INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the requirements for determining an application for early parole eligibility.
SECTION WORDING
745.61(1) On receipt of an application under subsection 745.6(1), the appropriate Chief Justice shall determine, or shall designate a judge of the superior court of criminal jurisdiction to determine, on the basis of the following written material, whether the applicant has shown, on a balance of probabilities, that there is a substantial likelihood that the application will succeed: (a) the application; (b) any report provided by the Correctional Service of Canada or other correctional authorities; and (c) any other written evidence presented to the Chief Justice or judge by the applicant or the Attorney General.
EXPLANATION
Section 745.61(1) of the Criminal Code of Canada outlines the process for determining whether an application for a review of a sentence will be granted. When a request for such a review is received, the Chief Justice or designated judge must evaluate the evidence before them and determine whether there is a substantial likelihood that the application will succeed. This decision must be based solely on the written evidence presented, which includes the application itself, any reports from correctional authorities, and any additional written material submitted by either the applicant or the Attorney General. The concept of substantial likelihood" is important here. This means that the Chief Justice or designated judge must determine whether it is likely, based on the evidence presented, that the application for a sentence review will be successful. This is not a guarantee that the application will be granted, but rather an assessment of the applicant's chances of success. Overall, this section of the Criminal Code of Canada is designed to ensure that requests for sentence reviews are assessed fairly and consistently. By relying on written evidence only, the process is streamlined and standardized, which can help promote confidence in the justice system. Additionally, by requiring a finding of substantial likelihood before a review is granted, there is some measure of protection against frivolous or unsupported requests.
COMMENTARY
Section 745.61(1) of the Criminal Code of Canada outlines the process by which an application for a review of a life sentence may be considered. The review process can be initiated by an offender who has been sentenced to life in prison and has served a minimum of 15 years of their sentence, or after serving multiple consecutive life sentences totaling 15 years or more. The offender may apply for a review of their sentence based on changes in circumstances or evidence that was not available at the time of their conviction. The purpose of this section is to ensure that there is a fair and just review process for offenders who have served a significant portion of their life sentence and are seeking a chance at release. The section outlines the written material that will be considered in the review process, which includes the application, any reports provided by correctional authorities, and any other written evidence presented by the applicant or the Attorney General. The review process itself is undertaken by the Chief Justice or a designated judge of the superior court of criminal jurisdiction. The decision to designate a judge or have the Chief Justice make the determination will depend on the nature and complexity of the case at hand. The written material will be evaluated by the judge on the basis of whether the applicant has shown, on a balance of probabilities, that there is a substantial likelihood that the application will succeed. This means that the evidence presented by the applicant must be persuasive enough to demonstrate that their application for a review of their life sentence has merit. One of the significant challenges with reviewing life sentences is the perception that the person who committed the original crime is still a danger to society. It is essential for the review process to consider the offender's behavior and conduct while in prison, as well as any evidence that may suggest they are no longer a risk to the community. The review process under section 745.61(1) strikes a balance between the need to ensure public safety and the need for a fair and just rehabilitation process for offenders. The application of this section of the Criminal Code of Canada recognizes that individuals who have been convicted of serious offenses and sentenced to life imprisonment can change and should be given an opportunity to seek a review of their sentence if appropriate. In conclusion, section 745.61(1) of the Criminal Code of Canada establishes clear guidelines for offenders seeking a review of their life sentence. The review process serves as an opportunity for offenders to demonstrate that they have changed and can be safely reintegrated into society. By evaluating the written material on a balance of probabilities, judges can make informed decisions that consider both public safety and the best interests of the offender.
STRATEGY
Section 745.61(1) of the Criminal Code of Canada is a critical provision that outlines the process for applying for early parole eligibility for offenders serving a life sentence. The application process is complex and requires careful strategic consideration to give the application the best chance of success. A successful application can lead to early release, which can be a significant advantage for offenders as they attempt to rebuild their lives. One of the key strategic considerations for applicants is to ensure that they have carefully prepared all the necessary documentation and criteria that they need to meet. According to the provision, the applicant must show on a balance of probabilities that there is a substantial likelihood that their application will succeed. Therefore, the application must be clearly articulated and backed by robust evidence. The application should provide all the necessary information that the Chief Justice or designated judge might require to make an informed decision. This could include evidence of good conduct during incarceration, emotional and mental stability, community support, and a credible plan for rehabilitation. Another critical strategic consideration in applying for early parole eligibility is the selection of a legal representative. The Criminal Code of Canada allows applicants to be represented by a lawyer during the application process. Applicants should select an experienced and reputable criminal lawyer who has enough knowledge of this area of the law to handle the complexities of the process. A competent legal representative can assist the applicant in navigating the legal hurdles, help draft an articulate, persuasive application, and give appropriate advice on the presentation of evidence. Thirdly, the applicant should put forward a strong and substantive argument that demonstrates why early parole eligibility should be granted. This argument should be backed by sound and compelling evidence. For instance, an offender who has undertaken several counseling and therapy sessions to deal with their offending behavior, has developed a support network, and has already demonstrated significant progress towards their eventual release might have a compelling case. They could provide evidence from the correctional authorities, certificates of completion for training and education programs, and letters of support from community members, family, and friends. Fourthly, timing is an essential strategic consideration when applying for early parole eligibility. It is advisable that applicants prepare their application well in advance and submit it at an appropriate time. For instance, applicants should avoid submitting their applications when a significant event, such as a prison riot, a parole scandal, or a change in government, occurs. Most importantly, timing also means that the applicant should have served a minimum number of years behind bars before applying. Applicants who have served less than the mandatory minimum sentence or have a history of violent or dangerous behavior behind bars are less likely to succeed. Finally, a successful application for early parole eligibility under section 745.61(1) would usually require the support and advocacy of key stakeholders, such as parole officers, psychologists, psychiatrists, and correctional staff. Applicants should actively seek out these stakeholders and ensure that they have their support by keeping them informed and estimating their feedback. These stakeholders have an in-depth knowledge of the offender's behavior and progress while incarcerated and can provide valuable insight into their readiness for early release. In conclusion, applying for early parole eligibility under section 745.61(1) of the Criminal Code of Canada can be a daunting task that requires careful preparation, a strong legal representation, robust argument, appropriate timing, and advocacy from key stakeholders. Strategic considerations at each stage of the application process can make all the difference in the applicant's chances of success.