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Criminal - Sentencing - Parole Eligibility

. R. v. Husbands

In R. v. Husbands (Ont CA, 2024) the Court of Appeal considers the determination of parole eligibility:
[98] In the normal course, the determination of parole eligibility is left to the prerogative of the Parole Board. The Board is an expert in all such matters, able to account in real time for an offender’s progress while detained in custody and their potential dangerousness if released into the community.

[99] Although it is uncommon and only to be done sparingly, in some situations, sentencing judges will delay parole, pursuant to s. 743.6 of the Criminal Code. When this is done, it can constitute a significant component of the sentence imposed: R. v. Zinck, 2003 SCC 6, [2003] 1 S.C.R. 41, at para. 24.

[100] When considering whether to exercise their discretion under s. 743.6, judges must first determine a fit sentence, taking all relevant factors into account. Only after that determination does the analysis shift to the potential to delay parole eligibility: Zinck, at para. 30. The same sentencing factors apply to the determination of delayed parole, with a particular emphasis on specific and general deterrence and denunciation: Zinck, at para. 30; Criminal Code, s. 743.6(2).

[101] Accordingly, the procedure for determining a sentence involving an increase in parole ineligibility has been referred to as a “double weighing exercise”. The following passage from Zinck, at para. 33 neatly summarizes that exercise:
First, they must evaluate the facts of the case, in light of the factors set out in s. 718 of the Code, in order to impose an appropriate sentence. Then, they must review the same facts primarily in the perspective of the requirements of deterrence and denunciation, which are given priority at this stage, under s. 743.6(2). The decision to delay parole remains out of the ordinary, but may and should be taken if, after the proper weighing of all factors, it appears to be required in order to impose a form of punishment which is completely appropriate in the circumstances of the case. This decision may be made, for example, if, after due consideration of all the relevant facts, principles and factors at the first stage, it appears at the second stage that the length of the jail term would not satisfy the imperatives of denunciation and deterrence. This two-stage process, however, does not require a special and distinct hearing. It should be viewed as one sentencing process, where issues of procedural fairness will have to be carefully considered.
. R. v. Cargioli

In R. v. Cargioli (Ont CA, 2023) the Court of Appeal considered appeals by three defendants from convictions, one for first-degree murder and two for second-degree murder. Here the court considers the appellate deference (SOR) to be accorded determinations of 'parole eligibility':
[162] Fixing a period of parole ineligibility, is a matter for the discretion of the trial judge. This court will not interfere with the period of parole ineligibility fixed by the trial judge absent a demonstration that the parole ineligibility period set by the trial judge is demonstrably unfit: R. v. Gager, 2020 ONCA 274, at para. 158, leave to appeal refused, [2020] S.C.C.A. No. 444.


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Last modified: 02-03-24
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