INTRODUCTION AND BRIEF DESCRIPTION
If an applicants request for review of a conviction is not deemed likely to succeed, they may not re-apply for another hearing for at least five years.
SECTION WORDING
745.61(4) If the Chief Justice or judge determines that the applicant has not shown that there is a substantial likelihood that the application will succeed but does not set a time for another application or decide that such an application may not be made, the applicant may make another application no earlier than five years after the date of the determination.
EXPLANATION
Section 745.61(4) of the Criminal Code of Canada outlines the procedure for individuals seeking a review of their sentence after being convicted of a serious offence. It allows for an application to be made to the Chief Justice or judge in order to have the sentence reduced based on certain criteria. However, if the Chief Justice or judge determines that the applicant has not met the required criteria to have their sentence reduced, they may not set a date for a future application, or make a decision regarding the possibility of future applications. If this is the case, the applicant is required to wait a period of at least five years before making another application. This provision is in place to prevent individuals from repeatedly applying for a sentence reduction without sufficient grounds. It ensures that the process is fair and that applicants are required to show that their application has a substantial likelihood of success before being allowed to proceed. Overall, Section 745.61(4) serves as an important safeguard in the criminal justice system, promoting fairness and accountability in the application of sentencing laws.
COMMENTARY
Section 745.61(4) of the Criminal Code of Canada governs the process of applying for a review of a sentence that is deemed excessive or unjust. Under this section, an applicant may make another application for review of their sentence if the Chief Justice or judge determines that the applicant has not shown a substantial likelihood of a successful outcome. However, the applicant must wait for a minimum of five years after the date of the determination before making another application. This section of the Criminal Code of Canada is important in ensuring that the administration of justice is fair and transparent. It provides a mechanism for individuals who believe that their sentence is unjust or excessive to seek a remedy. By allowing a review of their sentence, it gives individuals hope for a better outcome and reinforces the legitimacy of the justice system in the eyes of the public. Moreover, this section recognizes the important role of the judiciary in ensuring justice prevails. It gives judges the power to consider the merits of an application for review and determine whether or not there is a substantial likelihood of a successful outcome. In doing so, it encourages judges to exercise their discretion wisely and in accordance with the principles of fairness and justice. The provision also sets a clear and reasonable time frame for individuals to make another application for review. The five-year waiting period strikes a balance between providing an avenue for individuals to seek justice and preventing the system from being overburdened with frequent, frivolous applications. It encourages applicants to reflect critically on their circumstances and gather more evidence to strengthen their case before making another application. Overall, section 745.61(4) of the Criminal Code of Canada is a crucial provision that reinforces the principles of fairness and justice in the criminal justice system. It acknowledges the importance of the judiciary in ensuring justice prevails and provides a transparent mechanism for individuals to seek a remedy if they believe their sentence is excessive or unjust. The waiting period of five years strikes a balance between providing an opportunity for applicants to seek justice while preventing the system from being overburdened with frequent applications.
STRATEGY
Section 745.61(4) of the Criminal Code of Canada outlines the conditions under which an applicant can make another application five years after an unsuccessful application for a faint hope hearing. A faint hope hearing is an avenue available to convicted murderers in Canada to apply for a reduced sentence after serving 15 years of their sentence. The hearing is a comprehensive review of the case by a jury, and if successful, it can result in the reduction of a sentence from life to a fixed term. Strategic considerations when dealing with this section of the Criminal Code of Canada revolve around the fact that the applicant has to wait for another five years before applying again if their first application fails, and there is a need to adopt a strategy that ensures success on the second application. Below are some strategic considerations that may aid an applicant after an unsuccessful application under section 745.61(4) of the Criminal Code of Canada. The first consideration is ensuring that the grounds for the initial application are as strong as possible. It is better to invest time and resources in research and gathering evidence to support the grounds for an application than doing a hasty job. An unsuccessful application can harm an applicant's chances if they lack the necessary supporting evidence for a future application. The second strategy that the applicant can employ is to conduct a review of the unsuccessful application and understand why it was not successful. Consulting a legal expert can aid an applicant in identifying why their application fell short and help them develop strategies to address these areas. Thirdly, an applicant should consider behavior during the five-year waiting period. If they are serving a life sentence, they should undertake any available activities that may reflect positively on them. They can undertake educational or vocational programs or engage in volunteer activities. These actions can convince a jury of their remorse and rehabilitation, which can support their future application. Fourthly, an applicant can consider procedural changes as a strategy to remedy previous flaws. For example, if the applicant did not have the support of a legal expert during the initial application, they can engage a legal team for their next application. Additionally, they can improve their communication with legal counsel to ensure that they adequately understand the process and what is required of them. Finally, an applicant can consider seeking help from other sources outside the criminal justice system during the waiting period. This may include engaging in mental health therapies or rehabilitation programs. Such programs can help the applicant overcome negative behaviors and enhance their prospects for rehabilitation, which are crucial in the jury decision-making process. In conclusion, section 745.61(4) of the Criminal Code of Canada requires the applicant to wait for another five years before making another application after an unsuccessful faint hope hearing application. Adopting strategic considerations and employing the right strategies can aid an applicant in their subsequent application. Applicants should focus on improving the grounds for their application, analyzing the flaws in their initial application, behaving positively during the waiting period, engaging a legal expert, seeking help outside the criminal justice system, and making procedural improvements, where necessary.