When should murderers get parole?
Ethics of consecutive ineligibility questioned by critics and judges
In legal circles they’re called “stackable 25s,” and later this month a Toronto judge will become the latest member of the bench to decide whether to mete out the harsher punishment to two high-profile killers.
But the constitutionality of the Criminal Code section giving judges the discretion to order multiple murderers to serve consecutive periods of parole ineligibility for each crime will not be resolved any time soon. Nor will the controversy. Supporters believe offenders guilty of multiple murders should have their parole eligibility delayed, even if it extinguishes any hope of release and they die in prison.
“In fact, parole for multiple murderers is rare. In other words, eligibility for parole and the granting of parole are two distinct matters.” JUSTICE ERIC MACKLIN IN ALBERTAN RULING
Critics argue the sentencing provision is cruel and unusual punishment and violates charter rights.
They say it is based on the misconception that multiple killers are automatically released after serving 25 years and that harsher penalties will make things better for victims.
It is an emotional issue, no more so for the families and friends of victims.
At the Feb. 12 sentencing hearing for Dellen Millard and Mark Smich, Crown attorney Jill Cameron told Superior Court Justice Michael Code the two remorseless killers should serve 50 years behind bars without hope of parole.
That would mean the pair, now in their 30s, would be well into their 70s before they could even apply for release.
“Where an offender is convicted of at least one planned and deliberate murder, and the murder of another person, there should be separate consequences,” Cameron said.
Millard and Smich were convicted last year of the first-degree murder of Laura Babcock and are already serving life sentences for killing Tim Bosma. Code said he will rule Feb. 26. The Criminal Code section allowing for consecutive parole eligibility periods came into effect in 2011. Prior to that, a person convicted of firstdegree murder was subject to a mandatory parole ineligibility period of 25 years.
So far, Canadian judges have imposed consecutive periods of parole ineligibility in nine reported cases involving at least one first-degree murder conviction, Cameron told court.
That was before an Alberta judge bucked the apparent judicial trend recently by rejecting the prosecution’s request to sentence two triple murderers to consecutive parole ineligibility periods.
While the pair, Jason Klaus and Joshua Frank, committed “horrendous offences,” and their crimes must be strongly denounced, the judge suggested it was unnecessary to sentence the men to 75 years with no ability to apply for parole because they had already received life sentences.
“In fact, parole for multiple murderers is rare. In other words, eligibility for parole and the granting of parole are two distinct matters, and the prospect of the Parole Board granting parole for a multiple murderer is slim,” Justice Eric Macklin wrote.
At the Millard and Smich sentencing hearing in Toronto last week, lawyer Tom Dungey, who represents Smich, made the same point.
“Hardly anyone gets parole after 25 years,” Dungey argued. “He’s got two life sentences . . . what parole board is not going to take a hard, hard look at this?
Catherine Latimer, executive director of the John Howard Society, says if and when violent offenders do get released, they are closely supervised and can have their parole revoked. “A life sentence is already a life sentence.”
There are also dangerous offender laws that can be used to keep highrisk inmates behind bars for their rest of their lives, she notes.
“You’re not going to see Paul Bernardo out there. You’re just not,” said Latimer, referring to the notorious schoolgirl-killer and serial rapist.
Serial killer Clifford Olson, who pleaded guilty to murdering 11 children and teens in the early ’80s, died in prison 30 years into his life sentence.
So far, the constitutionality of the section has been upheld by two Ontario Superior Court judges.
Justice Eugene Ewaschuk ruled in 2015 the federal legislation was not contrary to the Charter in the case of Eaton Centre shooter Christopher Husbands.
He sentenced Husbands, convicted of two counts of second-degree murder, to life imprisonment and two 15-year periods of parole ineligibility, for a total of 30 years.
The convictions were overturned on appeal over the jury selection process.
Last November, Justice Kenneth Campbell also found the section constitutionally valid.
“Such offences cause greater harm, with greater moral culpability, than cases involving but a single murder, and therefore are often deserving of greater punishment,” Campbell wrote.