The crime of murder is referred to as “homicide” under the law and it is defined by provisions in the Criminal Code (CC) of Canada. A person commits homicide when, directly or indirectly, by any means, he/ she causes the death of a human being (Criminal Code of Canada, 1998). The provisions for first and second degree murder are found in CC Section 231, those for manslaughter in CC Sections 234 and those for infanticide in CC Sections 233. The Code also defines the physical and mental elements required for the various homicide offenses. All the offenses share a common physical aspect: there must be a death, it must be caused by the offender’s conduct and there must be culpability, such as an unlawful act or criminal negligence. However, homicide offenses do differ regarding the mental elements and Canadian law has continued to distinguish among crimes of homicide according to the state of mind of the offender. First and second degree murder are defined as causing death with intent or with some other specified state of mind, such as recklessness or malice. As well, it includes the murder of a police officer, prison officer, prison employee or any other person authorized to work in a prison while on duty. Manslaughter is defined as causing death in all other cases (Correctional Service of Canada, 1997).

The provisions of Bill C-84, which abolished the death penalty for murder in Canada in 1976, represented a compromise regarding parole eligibility. Some Members of Parliament (MPs), although generally in favour of abolition of the death penalty, wanted the minimum parole eligibility for first degree murder fixed at 35 years. Others wanted the trial judge to determine the eligibility date, with the minimum term set at 10 years. Many MPs were somewhat fearful of the consequences of setting a very long term of minimum incarceration. The compromise on minimum prison terms before parole eligibility came in the form of the judicial review provision, also known as “faint hope,” in the Criminal Code (Section 745), which allowed people with life sentences to apply for a reduction in parole eligibility after serving 15 years of their sentence.

JUDICIAL REVIEW PROCESS

On January 9, 1997, amendments to Section 745.6 came into effect. The amendments toughened the requirements for parole eligibility reduction, ensuring that only exceptional cases benefit from a judicial review (Department of Justice Canada, 1997a). Offenders who were sentenced when the old judicial review provisions were in place are still subject to the old provisions. The offender who commits more than one murder is now automatically prohibited from applying for a judicial review to reduce his/her parole ineligibility period. Judicial review involves a considerable number of steps and conditions. If the application is filed after January 9, 1997, it must be screened by a judge, who decides whether the application has a reasonable prospect of success (Department of Justice Canada, 1997b). The offender must convince the judge that the application has a reasonable prospect of success before he or she is permitted to go before a community jury (Department of Justice Canada, 1997d). The 12 member jury hears the evidence from the applicant and from the crown, as well as considering any victim impact statements and reports concerning the applicant. All members of the jury must agree to reduce the parole ineligibility period before the reduction is granted to an applicant.


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