Criminal Code of Canada - section 745.21(1) - Recommendation by jury multiple murders

section 745.21(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section requires the judge to ask the jury for their recommendation on consecutive periods without eligibility for parole for a person convicted of murder who has previously been convicted of murder.

SECTION WORDING

745.21(1) Where a jury finds an accused guilty of murder and that accused has previously been convicted of murder, the judge presiding at the trial shall, before discharging the jury, put to them the following question: You have found the accused guilty of murder. 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 without eligibility for parole to be served for this murder consecutively to the period without eligibility for parole imposed for the previous murder? You are not required to make any recommendation, but if you do, your recommendation will be considered by me when I make my determination.

EXPLANATION

Section 745.21(1) of the Criminal Code of Canada outlines a very specific requirement for judges in cases where a person is found guilty of murder and has a previous conviction for murder. In such cases, the judge presiding over the trial must ask the jury if they wish to make a recommendation regarding the period of parole ineligibility that should be served for the current conviction, in addition to the period already being served for the previous conviction. This section of the Criminal Code was introduced in 2011 as part of a package of amendments designed to address concerns about the fairness and transparency of the parole system. The idea behind this provision is to ensure that the voices of the community are heard in cases where the accused is a repeat offender. By giving the jury the opportunity to make a recommendation, the judge is able to take into account the views of ordinary citizens and ensure that their perspective is reflected in the sentence that is ultimately imposed. It is worth noting that this provision only applies to cases where the accused has already been convicted of murder. In other words, it is a relatively narrow and specific provision that is intended to address a particular set of circumstances. Nonetheless, it is an important example of how Canadian law seeks to balance the interests of victims, the community, and offenders in a way that is fair and just for everyone involved.

COMMENTARY

Section 745.21(1) of the Criminal Code of Canada is a provision that deals with sentencing for individuals who have been convicted of murder and have previously been convicted of the same crime. This provision essentially allows for a jury to make a recommendation to the presiding judge with respect to the period without eligibility for parole that the accused must serve for the new murder charge. The recommendation is to be served consecutively to the period without eligibility for parole already imposed for the previous murder. The purpose of this provision is to allow for the consideration of the severity of the crime committed and for a recommendation to be made by community members through a jury. This ensures that the sentence reflects the seriousness of the crime and meets the public's expectations for justice. It also helps to ensure consistency in sentencing and allows for the inclusion of the broader community's values in the determination of the sentence. That being said, the provision also raises several concerns. Firstly, the recommendation made by the jury is not binding on the presiding judge. This means that the sentencing judge has the discretion to deviate from the recommendation or ignore it entirely. This undermines the purpose of involving the community in the sentencing process and creates the potential for inconsistent sentencing. Furthermore, there is a risk that the provision could create a bias against individuals who have previous convictions for murder. This is because the provision applies only to individuals with previous convictions for murder and not to those without such convictions. This differential treatment creates a stigma against the accused, which could lead to prejudice and unfairness in the trial process. Another concern is that the provision could be seen as a form of double jeopardy, wherein an individual is being punished twice for the same offence. The provision essentially mandates that the period without eligibility for parole for the new murder conviction be consecutive to the period already imposed for the previous murder. This could potentially lead to a very long period without eligibility for parole, even if the accused committed a less severe crime the second time around. In conclusion, while Section 745.21(1) of the Criminal Code of Canada has its merits, it also has several shortcomings. The provision's purpose of involving the community in the sentencing process and ensuring consistency in sentencing is commendable. However, the potential for inconsistent sentencing due to the discretionary nature of the provision, the risk of prejudice against individuals with previous convictions for murder, and the potential for double jeopardy are concerns that need to be addressed. Therefore, there is a need for continued discussion and debate around this provision to determine ways to address these concerns while still achieving the desired goals of the criminal justice system.

STRATEGY

Section 745.21(1) of the Criminal Code of Canada provides an opportunity for the jury to make a recommendation on the length of the parole ineligibility period when an accused has been found guilty of murder for a second time. This provision provides a unique opportunity for the jury to participate in the sentencing process and have their voice heard by the judge. One strategic consideration when dealing with this provision is to carefully select jurors who may be more sympathetic to the accused. Jurors who have strong views on rehabilitation and leniency may be more likely to make a recommendation for a shorter parole ineligibility period. Similarly, jurors who have had personal experience with the criminal justice system or know someone who has may also be more likely to provide a recommendation. Another strategy that could be employed is to present evidence that demonstrates the accused has potential for rehabilitation. Evidence of the accused's past efforts to correct their behaviour, for example, through participation in therapy or support groups, may be presented to the jury to show that the accused is not a lost cause and can be reformed. This evidence could influence the jury to make a recommendation for a shorter parole ineligibility period. Conversely, the prosecution may present evidence that demonstrates the accused is a danger to society and is unlikely to be rehabilitated. Evidence of the accused's past violent behaviour or continued involvement in criminal activity may be presented to the jury to show that the accused is a risk to public safety and should be incarcerated for a longer period of time. It is also important to consider the potential impact of the jury's recommendation on the judge's final decision. Although the judge is not bound by the jury's recommendation, it carries significant weight and may influence the judge's decision. Therefore, both the defence and the prosecution must strategize to present evidence and arguments that support their desired outcome. In conclusion, Section 745.21(1) of the Criminal Code of Canada provides a unique opportunity for the jury to participate in the sentencing process and have their voice heard by the judge. Strategic considerations when dealing with this provision include careful selection of jurors, presentation of evidence of potential for rehabilitation, and consideration of the potential impact of the jury's recommendation on the judge's final decision. Ultimately, both the defence and the prosecution must strategize to present evidence and arguments that support their desired outcome.