’s situation after 15 years of confinement/ imprisonment - canadian jurries have no decision making role in sentencing Experience with the 15 year review - the first two 15 year reviews took place in 1987 - both cases, one in Quebec and one in Ontario, involved the killing of a police officer followed by capital prosecution that led to the death penalty - almost 83% of review applications are successful, but given the small proportion of eligible prisoners who apply (17.45%) this means that only 14.43% of eligible prisoners received a reduction in parole eligibility from the 15 year review process - in 1997, the minister of justice improved the process by limiting access to reviews and diminishing the prospect of success - there were three major changes 1. anyone who was convicted after January 9, 1997 (the date of proclamation in force) of a multiple murder or a murder having already been convicted of a murder would be un fit entirely from applying 2. there would no longer be an absolute right to a hearing. The chief justice of the provice must consider the application and other written material to determine whether, on a balance of probabilities the application has a reasonable prospect of success. Only if the chief justice is satisfied that there is a reasonable anticipation of success will a jury empanelled to hear the application 3. after 1997, the prisoner needed to convince all 12 jurors that he or she was entitled to a reduction in the period of parole ineligibility. - a jury has the power to reduce parole ineligibility to a number of years less than 25 - HOWEVER a successful application does not mean immediate eligibility - once the reduced eligibility date is reached this only opens the door for a parole application - a number of important observations can be made about the 15- year review process 1. eligible prisoners have been very self- selective in deciding whether to apply 2. successful cases have occurred in every province. Since the decision maker is a 12- person jury made of ordinary canadians, the degree of successful applications across the entire country, including highly conservative provinces, suggests a high degree of social acceptability 3. of the 130 prisoners who have obtained parole after the section 745.6 ruling, 9 have been returned to custody for breaching a parole conditions and one was charged with a new offense. robbery - all murder sentences are life sentences - many years ago, canadian courts reached to logical conclusion that no sentence could be consecutive to a life sentence - this makes sense because life imprisonment warrant only expires upon death-- it would be stupid to contemplate a warrant for an additional sentence taking affect after only upon the death of the prisoner - this means that all additional sentences, even a new sentence must be served concurrently with the original life sentence - it is important to note that aggregation of parole ineligibility periods applied only to fixed sentences and not to a new life sentence Recent efforts to reshape the murder sentencing regime - until march 25, 2011, the conservative party made up the Canadian government and led a minority parliament - the government of Stephen Harper managed to move its “law and order” composition into a legislative agenda - this agenda has been dominated by a number of new mandatory minimum sentences and other measures that will have the effect of limiting judicial sentencing judgement - two bills that intended to dramatically affect major aspecs of murder sentencing were: 1. Bill S-6 which abolished the 15- year review for any cases arising from a murder committed after 2. Bill S-48 was to permit a judge to make 25- year parole ineligibility periods
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