Experienced Criminal Lawyers

Life Sentence in Canada: How it Works in Alberta

What offenses are subject to a life sentence?

First-degree and second-degree murder are two examples that come with a mandatory minimum of life imprisonment. A judge has no discretion when it comes to imposing this sentence. Furthermore, there are mandatory minimum parole ineligibility periods. For first-degree murder, the minimum parole ineligibility term is 25 years. For second-degree murder, the parole ineligibility period is a minimum of ten years. However, in sentencing, this is where most of the argument lies as prosecutors can and will argue for longer periods of parole ineligibility. Finally, there are several other offenses that are eligible for life imprisonment as a sentence.

What if there is a conviction for multiple murders, is a consecutive sentence possible?

The answer is yes. Section 745.51 (1) of the Criminal Code states:

745.51(1) At the time of the sentencing under section 745 of an offender who is convicted of murder and who has already been convicted of one or more other murders, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to [a] the character of the offender, [b] the nature of the offence and the circumstances surrounding its commission, and [c] the recommendation [of the jury], if any, made pursuant to section 745.21, by order, decide that the periods without eligibility for parole for each murder conviction are to be served consecutively.

The issue of whether consecutive life sentences were available for multiple murder convictions which occurred during the same transaction was recently litigated in Alberta in R v Klaus, 2021 ABCA 48. In this case, it was argued that notice must be given when a consecutive life sentence is going to be sought pursuant to section 727 of the Code. The Court observed in paragraph 32:

Section 727 was introduced into the Criminal Code to obviate the practice, then in existence, of including in the information particulars of the prior conviction in order to alert the accused that an increased penalty might be inflicted. As a result of such inclusion, a trier of fact became aware of the accused’s record in advance of conviction, which offended the long-established principle that the Crown must not introduce the record of the accused as part of its case. The purpose of the section is to provide the accused a warning of the prosecution’s intention to seek a higher penalty without that fact being disclosed during the Crown’s case.

The Court concluded that there was no policy rationale for a legal requirement that would mean that advance notice must be given under this section before plea that the Crown intends to seek a sentence at the higher end of any applicable range or that the Crown intends to ask the judge to make the sentence consecutive as per the discretion of the judge. Furthermore, our Court of Appeal concluded in the Klaus decision that pursuant to section 745.51(1), the fit and proper sentence was a consecutive life sentence with a consecutive 25 year minimum parole ineligibility period.

What to do if a life sentence has been imposed

First, speak with a criminal defence lawyer about launching any appeal possible. If the appeal process has been exhausted, then it may be wise to consider an application for ministerial review. However, these are rare. Section 696.1 of the Code allows for such a review on the grounds that there has been a “miscarriage of justice”. Once this application has been initiated, the federal Minister of Justice will determine whether or not all rights have been exhausted under judicial review or appeal. After this determination is made, the Minister will then follow the regulations under section 696.1. The Minister has and may exercise the powers of a commissioner under the Inquiries Act.

These applications are unlike the adversarial court process and whether or not a judge or panel of judges erred. Instead, this application requires a material that was not considered by previous courts or new evidence. There are four steps to a Ministerial Review. First, after the procedural steps are complete, there is a preliminary assessment. Second, there is an investigation. Third, there is the preparation and filing of an investigation report. Finally, the Minister makes a decision based on the preceding steps. The Minister, after reviewing all material, may conclude that a miscarriage of justice has likely occurred and may order a new trial or a new hearing.

This type of application is known as an “extraordinary remedy” in law. These applications are documented intense and require a critical eye when initiating this action. The criminal lawyer must be experienced in this work to have any hope or expectation for a successful outcome.

What is a Faint Hope Application?

This application is typically referred to as a “Faint Hope Clause” application. The goal is to seek a reduction in the originally imposed parole ineligibility period. Section 745.6 sets out the criteria and regime for initiating a judicial review application to seek a parole ineligibility reduction. This section allows for an application to be submitted to the Chief Justice after the person has served a minimum of 15 years in prison. However, a recent amendment to this section has removed the possibility of starting this application for anyone who has committed an offence that resulted in a conviction and sentence after December 2, 2011.

If the sentenced person is eligible to seek the Faint Hope Claus, it is important to know that the purpose is to re-examine a decision in light of new factors or new information which could not have been known at the time of the initial sentencing decision. Therefore, the primary goal will be to highlight and advance material changes that have occurred in the individual’s circumstances which might justify imposing a lower parole ineligibility period.

This application documents intense as well. The materials which usually ground this application include the offender’s inmate records, any and all forensic reports created and any other reports in the offender’s past. It may also be useful to obtain updated reports.

The Chief Justice or designate must make a preliminary determination after receiving the application to determine as to whether the applicant has demonstrated on a balance of probabilities that there is a substantial likelihood that the application for review will be successful in meeting the criteria set out in section 745.63 (1)(a) to (e). If the application is dismissed at this stage, the Chief Justice may then set a time limit to which the offender will not be entitled to make another review application. If the Chief Justice decides that the application has a substantial likelihood of success, then a judge will be assigned to hear the matter with a jury.

These applications are complex and involve a large amount of material to review and to be in command of when proceeding in action. It is critical that any lawyer retained to take these steps has the experience and a critical eye and command of the details.