The Meaning of Life: A Study of the Use of Parole Ineligibility for Murder Sentencing.

• Author: Grant, Isabel

A NUMBER OF legal developments in recent years suggest that murder sentencing may be becoming increasingly punitive. This study examines two aspects of setting parole ineligibility for those convicted of murder. First, using cases from three two-year time periods spanning the past three decades, the authors explore whether judicial calculations of parole ineligibility for second degree murder have changed over time. Second, the authors examine changes enacted in 2011 to allow parole ineligibility to be imposed consecutively for those who are convicted of more than one murder.

The study finds a national trend towards reduced reliance on the minimum ten-year period of parole ineligibility, a slight increase in parole ineligibility periods over time, and evidence that increasingly harsh parole ineligibility in Ontario may be driving the national trends. With respect to consecutive periods of parole ineligibility, the cases suggest that courts are imposing consecutive parole ineligibility in just less than 45 percent of the eligible cases, with that result being more likely where the victims include strangers. Courts in Ontario and Alberta have thus far shown the highest rates of consecutive parole ineligibility, while British Columbia has largely resisted this trend. The authors conclude that some kind of review mechanism, like a faint hope clause, is necessary to temper the harshness of these increasingly long periods of parole ineligibility and that further study is warranted to explore the preliminary trends identified in this study.

DE NOMBREUX AVANCEMENTS juridiques au cours des dernieres annees suggerent que les peines pour meurtre devien-draient de plus en plus punitives. Cette etude examine deux aspects de la determination de l'admissibilite a la liberation conditionnelle des personnes reconnues coupables de meurtre. Premierement, en se penchant sur des causes avancees au cours de trois periodes de deux ans, couvrant les trois dernieres decennies, les auteures cherchent a savoir si les calculs judiciaires concernant l'admissibilite a la liberation conditionnelle pour meurtre au second degre, ont change au fil des annees. Deuxiemement, les auteures font l'analyse de modifications adoptees en 2011 pour permettre l'imposition de periodes consecutives d'inadmissibilite a la liberation conditionnelle pour les personnes ayant commis plus d'un meurtre.

L'etude revele que la tendance nationale est de se fier de moins en moins a la mise en application de la periode minimale d'inadmissibilite a la liberation conditionnelle de 10 ans, une legere augmentation de cette periode au fil du temps, et presente des preuves que la determination de l'admissibilite a la liberation conditionnelle etant de plus en plus severe en Ontario pourrait etre a l'origine des tendances nationales, a la hausse. En ce qui concerne les periodes consecutives d'inadmissibilite a la liberation conditionnelle, les causes suggerent que les tribunaux imposent des periodes consecutives d'inadmissibilite a la liberation conditionnelle dans un peu moins de 45 % des causes admissibles, ce resultat etant plus probable lorsque la personne coupable ne connaissait pas les victimes. Les tribunaux de l'Ontario et de l'Alberta ont jusqu'a present affiche les taux les plus eleves de periodes consecutives d'inadmissibilite a la liberation conditionnelle, tandis que la Colombie-Britannique a en grande partie resiste a cette tendance. Les auteures concluent qu'un processus de revision, comme la clause de la derniere chance, est necessaire afin de temperer la severite des periodes d'inadmissibilite a la liberation conditionnelle de plus en plus longues et qu'une etude plus approfondie est justifiee pour explorer les tendances preliminaires identifiees dans cette etude.

CONTENTS The Meaning of Life: A Study of the Use of Parole Ineligibility for Murder Sentencing Isabel Grant, Crystal Choi, and Debra Parkes I. Introduction 137 II. Canada's Murder Sentencing Regime 139 III. Our Study 146 A. Methodology 146 B. Parole Ineligibility Periods for Second Degree Murder Sentencing 149 1. Background 149 2. Canadian Parole Ineligibility Decisions Across Time 150 3. Ontario Parole Ineligibility Decisions Across Time 159 4. Understanding the Numbers 163 C. Sentencing Multiple Murders Since the Introduction of Consecutive Parole Ineligibility 165 D. Consecutive or Concurrent Parole Ineligibility? The Early Cases 166 E. Reconsidering Consecutive Parole Ineligibility 171 IV. Conclusion and Directions for Further Research 174 I. INTRODUCTION

The implementation of life sentences as punishment for murder and other serious crimes is on the rise internationally, and Canada is not immune to this trend. (1) As of 2018, there were 5,619 people serving life or indeterminate sentences in Canada, representing approximately 24 percent of all individuals under federal correctional supervision in Canada. (2) The vast majority of these people--4,759 individuals--were serving a mandatory life sentence for murder. (3)

Life sentences are remarkable because they result in a form of custodial and, for some, community supervision until the end of a person's natural life, leaving little room for redemption, rehabilitation, or hope. For these reasons, some legal systems do not permit life sentences. Norwegian law, for example, has no life sentences, (4) and in Portugal life sentences are unconstitutional. (5) Common law jurisdictions such as the United Kingdom, the United States, and Canada are generally harsher than their civil law European counterparts, where determinate sentences are utilized even for serious offences such as murder. (6) The United States leads the world in meting out life sentences, in many cases without any possibility for parole. (7) Research there has shown that the availability of extreme prison sentences (life without parole or "virtual life" sentences of 50 years or more) has had an inflationary effect on sentencing generally due to the normalization of extreme penalties and a magnitude scaling effect, whereby sentences that might otherwise be seen as unreasonably harsh become accepted. (8)

Canada has no formal sentence of life without parole; the possibility of conditional release has always been an essential feature of the post-1976 sentencing regime for murder. Therefore, examining sentencing and parole decisions becomes key to understanding the impact of mandatory life sentences. What parameters do judges put on a life sentence, and at what point in their sentence do lifers tend to get released? This paper zeroes in on the first set of decisions--namely judicial determination of the number of years a person sentenced to life for murder must serve in prison before being eligible to apply for parole--and leaves examination of parole board decision-making for a later paper. While life sentences and relatively long periods of ineligibility for parole have been normalized in Canadian law, there are also countervailing principles at stake, such as human dignity, the salience of hope, and the possibility of rehabilitation, as well as the human and fiscal costs of an aging prison population, which suggest we should subject these sentences to close scrutiny. (9)

Since the abolition of the death penalty in 1976, Canada has relied on mandatory life sentences with long periods of parole ineligibility to punish persons convicted of murder. The prescribed periods of parole ineligibility have remained consistent since 1976, but a number of related changes have been made to the legislative regime, which have the potential to make the sentences for murder even harsher. In this study, we examine what is actually happening in our courts regarding sentencing for murder to determine whether the sentences imposed by judges have increased over time. In a subsequent paper, we will be examining how long those convicted of murder are incarcerated before being released on parole. (10)

2. CANADA'S MURDER SENTENCING REGIME

   The legal regime for murder sentencing has been detailed elsewhere, and we will only briefly review it here. (11) All murder is subject to a mandatory sentence of life imprisonment, and the length of the parole ineligibility period attached to that sentence depends on whether the murder is classified as first or second degree. (12) It is important to stress that these periods of parole ineligibility set the date at which an individual is eligible to apply for parole, not the date at which they will be paroled. For first degree murder, (13) there is a mandatory period of 25 years before parole eligibility. (14) For second degree murder, (15) that period is set by the sentencing judge after a recommendation from the jury, where there is one, (16) at somewhere between ten and 25 years. (17) If an individual has already been convicted of murder, they will be subjected to life imprisonment with 25 years of parole ineligibility regardless of whether their new conviction is for first or second degree murder. (18) Canada has special rules for persons who are sentenced as youth (19) and for those sentenced as adults who were under the age of 18 at the time of the offence. (20)

   In 1976, when this regime was introduced, it was widely considered a harsh but necessary compromise to win support for abolishing the death penalty. (21) Part of the 1976 compromise was the provision, often referred to as "the faint hope clause," (22) that gave an individual sentenced to more than 15 years of parole ineligibility the right to apply to a court after serving 15 years to have that period of parole ineligibility reduced. Under the original provision, everyone convicted of first degree murder and all those convicted of second degree murder with parole ineligibility greater than 15 years had access to the faint hope clause, which involved a hearing before a jury. (23) Successful use of the faint hope clause did not inevitably lead to parole, but rather provided a mechanism for shortening the...