INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the consequences if an applicant for a criminal conviction review is deemed unlikely to succeed.
SECTION WORDING
745.61(3) If the Chief Justice or judge determines that the applicant has not shown that there is a substantial likelihood that the application will succeed, the Chief Justice or judge may (a) set a time, no earlier than five years after the date of the determination, at or after which the applicant may make another application under subsection 745.6(1); or (b) decide that the applicant may not make another application under that subsection.
EXPLANATION
Section 745.61(3) of the Criminal Code of Canada deals with the possibility of an applicant making another application for parole after being denied. When a person is serving a life sentence, they may apply for parole after serving a minimum number of years in prison. However, if their previous application for parole has been denied, they may want to apply again in the future. In such cases, if the Chief Justice or judge determines that the applicant has not shown that there is a substantial likelihood that their next application for parole will succeed, they may restrict the applicant from making another application under subsection 745.6(1) of the Criminal Code. The subsection 745.6(1) refers to the section that allows a prisoner serving a life sentence to apply for parole after serving a minimum number of years in prison. There are two possible options that the Chief Justice or judge can choose from when denying an applicant's request for another parole application. Firstly, they may set a time, no earlier than five years after the determination date, at which the applicant may make another application under subsection 745.6(1). This means that the applicant must wait at least five years before reapplying. Alternatively, they may decide that the applicant is not eligible to make another application under that subsection at all. This means that the applicant has exhausted their options under this section and the court will not consider any further applications. This decision can be disheartening for prisoners who may have hoped to get another chance at parole, and highlights the importance of putting together a convincing case during the initial application. Overall, this section aims to provide a balance between the need for prisoners to access the parole system and the need for public safety by ensuring that the right prisoners are released at the right time.
COMMENTARY
Section 745.61(3) of the Criminal Code of Canada deals with the issue of multiple applications for judicial reviews of a sentence of life imprisonment without parole eligibility. This provision is particularly significant because it sets out the consequences for an applicant who fails to establish that their sentence is either cruel and unusual punishment or that it is disproportionate in the circumstances. The section asserts that the Chief Justice or judge must first determine whether the applicant has shown that there is a substantial likelihood that their application will succeed. This suggests that the courts will only entertain applications that show strong support for the applicant's claim that their sentence is either cruel and unusual or disproportionate in the circumstances. As such, the provision ensures that the judicial process is not clogged up with frivolous applications, saving valuable time and resources. Assuming the Chief Justice or judge determines that the applicant has not shown that there is a substantial likelihood that the application will succeed, the section goes on to set out the possible outcomes. The first option is that the Chief Justice or judge sets a time - no earlier than five years after the date of the determination - at or after which the applicant may make another application under subsection 745.6(1). This means that the applicant can still challenge their sentence, but only after five years have passed since the determination was made. The second option is that the Chief Justice or judge may decide that the applicant may not make another application under subsection 745.6(1). This is the stronger of the two options, and it essentially means that the applicant is barred from making any further attempts to challenge their sentence through the judicial review process. This is significant because it means that the courts will not have to repeatedly consider the same issues, which would be moot and a waste of resources. Section 745.61(3) is therefore an important provision in the Criminal Code of Canada as it ensures that the judicial review process is limited to meritorious cases and prevents the courts from being burdened with endless applications from applicants whose claims have no realistic chance of success. Moreover, the provision also provides an avenue for applicants to re-apply for a judicial review of their sentence after five years have passed, which recognizes the possibility of changes in circumstances, such as new jurisprudence in the area of sentencing or new evidence, that could impact the applicant's case. This ensures that the judicial review process remains flexible and adaptable to changing circumstances. In conclusion, Section 745.61(3) of the Criminal Code of Canada balances the need for judicial economy with the fundamental rights of an applicant to challenge a sentence of life imprisonment without parole eligibility. The provision ensures that only meritorious cases are brought before the courts, and provides an avenue for the applicant to re-apply in the future, while also recognizing the need to prevent the same issues being repeatedly revisited. Ultimately, Section 745.61(3) is a positive step towards ensuring that the judicial review process remains efficient and fair.
STRATEGY
Section 745.61(3) of the Criminal Code of Canada outlines the provisions for a convicted offender to apply for early parole under certain circumstances. However, for a successful outcome in the application, it is vital to consider some strategic considerations. In this regard, this paper will explore some of the key considerations that are critical for a successful application for early parole under section 745.61(3) and propose some strategies that could be employed. One of the primary strategic considerations when dealing with section 745.61(3) is the likelihood of success. It is important to note that not all applications for early parole are successful. Therefore, before making an application, it is important to understand the eligibility criteria, the required procedure, and what specifically the application entails. In this case, a qualified criminal lawyer could be helpful in assessing the merit of a potential application before filing it. In other words, a lawyer's expertise can be critical in determining whether the evidence, the offender's behavior and circumstances, and rehabilitation efforts are adequate to warrant a favorable ruling. Another strategic consideration when dealing with section 745.61(3) is timing. The earliest an application can be made under this section is five years after the date of the determination. This implies that it may not be possible for some offenders to access early release under this provision, particularly if they have just been sentenced. In such a scenario, a strategic approach would be to focus on the actions, programs, and behavior that would improve the chances of a successful application in the future. The circumstances and behavior of the offender also matter when making an application under section 745.61(3). Offenders who display exemplary conduct during their incarceration may have a high likelihood of success when making an application under this provision. In such cases, strategies to demonstrate a pattern of rehabilitation efforts, good behavior, and remorse could be employed to support the application. For example, engaging in prison volunteer programs, seeking counseling, and taking educational courses or workshops may indicate a genuine commitment to reform, impressing the decision-makers. Furthermore, when making an application under section 745.61(3), it is essential to demonstrate that the offender has community support. This means that a network of people can provide the necessary support if the offender is released early. Letters of support from family members, friends, and religious leaders can be helpful. Additionally, it may be useful to demonstrate a specific plan for living a productive and law-abiding life outside of prison. A clear plan with a definite job or profession, a place to live, and demonstrated involvement in community organizations or activities may help convince the decision-maker of an offender's intent to be a productive citizen. Another strategic consideration to bear in mind when dealing with section 745.61(3) is the role of victim impact statements. Victims or their family members affected by the crimes committed may file a statement outlining the impact of the crime on their lives and why they believe that the offender should not be released. This could significantly impact the outcome of the application. Therefore, it is essential to engage with victims' advocates, who can offer support and guidance on how to address and mitigate any concerns raised in the victim impact statement. In conclusion, making an application under section 745.61(3) of the Criminal Code of Canada is a strategic process that requires a considered approach. It is important to engage legal counsel, display exemplary behavior, seek rehabilitation programs, demonstrate community support, have a clear plan for success outside of prison, and engage with victim advocates. By adopting these and other strategies, offenders may improve their chances of success for early parole under section 745.61(3).