INTRODUCTION AND BRIEF DESCRIPTION
This section requires judges to provide reasons for their decision to make or not make an order under subsection (1).
SECTION WORDING
745.51(2) The judge shall give, either orally or in writing, reasons for the decision to make or not to make an order under subsection (1).
EXPLANATION
Section 745.51(2) of the Criminal Code of Canada is a provision that requires a judge to provide reasons for their decision to either make or not make an order under subsection (1) of the same section. Subsection (1) deals with the issue of parole eligibility for offenders who have been convicted of first-degree murder and sentenced to life imprisonment without the possibility of parole. This subsection provides for the possibility of granting an offender who meets certain criteria the right to apply for parole after serving 25 years of their sentence. The decision to grant or deny the right to apply for parole is a highly significant one, as it can have far-reaching consequences. Therefore, subsection (2) of Section 745.51 requires judges to provide reasons, either orally or in writing, for their decision in order to ensure transparency and accountability in the judicial process. By doing so, judges are expected to provide a clear and cogent explanation of the factors that influenced their decision, such as the offender's level of remorse, their likelihood of reoffending, and the nature and circumstances of the crime they committed. Overall, Section 745.51(2) serves as an important safeguard against arbitrary decision-making by judges. It ensures that decisions related to the parole eligibility of offenders convicted of first-degree murder are made on the basis of clear and objective criteria, and that judges are accountable for the decisions they make. By requiring judges to provide reasons for their decisions, this provision helps to promote transparency, fairness, and the rule of law.
COMMENTARY
Section 745.51(2) of the Criminal Code of Canada is an essential provision that mandates judges to provide reasons for their decision to make or not to make an order under subsection (1). This section serves as a crucial aspect of the criminal justice system, as it demands accountability and transparency from judges. It ensures that not only is justice being provided, but it is being done so in a manner that is clear and understandable to all parties involved. Judges are called upon to make decisions that have significant consequences for both the accused and the victim. These decisions can range from granting parole or probation to extending a sentence. The mere fact that a judge must now provide reasons in making these decisions includes accountability of the judiciary for their decisions. This fosters trust in the system and ensures that the decisions made are rational, well thought out, and fair. Moreover, the provision of reasons ensures that the accused or offender understands the rationale behind the decision. In cases where an order is made, this can allow the offender to understand the conditions under which the order is being granted. In cases where an order is refused, it can provide clarity on why their request for relief was declined and what can be done in the future to remedy the situation. Furthermore, the inclusion of this provision encourages judges to reflect on their decisions carefully. Judges would need to take the time to articulate their reasoning, ensuring that their decision is well considered, reasonable, and in keeping with the law. This will also help in mitigating judicial errors, as the reasons provided will allow for a better understanding of the judge's decision-making process. The provision of reasons by judges is also crucial for enhancing public confidence in the criminal justice system. It provides transparency in the decision-making process and ensures that the public can examine the cases and methods used to arrive at decisions. This transparency helps build public confidence in the criminal justice system, especially if the public perceives that the system is fair and transparent. In conclusion, Section 745.51(2) of the Criminal Code of Canada is a crucial provision that provides for accountability, transparency, and fairness in the criminal justice system. It mandates that judges provide reasons for their decision under subsection (1); such reasons ensure that the judicial process is transparent, reasonable and in keeping with the law. By requiring judges to provide reasons, the legal system can engender public confidence, reduce judicial errors, and provide clarity for victims, offenders, and the legal community at large.
STRATEGY
Section 745.51(2) of the Criminal Code of Canada is a provision that requires judges to provide reasons for their decision when making or not making an order under subsection (1). This section is particularly relevant in cases where an offender seeks a reduction in their sentence through the so-called "faint-hope clause." The faint-hope clause allows offenders who have been sentenced to life imprisonment to apply for early parole after they have served 15 years. In order to be eligible for early parole, they must persuade a judge that they are deserving of the opportunity to apply for parole. The judge must be convinced that the offender's rehabilitation, conduct in prison, and other factors justify the potential reduction in their sentence. A successful application can lead to parole eligibility after serving 15 years, rather than the usual 25 years for those serving a life sentence. Given the seriousness of the offenses that result in life imprisonment, judges must carefully consider the evidence before them and the potential impact on society and victims. Providing reasons for their decisions is crucial to maintain public confidence in the justice system and demonstrate accountability for their actions. One key strategic consideration when dealing with section 745.51(2) is to ensure that the reasons provided are clear, concise, and logical. Judges are expected to explain how they arrived at their decision and to provide a rational basis for their findings. To this end, a judge might carefully review the offender's criminal history, the nature and severity of the crime committed, the offender's conduct in prison, any medical or mental health issues, and other relevant factors. Another important strategic consideration is to ensure that the reasons articulated comply with the Charter of Rights and Freedoms. The Charter sets out certain fundamental rights, such as the right to a fair trial and the right to be free from cruel and unusual punishment. Given the potential impact on an offender's rights, a judge must ensure that their decision is consistent with the Charter. To this end, a judge might consider the specific circumstances of the offender and the nature of the offense when crafting their reasons. For example, they might take into account whether the offender was a first-time offender, or whether they have shown remorse for their actions. Alternatively, they might consider the impact of the offense on the victim and whether the offender has taken any steps to make amends. One potential strategy that could be employed in the context of section 745.51(2) is for counsel to highlight any mitigating factors that might support a more favorable decision. For example, if an offender has made significant efforts to rehabilitate themselves and has taken responsibility for their actions, this might persuade a judge that they are deserving of the opportunity to apply for early parole. Ultimately, the provision of reasons under section 745.51(2) is a critical feature of the justice system that helps to ensure that the public has confidence in the decision-making process. By carefully considering the evidence before them, complying with the Charter, and crafting clear and concise reasons, judges can demonstrate their accountability and provide a transparent basis for their decisions.