INTRODUCTION AND BRIEF DESCRIPTION
This section requires an annual review of the condition, history, and circumstances of individuals in custody under an indeterminate sentence before October 15, 1977, to determine if they should be granted parole.
SECTION WORDING
761(2) Where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period that was imposed before October 15, 1977, the Parole Board of Canada shall, at least once in every year, review the condition, history and circumstances of that person for the purpose of determining whether he should be granted parole under Part II of the Corrections and Conditional Release Act and, if so, on what conditions.
EXPLANATION
Section 761(2) of the Criminal Code of Canada outlines the requirement for the Parole Board of Canada to conduct periodic reviews of prisoners who are serving an indeterminate sentence of detention in a penitentiary and who were sentenced before October 15, 1977. The purpose of these reviews is to evaluate the prisoner's condition, history, and circumstances to determine whether they are eligible for parole under Part II of the Corrections and Conditional Release Act. Prior to the enactment of this section, prisoners serving indeterminate sentences of detention in penitentiaries did not have a set review process for their potential release on parole. This left many prisoners in indefinite confinement, with no clear path towards release or rehabilitation. Section 761(2) rectifies this by establishing a mandatory annual review process, ensuring that eligible prisoners have their cases evaluated regularly. The Parole Board of Canada plays a critical role in this process, as they have the power to grant or deny parole based on their assessment of the prisoner's suitability for release. Even if parole is granted, the board can impose conditions on the release to manage any potential risks posed by the offender. Overall, Section 761(2) makes an important contribution to ensuring that the Canadian justice system supports rehabilitation and successful reintegration into society for those in custody.
COMMENTARY
Section 761(2) of the Criminal Code of Canada highlights the importance of regular reviews of the conditions, history, and circumstances of individuals who are serving indeterminate sentences of detention in penitentiaries. This section was introduced to ensure that these individuals are given the opportunity to have their cases reviewed regularly and to determine whether they may be eligible for parole under the Corrections and Conditional Release Act. Prior to the introduction of this section, individuals who were serving indeterminate sentences for crimes committed before October 15, 1977, were not provided with any opportunities for parole. However, this section now requires the Parole Board of Canada to conduct regular reviews of the cases of such individuals at least once every year. This is a significant step towards ensuring that fair and just parole decisions are made and that these individuals are given the chance to reintegrate into society. The main purpose of these reviews is to determine whether a person should be granted parole under the Corrections and Conditional Release Act and, if so, on what conditions. The Parole Board of Canada takes into account a person's previous criminal history, their behavior while incarcerated, and their risk of reoffending. This ensures that individuals who are granted parole are not a danger to society and are ready to take responsibility for their actions. Furthermore, these reviews provide a significant opportunity for individuals who may have made mistakes in their past to demonstrate that they have taken steps towards rehabilitation and are ready to be reintegrated into society. The regular reviews also address issues of human rights since the indeterminate sentences for which these individuals are serving are often deemed to be violations of Section 7 of the Charter of Rights and Freedoms, which pertains to the right to life, liberty, and security of the person. Ultimately, Section 761(2) of the Criminal Code of Canada ensures that individuals who are serving indeterminate sentences for crimes committed before October 15, 1977, are provided with fair and just opportunities for parole. The regular reviews by the Parole Board of Canada help to ensure that these individuals are able to demonstrate that they have taken responsibility for their criminal actions and are not a danger to society. These reviews also address issues of human rights and ensure that individuals who are serving indeterminate sentences are not overlooked or forgotten by the justice system. In conclusion, Section 761(2) of the Criminal Code of Canada is an important piece of legislation that highlights the need for regular reviews of the conditions, history, and circumstances of individuals who are serving indeterminate sentences in penitentiaries. This section ensures that these individuals are given the opportunity to have their cases reviewed regularly and to determine whether they may be eligible for parole. The regular reviews also help individuals to demonstrate that they have taken responsibility for their actions and are ready for reintegration into society. It is an essential step towards creating a just and humane justice system.
STRATEGY
Section 761(2) of the Criminal Code of Canada is a crucial legal provision that governs the review of parole eligibility for prisoners who are serving indeterminate sentences in penitentiaries. This section stipulates that the Parole Board of Canada must assess the condition, history, and circumstances of such prisoners at least once every year to determine whether they are fit to be granted parole under Part II of the Corrections and Conditional Release Act. For legal practitioners who represent prisoners or their families, dealing with Section 761(2) requires a strategic approach that considers several factors that may influence the parole board's decision-making. Some strategies that could be employed in this context include: 1. Building a strong case: The parole board requires compelling evidence to justify the release of a prisoner on parole. Therefore, a legal practitioner representing a prisoner should gather and present persuasive information that highlights the prisoner's positive attributes, such as their good behavior, participation in rehabilitation programs, and plans for reintegration into society. This may involve collaborating with the prisoner to develop a comprehensive plan for their release that addresses their housing, employment, financial, and other needs. 2. Addressing potential risks: While building a strong case for parole, it is also essential to address any potential risks that may pose a threat to public safety. For example, if the prisoner has a history of violent behavior or substance abuse, their legal representative should provide evidence that demonstrates their willingness to address these issues through treatment and counseling. Additionally, the legal practitioner should ensure that the prisoner has a suitable support network, such as family members, friends, or community agencies, who can help them manage these risks. 3. Understanding the parole board's priorities: The parole board has a mandate to protect society while supporting the successful reintegration of prisoners into the community. Therefore, legal practitioners should understand what factors the board considers when making decisions and tailor their arguments to appeal to those priorities. For instance, emphasizing the prisoner's rehabilitative efforts and their potential to contribute positively to society may resonate with the board and increase the likelihood of parole being granted. 4. Addressing systemic barriers: Some prisoners may face systemic barriers to parole, such as discrimination based on their race, ethnicity, or socioeconomic status. Lawyers representing such inmates should be sensitive to these challenges and work to address them through advocacy and policy change. For instance, they may lobby for greater representation of marginalized groups on the parole board or advocate for changes to the sentencing rules that disproportionately affect these groups. 5. Advocating for procedural fairness: Finally, legal practitioners should ensure that the parole board adheres to the principles of procedural fairness when making decisions. This includes ensuring that prisoners have access to legal representation, that they are given sufficient notice of parole hearings, and that they have the opportunity to respond to any adverse evidence presented against them. Advocating for procedural fairness can help ensure that prisoners are not unfairly denied parole and that the system operates in a transparent and accountable manner. In conclusion, dealing with Section 761(2) of the Criminal Code of Canada requires a strategic approach that considers multiple factors that may influence the parole board's decision-making. Legal practitioners representing prisoners or their families should build a strong case, address potential risks, understand the parole board's priorities, address systemic barriers, and advocate for procedural fairness to increase the likelihood of their clients being granted parole. By employing these strategies, lawyers can help ensure that prisoners are given a fair and just opportunity to reintegrate into society.