INTRODUCTION AND BRIEF DESCRIPTION

This section requires the judge to ask the jury for a recommendation on the period of imprisonment for life before an accused under the age of sixteen is eligible for release on parole for first or second degree murder.

SECTION WORDING

745.3 Where a jury finds an accused guilty of first degree murder or second degree murder and the accused was under the age of sixteen at the time of the commission of the offence, the judge presiding at the trial shall, before discharging the jury, put to them the following question: You have found the accused guilty of first degree murder (or second degree murder) and the law requires that I now pronounce a sentence of imprisonment for life against the accused. Do you wish to make any recommendation with respect to the period of imprisonment that the accused must serve before the accused is eligible for release on parole? You are not required to make any recommendation but if you do, your recommendation will be considered by me when I am determining the period of imprisonment that is between five years and seven years that the law would require the accused to serve before the accused is eligible to be considered for release on parole.

EXPLANATION

Section 745.3 of the Criminal Code of Canada is a provision that pertains to situations in which a person under the age of sixteen has been found guilty of first-degree or second-degree murder. The provision mandates that once the jury renders the guilty verdict, the presiding judge must ask the jury if they wish to make any recommendation regarding the period of imprisonment that the accused person must serve before becoming eligible for parole. The jury is not compelled to make a recommendation, but if they do, the judge will consider it when deciding the length of the prison sentence that the law requires the accused to serve before being eligible for parole. This provision was introduced as a part of the Youth Criminal Justice Act (YCJA) in 2003, which sought to establish a new system of criminal justice for young offenders in Canada. The YCJA aimed to incentivize rehabilitation and reintegration for juvenile offenders as opposed to punishment and retribution. The inclusion of section 745.3 in the Criminal Code reflects this rehabilitative emphasis as the provision allows for greater input from the jury, who may consider factors such as the offender's age, mental state, and prospects for rehabilitation when making a recommendation. In practice, the provision requires the presiding judge to provide the jury with clear instructions before they make a recommendation, and jurors are reminded that their role is to provide guidance to the judge rather than to dictate a sentence. Ultimately, however, the judge retains the sole discretion over the length of the prison sentence and may decide to accept or reject the jury's recommendation. The provision remains a critical aspect of the Canadian criminal justice system as it ensures that young offenders who commit serious offenses are afforded consideration and opportunities for rehabilitation.

COMMENTARY

Section 745.3 of the Criminal Code of Canada is an important piece of legislation that addresses the issue of sentencing for minors who have committed murder. It allows the jury to make a recommendation on the length of imprisonment for the accused before they are eligible for parole. This section of the Criminal Code recognizes the unique circumstances that surround young offenders who commit murder. It acknowledges that their ability to understand the gravity of their actions and the long-term consequences may be limited by their age and maturity level. This is in line with research on brain development, which suggests that the prefrontal cortex, responsible for decision-making and impulse control, is not fully developed until well into adulthood. The provision also recognizes the importance of considering the possibility of rehabilitation for young offenders. Rather than imposing a mandatory minimum sentence, the section allows the jury to consider the circumstances of the case and the individual accused before making a recommendation. This approach aligns with the principles of restorative justice, which views criminal justice as more than just punishment, but also as an opportunity to repair harm and address the underlying causes of offending behaviour. However, some may argue that this provision allows the jury to impose a sentence that is too lenient. The minimum sentence of five years before eligibility for parole means that a young offender who commits murder could theoretically be released from prison while still in their early twenties. This raises concerns that the punishment may not be sufficient to deter other young people from committing murder and may not adequately address the harm caused to the victim and their family. Additionally, while the section allows for consideration of the circumstances of the individual case, it still imposes a mandatory life sentence for first and second-degree murder. This means that even with a recommendation for a shorter sentence, the offender will still spend a significant portion of their life in prison. Overall, section 745.3 of the Criminal Code strikes a balance between recognizing the unique circumstances of young offenders who commit murder and the need to hold them accountable for their actions. While there may be some debate around the appropriate length of imprisonment before eligibility for parole, the provision allows for individual consideration of the facts of the case and the offender's potential for rehabilitation.

STRATEGY

One of the primary strategic considerations when dealing with section 745.3 of the Criminal Code of Canada is the potential impact of a jury recommendation on the sentencing decision. While juries are not required to make a recommendation, their input can be influential in determining the length of time an accused must serve before being eligible for parole. Therefore, it is important for defense counsel to carefully consider whether to request a jury recommendation, and if so, how to frame the request and present evidence in support of a shorter period of parole ineligibility. In order to effectively navigate this process, defense counsel may employ a number of strategies. One key strategy is to present evidence that speaks to the youthfulness of the accused, including factors related to brain development, impulse control, and the potential for rehabilitation. This evidence can be presented through expert testimony, as well as through witness statements and other relevant materials that support the argument for a shorter period of parole ineligibility. Another potential strategy is to highlight any mitigating factors that may have contributed to the commission of the offense, such as a history of abuse, mental health issues, or other challenges that may have impacted the accused's behavior. By presenting these factors in a compelling way, defense counsel may be able to persuade the jury to recommend a shorter period of parole ineligibility, or to at least consider a more lenient sentence overall. Additionally, defense counsel may seek to build rapport with the jury by emphasizing the accused's positive qualities and contributions, such as involvement in community service or academic achievements. By framing the accused as a person with potential for positive change, defense counsel may be able to garner sympathy and support from the jury, which could impact their recommendations and ultimately, the length of the accused's sentence. In conclusion, section 745.3 of the Criminal Code of Canada presents a number of strategic considerations for defense counsel. By carefully weighing the potential impact of a jury recommendation, presenting evidence and arguments that support a more lenient sentence, and building rapport with the jury, defense counsel may be able to achieve a more favorable outcome for their client. Ultimately, the success of these strategies will depend on the specific circumstances of the case and the evidence presented, as well as the skill and experience of the defense counsel.