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Criminal Code (R.S.C., 1985, c. C-46)

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Act current to 2021-09-11 and last amended on 2021-08-27. Previous Versions

PART XXIIISentencing (continued)

Imprisonment for Life (continued)

Marginal note:Ineligibility for parole

 Subject to section 745.5, at the time of the sentencing under section 745 of an offender who is convicted of second degree murder, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, if any, made pursuant to section 745.2, by order, substitute for ten years a number of years of imprisonment (being more than ten but not more than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances.

  • 1995, c. 22, s. 6

Marginal note:Idem

 At the time of the sentencing under section 745.1 of an offender who is convicted of first degree murder or second degree murder and who was under the age of sixteen at the time of the commission of the offence, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court, may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, if any, made pursuant to section 745.3, by order, decide the period of imprisonment the offender is to serve that is between five years and seven years without eligibility for parole, as the judge deems fit in the circumstances.

  • 1995, c. 22, ss. 6, 23

Marginal note:Ineligibility for parole — multiple murders

  •  (1) At the time of the sentencing under section 745 of an offender who is convicted of murder and who has already been convicted of one or more other murders, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and the recommendation, if any, made pursuant to section 745.21, by order, decide that the periods without eligibility for parole for each murder conviction are to be served consecutively.

  • Marginal note:Reasons

    (2) The judge shall give, either orally or in writing, reasons for the decision to make or not to make an order under subsection (1).

  • Marginal note:Application

    (3) Subsections (1) and (2) apply to an offender who is convicted of murders committed on a day after the day on which this section comes into force and for which the offender is sentenced under this Act, the National Defence Act or the Crimes Against Humanity and War Crimes Act.

  • 2011, c. 5, s. 5

Marginal note:Application for judicial review

  •  (1) Subject to subsections (2) to (2.6), a person may apply, in writing, to the appropriate Chief Justice in the province in which their conviction took place for a reduction in the number of years of imprisonment without eligibility for parole if the person

    • (a) has been convicted of murder or high treason;

    • (a.1) committed the murder or high treason before the day on which this paragraph comes into force;

    • (b) has been sentenced to imprisonment for life without eligibility for parole until more than fifteen years of their sentence has been served; and

    • (c) has served at least fifteen years of their sentence.

  • Marginal note:Exception — multiple murderers

    (2) A person who has been convicted of more than one murder may not make an application under subsection (1), whether or not proceedings were commenced in respect of any of the murders before another murder was committed.

  • Marginal note:Less than 15 years of sentence served

    (2.1) A person who is convicted of murder or high treason and who has served less than 15 years of their sentence on the day on which this subsection comes into force may, within 90 days after the day on which they have served 15 years of their sentence, make an application under subsection (1).

  • Marginal note:At least 15 years of sentence served

    (2.2) A person who is convicted of murder or high treason and who has served at least 15 years of their sentence on the day on which this subsection comes into force may make an application under subsection (1) within 90 days after

    • (a) the end of five years after the day on which the person was the subject of a determination made under subsection 745.61(4) or a determination or conclusion to which subsection 745.63(8) applies; or

    • (b) the day on which this subsection comes into force, if the person has not made an application under subsection (1).

  • Marginal note:Non-application of subsection (2.2)

    (2.3) Subsection (2.2) has no effect on a determination or decision made under subsection 745.61(3) or (5) or 745.63(3), (5) or (6) as it read immediately before the day on which this subsection comes into force. A person in respect of whom a time is set under paragraph 745.61(3)(a) or 745.63(6)(a) as it read immediately before that day may make an application under subsection (1) within 90 days after the end of that time.

  • Marginal note:Further five-year period if no application made

    (2.4) If the person does not make an application in accordance with subsection (2.1), (2.2) or (2.3), as the case may be, they may make an application within 90 days after the day on which they have served a further five years of their sentence following the 90-day period referred to in that subsection, as the case may be.

  • Marginal note:Subsequent applications

    (2.5) A person who makes an application in accordance with subsection (2.1), (2.2) or (2.3), as the case may be, may make another application under subsection (1) within 90 days after

    • (a) the end of the time set under paragraph 745.61(3)(a) or 745.63(6)(a), if a time is set under that paragraph; or

    • (b) the end of five years after the day on which the person is the subject of a determination made under subsection 745.61(4) or a determination or conclusion to which subsection 745.63(8) applies, if the person is the subject of such a determination or conclusion.

  • Marginal note:Subsequent applications

    (2.6) A person who had made an application under subsection (1) as it read immediately before the day on which this subsection comes into force, whose application was finally disposed of on or after that day and who has then made a subsequent application may make a further application in accordance with subsection (2.5), if either paragraph (2.5)(a) or (b) is applicable.

  • (2.7) The 90-day time limits for the making of any application referred to in subsections (2.1) to (2.5) may be extended by the appropriate Chief Justice, or his or her designate, to a maximum of 180 days if the person, due to circumstances beyond their control, is unable to make an application within the 90-day time limit.

  • (2.8) If a person convicted of murder does not make an application under subsection (1) within the maximum time period allowed by this section, the Commissioner of Correctional Service Canada, or his or her designate, shall immediately notify in writing a parent, child, spouse or common-law partner of the victim that the convicted person did not make an application. If it is not possible to notify one of the aforementioned relatives, then the notification shall be given to another relative of the victim. The notification shall specify the next date on which the convicted person will be eligible to make an application under subsection (1).

  • Definition of appropriate Chief Justice

    (3) For the purposes of this section and sections 745.61 to 745.64, the appropriate Chief Justice is

    • (a) in relation to the Province of Ontario, the Chief Justice of the Ontario Court;

    • (b) in relation to the Province of Quebec, the Chief Justice of the Superior Court;

    • (c) in relation to the Province of Newfoundland and Labrador, the Chief Justice of the Supreme Court, Trial Division;

    • (d) in relation to the Provinces of New Brunswick, Manitoba, Saskatchewan and Alberta, the Chief Justice of the Court of Queen’s Bench;

    • (e) in relation to the Provinces of Nova Scotia, British Columbia and Prince Edward Island, the Chief Justice of the Supreme Court; and

    • (f) in relation to Yukon, the Northwest Territories and Nunavut, the Chief Justice of the Court of Appeal.

  • 1993, c. 28, s. 78
  • 1995, c. 22, s. 6
  • 1996, c. 34, s. 2
  • 1998, c. 15, s. 20
  • 2002, c. 7, s. 146
  • 2011, c. 2, s. 3
  • 2015, c. 3, s. 55

Marginal note:Judicial screening

  •  (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.

  • Marginal note:Criteria

    (2) In determining whether the applicant has shown that there is a substantial likelihood that the application will succeed, the Chief Justice or judge shall consider the criteria set out in paragraphs 745.63(1)(a) to (e), with any modifications that the circumstances require.

  • Marginal note:Decision re new application

    (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.

  • Marginal note:If no decision re new application

    (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.

  • Marginal note:Designation of judge to empanel jury

    (5) If the Chief Justice or judge determines that the applicant has shown that there is a substantial likelihood that the application will succeed, the Chief Justice shall designate a judge of the superior court of criminal jurisdiction to empanel a jury to hear the application.

  • 1996, c. 34, s. 2
  • 2011, c. 2, s. 4
 
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