section 745.4

INTRODUCTION AND BRIEF DESCRIPTION

This section allows a judge to substitute a sentence of more than ten but not more than twenty-five years without parole for an offender convicted of second-degree murder, based on the character of the offender and the circumstances of the offense.

SECTION WORDING

745.4 Subject to section 745.5, at the time of the sentencing under section 745 of an offender who is convicted of second degree murder, 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 the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, if any, made pursuant to section 745.2, by order, substitute for ten years a number of years of imprisonment (being more than ten but not more than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances.

EXPLANATION

Section 745.4 of the Criminal Code of Canada deals with the possibility of reducing the parole ineligibility period for individuals who have been convicted of second-degree murder. Specifically, this section allows judges to review the case of a prisoner who has been convicted of second-degree murder and consider reducing their period of parole ineligibility from 10 years to between 10 and 25 years. The decision to reduce the parole ineligibility period will be based on a number of factors, including the character of the offender, the nature of the crime, and the circumstances around its commission. Judges can also take into consideration any recommendation made pursuant to section 745.2, which deals with court-appointed assessors who provide expert advice on the potential risk to society that the prisoner poses. Ultimately, the goal of section 745.4 is to provide judges with the discretion to make informed decisions about the appropriate period of parole ineligibility for convicted murderers. This allows offenders who have demonstrated significant rehabilitation and pose a low risk to society to have the possibility of parole earlier than they would have otherwise. Conversely, it also allows judges to impose stricter parole ineligibility periods for offenders who pose a greater threat to society. Overall, section 745.4 reflects Canada's commitment to balancing the principles of justice and fairness with the need to protect public safety in cases of serious criminal offences such as second-degree murder.

COMMENTARY

Section 745.4 of the Criminal Code of Canada allows for the possibility of judicial discretion in sentencing for second degree murder. Instead of the mandatory life sentence with eligibility for parole after ten years, the judge may choose to impose a longer period of imprisonment without eligibility for parole. This provision was introduced in 1997 and controversially extended in 2011 to include those who had already been sentenced to life with parole eligibility. These changes were challenged in the Supreme Court of Canada, which upheld their constitutionality but noted the need for caution and restraint in their application. There are several potential benefits and drawbacks to this provision. On the positive side, it recognizes that not all murderers are equally dangerous or remorseful, and that a one-size-fits-all approach to sentencing may not be appropriate for every case. It also allows for greater transparency and accountability in the judicial process, as the judge must provide reasons for any departure from the standard sentence. This can help to build public trust and confidence in the justice system, as well as provide victims and their families with some measure of closure. However, there are also potential pitfalls to this provision. One concern is that it may create inconsistency and unpredictability in sentencing, as different judges may come to different conclusions about what constitutes an appropriate departure from the standard sentence. This could lead to perceptions of inequity or bias in the justice system, which could undermine public trust. Additionally, there may be pressure to impose longer sentences without parole eligibility in high-profile or emotionally charged cases, even if this is not necessarily warranted by the facts of the case or the rehabilitation prospects of the offender. Finally, some critics argue that this provision may be unnecessary, as judges already have a range of sentencing options available to them, including conditional sentences, suspended sentences, and community service orders. In practice, the use of section 745.4 has been relatively limited. According to the most recent statistics available from Statistics Canada, between 1998 and 2016, there were 20 cases in which a judge used this provision to impose a sentence of more than 10 years without parole eligibility. This represents a tiny fraction of the thousands of murder convictions during that time period. This suggests that judges are exercising caution and restraint in using this provision, and that it is not being used as a routine alternative to the standard sentence. Overall, section 745.4 of the Criminal Code of Canada represents a delicate balancing act between the need for flexibility and discretion in sentencing and the desire for consistency and transparency in the justice system. While it has the potential to be a useful tool in certain cases, it should be used sparingly and with the utmost care to ensure that justice is being served and public confidence is being maintained.

STRATEGY

Section 745.4 of the Criminal Code of Canada offers the possibility of parole in second degree murder cases. This section allows convicted individuals to have their parole eligibility substituted for a number of years of imprisonment, based on the character of the offender, the nature of the offense, and the circumstances surrounding the incident. When dealing with this section of the law, strategic considerations should be taken into account. Here are some potential strategies that could be employed: 1. Aligning with the Victim: One of the strategic considerations when dealing with this section of the Criminal Code is to align with the victim and their family members. Often, the families of victims may be seeking harsher penalties for the convicted offender. Therefore, it is important to gauge the reaction of the victim's family members to this particular section of the law. This understanding can aid in framing legal arguments or presenting a specific point of view in the courtroom. 2. Collecting Evidence: When dealing with this section of the Criminal Code, a critical strategy is to collect and present evidence that supports the offender's character, specific circumstances that led to the offense, and mitigating factors. This could reduce the number of years of imprisonment without parole. Evidence can be collected through testimonies from family, friends, mental health professionals, and experts on the particular circumstances surrounding the case. 3. Working with PHD Experts: In many cases, the introduction of a PHD expert could prove beneficial when dealing with this section of the Criminal Code. The expert could provide a report on the offender's character, psychological profile, or medical history that could mitigate their offense. Psychological testimony can often be compelling and could, therefore, be an essential strategy when dealing with this section of the Criminal Code. 4. Gathering Supportive Documentation: Gathering documentation that supports the offender and portrays them in a positive light can also improve the chances of reducing their imprisonment without parole. This could involve collecting work history, school grades or transcripts, awards and recognition letters, and any other documentation that portrays the offender as a productive and law-abiding individual in society. 5. Building a Strong Argument: As in any court proceeding, building a strong and persuasive argument is critical when presenting a case for an order that would reduce imprisonment without parole. Arguments should be organized straightforwardly with a clear explanation of why the offender deserves a reduction in years of imprisonment and parole eligibility. In conclusion, when dealing with section 745.4 of the Criminal Code of Canada, several strategic considerations should be taken into account. The aim of these strategies is to provide the convicted offender with an opportunity to have their sentence reduced without parole. Prosecutors, defense attorneys, and judges need to work together to make sure that justice is served in a manner that protects all parties involved.