Life Means Life, Except When it Doesn’t

A couple of weeks ago, the federal government announced new ‘life without parole’ legislation. I was quoted in a story suggesting the proposed law would be “likely to face a Charter challenge”:

“This is not parole,” Harper said. “Unlike parole, decisions will not rest with an appointed board but with the federal cabinet, men and women fully accountable to their fellow citizens and to the families of the victims of these crimes.”

But University of Montreal law professor Paul Daly said that route would not satisfy section seven of the Charter of Rights and Freedoms, which states that people cannot be deprived of their liberty “except in accordance with the principles of fundamental justice.”

“The principles of fundamental justice include a decision by an independent and impartial tribunal. The minister is political, and arguably you need the parole board and some independent body to make a decision about parole,” said Daly.

Daly said the issue has not been definitively decided by the courts, but he expects there would be litigation based on the argument.

“It’s pretty likely,” he said. “It would be much better if they had a review mechanism in there, either a review by the federal court or by an independent tribunal, like the parole board.”

Indeed I do think that a parole decision taken by a politician alone would be vulnerable to attack under s. 7. A prisoner’s liberty interests are engaged and the “principles of fundamental justice” include a hearing before an independent and impartial tribunal.

But I was commenting on the policy proposal, not the bill. This has now been published and, in fairness, I should say that it largely assuages my concerns. At least, I think courts are likely to imply additional safeguards into the parole decision-making process that make the prospects of a successful Charter challenge more remote.

The new “Executive Release” provisions set out a new system for parole decision-making in respect of offences of a “brutal nature”.

First, a prisoner who is detained for life may make an application for release to the Minister after they have served 35 years of their sentence.

Second, the Minister may refer the application to the Parole Board, which undertakes a comprehensive review of the prisoner’s file, including the likelihood of re-offending and of re-integrating society. At two points, the prisoner is entitled to make written representations to the Board. Then the Board prepares a report of its assessment for the Minister.

Third, the Minister must then consider the purposes and objectives of sentencing and humanitarian and compassionate reasons as they relate to the prisoner, who has a right to make written representations.

Fourth, the Minister makes a report to the cabinet, which takes a final decision.

These provisions are relatively bare, and may yet be supplemented through the legislative process. If they are not, I expect courts to graft on additional safeguards, as a matter of common law (without even necessarily referring to the Charter):

Courts are likely to insist that applications be referred to the Parole Board in all but the most exceptional cases. It would be difficult for the Minister to justify a refusal to refer an application, for it cuts out the specialists on questions of re-offence and re-integration.

The Minister who refuses to follow a report from the Parole Board would need to have very good reasons for doing so. Such a refusal is liable to be attacked by judicial review which is likely to be quite searching in this context.

Courts are likely to require oral hearings in at least some circumstances.

Courts are likely to insist that reasons be given throughout the process. The prisoner will have access to the report from the Parole Board and although no mention is made of access to the Minister’s report, this is likely to be implied into the statutory framework. Moreover, given the gravity of the decision, the prisoner is probably entitled to a reasoned decision from the cabinet as well.

Readers should feel free to suggest additional grafts in the comments.

This system retains the politically accountable cabinet as the final decision-maker, but it is a process in which experts and the prisoner are much more involved. In particular, the likely limited room the Minister has to depart from the recommendations of the Parole Board greatly reduces the Charter concerns I mentioned in the interview. In reality, an independent and impartial tribunal will have a prominent place in the decision-making process.

There are other provisions of the Charter, of course, and the law may yet be successfully challenged, but I tend to think that the s. 7 argument I previously envisaged is less likely to succeed.

This content has been updated on March 16, 2015 at 14:59.