Life Means Life unconstitutional, critics charge

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This article was published 31/8/2015 (1238 days ago), so information in it may no longer be current.

Conservative Leader Stephen Harper wants to prevent certain "heinous" criminals, such as serial killers, from getting out of prison.

The Conservatives have made their proposed Life Means Life legislation a key plank of their election campaign, but critics say they might be doubling up on laws already in place in Canada.

Currently, those convicted of first-degree murder earn an automatic life sentence and can only apply for parole after 25 years behind bars. Under the proposed legislation, certain offenders would be unable to apply for parole but they could ask the public safety minister for relief after serving 35 years.

The Life Means Life Act would apply to the "most heinous" of murderers and to those convicted of high treason, imprisoning them for the rest of their lives.

The Tories say killings involving sexual assault, kidnapping, terrorism and the killing of police or corrections officers would be targeted.

Rather than the independent Parole Board of Canada, the decision to grant relief would rest with an elected minister, which critics say is unconstitutional.

"Being able to make a case to a minister of the Crown after 35 years raises some serious questions about how adequate that review will be, and whether it would in fact be based on the type of threat the person poses now or whether it would attract some politicization," said Catherine Latimer, executive director of the John Howard Society of Canada, from her office in Ottawa.

In 2013, there were 5,335 offenders serving a life sentence or an indeterminate sentence, according to statistics from the Correctional Service of Canada. Of those, 486 were designated dangerous offenders, meaning they were in prison indefinitely after the court decided they were likely to reoffend.

Currently, a dangerous-offender designation effectively puts serial killers in prison until death. While they can apply for parole, they're unlikely to get it.

In 2013, most dangerous offenders were in prison. Of the 486 dangerous offenders with indeterminate sentences, 468 were in custody. Only 18 were being supervised in the community with either day parole or full parole.

"Our position is that the existing system is more than adequate to protect people from the worst of the worst, as it has been described," Latimer said. "People who are dangerous offenders, there's a reverse onus on them and they have to establish that they're no longer dangerous before they are considered for any kind of release.

"The difficulty is that it will be an overreach by putting this provision in place. It will apply to a whole lot of people who may not require a lifelong incarceration for the protection of others," she said.

In Manitoba, there were 17 dangerous offenders as of 2013. Since 1976, there have been 18 such designations in Manitoba, with one offender having died. Saskatchewan had 54 dangerous offender designations.

The Conservatives have referred to high-profile cases of serial killers and other dangerous criminals applying for parole to back up their Life Means Life plans, but as Latimer points out, the worst of the worst are unlikely to get out. Instead, Life Means Life legislation might take away the chance for reform for some offenders.

"Everyone in our view has an opportunity to transform themselves and become different people over time. And these are long periods of time — 25 to 40 years — people change a lot," Latimer said.

"It's very important for the process of reform that people retain some sense of hope. It becomes a lot more difficult for them to be able to change, because they don't really have anything to look forward to."

Latimer said the proposed law could face court challenges, and Paul Daly, associate dean of the law faculty at Université du Montréal agrees. But he said the Life Means Life bill may have enough safeguards to stand up to challenges.

"Even though the provisions in the bill are relatively skeletal, I think the courts are likely to put a lot of procedural flesh on the bones as it works its way through the judicial system," Daly said. He said any public safety minister receiving a relief application has the option of sending it to the parole board and then considering the board's recommendations.

"For example, it will be difficult, I think, for the minister to avoid referring applications to the parole board. So even though the bill sets up the minister as the decision-maker, he has the authority to get the advice of the parole board, and I think courts may insist that he does get the advice of the parole board in all but the most exceptional cases," Daly said.

"A minister who refuses to follow a recommendation from the parole board is likely to need very good reasons for refusing."

Daly said a sentence as long as 35 years could be considered "problematic" and would probably face a court challenge as well.

inayat.singh@freepress.mb.ca