R. v. Swietlinski

R. v. Swietlinski
Collection
Supreme Court Judgments
Date
1994-09-30
Report
[1994] 3 SCR 481
Case number
23100
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 23100
Decision Content
R. v. Swietlinski, [1994] 3 S.C.R. 481
Roman Swietlinski Appellant
v.
Attorney General for Ontario Respondent
Indexed as: R. v. Swietlinski
File No.: 23100.
1994: May 27; 1994: September 30.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the ontario court (general division)
Criminal law ‑‑ Parole eligibility hearing with jury after 15 years of prison term served ‑‑ Factors to be considered listed and ultimate decision at jury's discretion -- Inflammatory comments by Crown ‑‑ Whether comments rendering hearing unfair ‑‑ Whether victim impact statements admissible ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 735(1.1) , 744 , 745(1) (a), (b), (2) , (3) , (4) (a), (b).
Respondent, who had been convicted of first degree murder, became a model prisoner during the course of the first two years of his sentence (25 years imprisonment without eligibility for parole) and over time was transferred to progressively less secure institutions. After having served 15 years of his sentence respondent applied under s. 745 of the Criminal Code for a reduction in the number of years of imprisonment without eligibility for parole.
At the preliminary hearing, the judge held that statements by members of the victim's family were not admissible as evidence because they were not relevant to the assessment of the factors listed for the jury's consideration in s. 745(2) and because a s. 745 hearing did not form part of the sentencing process. (Section 735(1.1) of the Code made such statements admissible in order only to facilitate the determination of the sentence.)
The conduct of the hearing itself and statements and arguments made during the hearing (albeit without objection) gave rise to the allegation that the hearing was unfair. Crown counsel, in addressing the jury, used language that had the effect of discrediting the s. 745 hearing and of suggesting that it was unduly favourable to the applicant, even to the extent of subverting the intent of Parliament in imposing the mandatory sentence. It was pointed out that the victim, unlike applicant, had no chance to reduce her suffering and the mandatory sentence was a bargain compared to the death penalty it replaced. Reference was made to the quality of life in minimum security institutions. Crown counsel also sought to draw the jury's attention to other cases of murderers who had again murdered while on parole and made comments about increasing violence in society and the need ‑‑ here the need for the jury ‑‑ to do something about it. Finally, the judge limited discussion of the applicant's character to matters prior to or contemporaneous with the murder.
The jury refused to reduce the period of the appellant's ineligibility for parole and prevented his filing another application under s. 745 by setting the end of his mandatory sentence without parole eligibility as the next date on which he could make a similar application. The appellant sought and obtained leave to appeal directly to this Court under s. 40 of the Supreme Court Act which authorizes a direct appeal since the Code makes no provision for any other avenue of appeal.
At issue here was whether the hearing was unfair in light of the inflammatory and highly prejudicial matters raised by the Crown in questioning certain witnesses and in his address to the jury. Also at issue was the question of admissibility of statements by the victim's family.
Held (La Forest, L'Heureux‑Dubé, Iacobucci and Major JJ. dissenting): The appeal should be allowed.
Per Lamer C.J. and Gonthier and Cory JJ.: The section 745 reassessment procedure is to re‑examine the sentence in light of new information or factors which could not have been known initially. It is to call attention to changes in the applicant's situation which might justify imposing a less harsh penalty. The jury's decision is not essentially different from the ordinary decision regarding length of a sentence. The jury has a broad discretionary power, quite unlike at trial where it must choose between guilt or innocence based on very specific rules of law.
The discretionary nature of the decision compels the jury to adopt a different analytical approach from that used in a trial. At trial, the jury must decide whether each element of an offence has been proved beyond a reasonable doubt. In a discretionary hearing, however, the factors listed for consideration must be weighed as a whole in arriving at a conclusion. Some factors may work for, and others against, the applicant, quite unlike a trial where strength in one element cannot offset weakness in another. In discretionary hearings like a s. 745 hearing, the concepts of burden of proof, proof on a balance of probabilities, or proof beyond a reasonable doubt are of very limited value. The function of Crown counsel in a s. 745 hearing is no different from the function in a criminal trial.
Section 745 must be accepted and applied like other Code sections. The prosecution may not call into question Parliament's decision to enact this provision by suggesting to the jury that it is an abnormal procedure, excessively indulgent and contrary to what it argues was Parliament's intent in providing for a 25‑year sentence without parole eligibility. It is unacceptable for a lawyer to make observations that effectively urge the jurors not to make a decision in accordance with the law if they feel that it is bad law.
Counsel may not undermine the fairness of the proceeding by constantly repeating that imprisonment for 25 years is a substitute for the death penalty. That is an invitation to offset the alleged excessive clemency of Parliament by a severity not justified by the wording of s. 745 . The jury does not have to decide whether the penalties imposed by Parliament are too severe or not severe enough. It must simply apply the Code.
It is completely improper to invite the jury to consider isolated cases in which prisoners committed murder after being paroled; it must deal only with the applicant's case. Further, the jury must not consider the functioning of the existing parole system. The appellant should not be punished because of suggested weaknesses of the system.
Some observations made by Crown counsel may have suggested to the jury that its function was in some way to solve the problem of violence in society. Since deterrence is one of the functions of the penalty, the jury can legitimately be invited to, and can, take this factor into account when hearing an application under s. 745 . This, however, should be done in the context of a general submission on the various functions performed by the penalty. Referring the jury to newspaper headlines dealing with the worst crimes imports unacceptable in terrorem arguments.
The remarks by Crown counsel seriously compromised the fairness of the hearing. The judge's failure to reprimand him and to tell the jury that such remarks should not be taken into account only aggravated the lack of fairness. Although the absence of an objection is a factor which an appellate court may take into account in deciding whether to dismiss an appeal, the hearing was unfair. The trial judge had a duty to ensure that the hearing was fair and, since he did not do so, this Court must intervene, whether counsel for the appellant objected or not.
The judge wrongly limited his discussion of appellant's character to matters prior to or contemporaneous with the murder. He should, however, have mentioned both the appellant's past and present character since s. 745 is to reassess the penalty imposed on the offender by reference to the way his or her situation has evolved 15 years later.
A judge may always give his or her opinion on the facts, so long as the jurors are made to clearly understand that the final decision is theirs. Here the judge, in commenting on only one of the three factors mentioned in s. 745(2) , might have given the impression that they were separate and that each had to be established on the balance of probabilities. Such an approach is not suitable in the case of a discretionary decision. The judge's review of the psychiatric evidence unintentionally favoured the respondent.
The victim's testimony is relevant and admissible as the nature of the offence is one of the criteria listed in s. 745(2) that the jury must take into account. Given that the ordinary rules of evidence have been loosened, this testimony can be presented by means of a written statement which contains only relevant information.
Per Sopinka J.: The reasons of Lamer C.J. were agreed with, except for his treatment of victim impact statements. In this regard, the conclusion of Major J. was agreed with: the judge's exercise of his discretion against the use of the victim impact statements should not be interfered with. The presiding judge at a new hearing should have the right to consider the matter afresh in accordance with the principles stated by Major J.
Per McLachlin J.: The reasons of Lamer C.J. were agreed with except for the issue of the admissibility of victim impact statements. The reasons of Major J. were agreed with in that regard.
Per La Forest, L'Heureux‑Dubé, Iacobucci and Major JJ. (dissenting): The reasons of Lamer C.J. were agreed with, except with respect to the statements made by Crown counsel and to the admissibility of victim impact statements at s. 745 hearings.
Section 745 only entitles a successful applicant to apply to the Parole Board for early parole; there is no guarantee that parole will be granted. Thus, the s. 745 jury is not empowered in any respect to determine the length of sentence.
A jury seised of a parole eligibility review application must consider (1) the applicant's character; (2) the applicant's conduct while serving his or her sentence; (3) the nature of the offence for which the applicant was convicted; and (4) such other matters as the presiding judge deems relevant. While some sentencing principles, relating to rehabilitation and public protection will inevitably enter into the jurors' minds as they consider character, conduct and the nature of the offence, sentencing principles (e.g., rehabilitation, deterrence, denunciation) should not play any significant role at the hearing. Parliament has not seen fit to incorporate traditional principles of sentencing into s. 745 , and such principles should not be read into the section.
The Court must determine whether the applicant had a fair hearing and, to that end, can review the conduct of the presiding judge and his or her charge to the jury. In view of the nature of the proceedings, and in particular the fact that the ultimate determination is made by the jury based on a range of open‑ended factors, deficiencies that might lead to unfairness in a criminal trial will not necessarily have the same effect in a s. 745 hearing. Standing alone the deficiencies in the presiding judge's instructions on the burden of proof and his review of the psychiatric evidence were not sufficiently serious to justify a re‑hearing. Neither were the inappropriate comments made by Crown counsel sufficient in their cumulative effect to require a new hearing. The presiding judge correctly refused to admit victim impact statements.
Evidence is admissible only if it is relevant and not subject to exclusion under any other clear rule of law or policy. The trier of law retains a discretion to exclude relevant and admissible evidence if its prejudicial effect exceeds its probative value, such that its admission would impact on the fairness of the trial.
Several of the comments made by Crown counsel which are now attacked as inflammatory, were relevant and substantially probative to the issues in the case. The Crown's comments about the appellant's prison related to appellant's conduct in the institutional setting. The comments respecting infamous cases of recidivism by paroled offenders were relevant to an assessment of the accuracy of evidence of members of the correctional community and of the Parole Board's decision‑making processes. The presiding judge had no duty to exclude this evidence. His failure to do so had no effect on the fairness of the hearing.
In determining whether the accused had a fair hearing in a parole eligibility application, the whole of the proceedings rather than individual aspects of evidence or incidents must be reviewed. A discretionary decision may still provide a fair hearing even though some of the evidence relied upon was arguably unfair or of little relevance. This Court in reviewing a s. 745 decision must consider the cumulative effect of the impugned evidence on the fairness of the proceedings.
Defence counsel raised no objection at the hearing to the Crown's inflammatory language. This failure to object is particularly significant as counsel were present throughout and were competent to judge whether the impugned remarks, limited in number and spread through a voluminous record, had any prejudicial effect. The silence of counsel demonstrates the language complained of did not have a cumulative prejudicial effect on the fairness of the hearing.
The presiding judge erred in ruling that victim impact statements are at all times inadmissible at a s. 745 hearing. Evidence of the impact of a crime on the victim clearly has no relevance to a jury's assessment of an applicant's conduct while in custody or of his character under s. 745(2) . Any relevance of the impact on the victim to the nature of the offence will usually have been exhausted at the applicant's initial sentencing hearing. The victim's suffering in the years since the crime was committed does nothing to alter the nature of the offence and should not automatically be admitted into evidence for this purpose. Victim impact statements might be received, however, because the judge presiding at a s. 745 parole eligibility hearing can permit the jury to hear evidence of other matters he or she deems relevant in the circumstances. Whether a judge chooses to exercise the discretion to admit victim impact statements will depend on the circumstances of the particular case. A judge should be cautious in admitting such statements, for to focus the jury on the victim some 15 years after the crime was committed is to invite the jury to assess the appropriateness of the applicant's sentence in terms of its retribution, denunciation and punishment goals.
Given the current legislative debate over the issue, this Court cannot appropriately adopt a blanket rule that would make victim impact statements always admissible at s. 745 hearings.
Cases Cited
By Lamer C.J.
Referred to: R. v. Swietlinski (1978), 44 C.C.C. (2d) 267, aff'd [1980] 2 S.C.R. 956; R. v. Vaillancourt (1989), 49 C.C.C. (3d) 544, aff'd [1990] 1 S.C.R. xii, 76 C.C.C. (3d) 384 (S.C.C.); R. v. M. (S.H.), [1989] 2 S.C.R. 446; Boucher v. The Queen, [1955] S.C.R. 16; R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Finta, [1994] 1 S.C.R. 701; Vallières v. The Queen (1969), 9 C.R.N.S. 24; R. v. Potvin, [1989] 1 S.C.R. 525; R. v. L. (D.O.), [1993] 4 S.C.R. 419; R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Landry (1981), 61 C.C.C. (2d) 317.
By Major J. (dissenting)
R. v. Nichols (1992), 71 C.C.C. (3d) 385; R. v. Vaillancourt (1988), 43 C.C.C. (3d) 238; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Potvin, [1989] 1 S.C.R. 525; R. v. L. (D.O.), [1993] 4 S.C.R. 419; Imrich v. The Queen, [1978] 1 S.C.R. 622; Lewis v. The Queen, [1979] 2 S.C.R. 821; R. v. Lomage (1991), 2 O.R. (3d) 621.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 11 .
Corrections and Conditional Release Act, S.C. 1992, c. 20 .
Criminal Code, R.S.C., 1985, c. C‑46, ss. 735(1.1) , (1.2) , (1.3) , (1.4) [ad. by R.S.C., 1985, c. 23 (4th Supp.), s. 7], 744, 745(1)(a), (b), (2), (3), (4)(a), (b).
Ontario Rules of Practice Respecting Reduction in the Number of Years of Imprisonment Without Eligibility for Parole, SOR/88‑582, s. 10.
Supreme Court Act, R.S.C., 1985, c. S‑26, s. 40 [am. by R.S.C., 1985, c. 34 (3rd Supp.), s. 3].
Authors Cited
Canada. Parliament. House of Commons. Bill C‑41, An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, 1st Sess., 35th Parl., 1994 (1st reading June 13, 1994), s. 745.6(2)(d), (3).
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada. Toronto: Butterworths, 1992.
APPEAL from a judgment of the Ontario Court (General Division) (O'Driscoll J. sitting with jury) (1992), 73 C.C.C. (3d) 376, dismissing an application for judicial review of parole eligibility. Appeal allowed, La Forest, L'Heureux‑Dubé, Iacobucci and Major JJ. dissenting.
Mark J. Sandler and Sandra G. Leonard, for the appellant.
Gary T. Trotter, for the respondent.
//Lamer C.J.//
The judgment of Lamer C.J. and Gonthier and Cory JJ. was delivered by
Lamer C.J. -- This case provides an opportunity for this Court to consider for the first time the interpretation of s. 745 of the Criminal Code, R.S.C., 1985, c. C-46 , which authorizes a reduction of the period during which persons convicted of murder are ineligible for parole.
I.Facts
The appellant Roman Swietlinski was convicted of first‑degree murder. His conviction was upheld by the Ontario Court of Appeal (1978), 44 C.C.C. (2d) 267, and by this Court, [1980] 2 S.C.R. 956. Since the earlier judgment of this Court sets out the facts in detail, I will only give a brief description of the murder. On the night of September 18 to 19, 1976 the appellant met the victim, Mary Frances McKenna, in a bar in Toronto. Apparently the pair left the bar about midnight on their way to the victim's apartment. The attack which followed was one of unspeakable brutality. The appellant stabbed the victim 132 times using five different knives. The force used was such that some of the knives were broken at the time the police located them.
In the course of the first two years of his sentence the appellant committed various disciplinary offences connected with smuggling and an attempted escape. Apparently when he was placed in punitive segregation for the latter offence he underwent a complete change of heart and became a "model prisoner". In 1983 he was transferred to a medium security institution and then in 1990 to a minimum security institution. During his confinement in these various penal institutions the appellant became involved in various charitable or religious groups. He participated in work programs in the institutions. Since 1988 he has received several permits for escorted temporary absences. At various times he took part in Alcoholics Anonymous activities. He also participated in some training sessions and requested the assistance of a psychologist.
II.Applicable legislation
Criminal Code, R.S.C., 1985, c. C‑46 :
745. (1) Where a person has served at least fifteen years of his sentence
(a) in the case of a person who has been convicted of high treason or first degree murder, or
(b) in the case of a person convicted of second degree murder who has been sentenced to imprisonment for life without eligibility for parole until he has served more than fifteen years of his sentence,
he may apply to the appropriate Chief Justice in the province in which the conviction took place for a reduction in his number of years of imprisonment without eligibility for parole.
(2) On receipt of an application under subsection (1), the appropriate Chief Justice shall designate a judge of the superior court of criminal jurisdiction to empanel a jury to hear the application and determine whether the applicant's number of years of imprisonment without eligibility for parole ought to be reduced having regard to the character of the applicant, his conduct while serving his sentence, the nature of the offence for which he was convicted and such other matters as the judge deems relevant in the circumstances and the determination shall be made by not less than two‑thirds of the jury.
(3) Where the jury hearing an application under subsection (1) determines that the applicant's number of years of imprisonment without eligibility for parole ought not to be reduced, the jury shall set another time at or after which an application may again be made by the applicant to the appropriate Chief Justice for a reduction in his number of years of imprisonment without eligibility for parole.
(4) Where the jury hearing an application under subsection (1) determines that the applicant's number of years of imprisonment without eligibility for parole ought to be reduced, the jury may, by order,
(a) substitute a lesser number of years of imprisonment without eligibility for parole than that then applicable; or
(b) terminate the ineligibility for parole.
III.Judgment of the Ontario Court (General Division)
(1992), 73 C.C.C. (3d) 376
O'Driscoll J. of the Ontario Court (General Division) was designated for empanelling a jury and hearing the case.
At the preliminary hearing provided for in s. 10 of the Ontario Rules of Practice Respecting Reduction in the Number of Years of Imprisonment Without Eligibility for Parole, SOR/88‑582, in effect at that time, O'Driscoll J. held that statements by members of the victim's family were not admissible as evidence. He based his decision on R. v. Vaillancourt (1989), 49 C.C.C. (3d) 544, in which the Ontario Court of Appeal held that a s. 745 hearing did not form part of the sentencing process. Since s. 735(1.1) of the Code made such statements admissible in order only to facilitate the determination of the sentence, they should be excluded from a s. 745 hearing. Further, O'Driscoll J. considered that the statements disclosed no information relevant to the assessment of the factors listed in s. 745(2) .
The hearing itself was subsequently held and the jury refused to reduce the period of the appellant's ineligibility for parole. Further, it set November 6, 2001 as the date on which the appellant could again make a similar application. Since that date corresponds to the time when the appellant will have served 25 years of his sentence, the jury's decision amounts to prohibiting the appellant from filing another application under s. 745 .
The appellant sought and obtained leave to appeal directly to this Court. Section 40 of the Supreme Court Act, R.S.C., 1985, c. S‑26 , authorizes a direct appeal since the Code makes no provision for any other avenue of appeal: R. v. Vaillancourt, [1990] 1 S.C.R. xii, 76 C.C.C. (3d) 384.
IV.Issues
The appellant raised the following grounds of appeal, most of which relate to the judge's charge to the jury:
(1)the judge should not have limited consideration of the appellant's character to his character at the time of the murder: he should also have mentioned the appellant's present character;
(2)the judge should not have referred to the three factors mentioned in s. 745(2) as three independent factors, each to be proved on a balance of probabilities;
(3)the judge should have reread all of the agreed statement of facts: he should not have omitted the second part, relating to "extenuating circumstances";
(4)the judge did not make a fair summation of the psychiatric evidence;
(5)in questioning certain witnesses and in his address to the jury, counsel for the Crown introduced inflammatory and highly prejudicial matters.
I feel that the fifth ground provides a sufficient basis for allowing this appeal. Furthermore, the first, second and fourth grounds raise legitimate concerns which only aggravate the inequity resulting from the Crown counsel's inflammatory remarks.
Additionally, since I believe that a new hearing should be ordered, I will deal with the question of the admissibility of statements by the victim's family.
V.Analysis
A.General Observations on Section 745
Section 745 of the Code was adopted in 1976 in connection with the abolition of the death penalty. The compromise arrived at between the supporters and opponents of the death penalty was its replacement by long‑term imprisonment without parole. Accordingly, in the case of first‑degree murder the penalty is life imprisonment with no eligibility for parole for 25 years. In the case of second‑degree murder, this time period is 10 years, but it may be extended to 25 years by the trial judge on the jury's recommendation. In both cases, however, Parliament provided that after 15 years a jury could be empanelled to reassess the period of ineligibility.
Section 745 put in place a procedure that is original in several respects. However, we need not consider all its aspects in order to deal with the case at bar. What is important is to understand that the procedure is one for reassessing long‑term imprisonment imposed by law (in the case of first‑degree murder) or by a judge (in the case of second‑degree murder). The purpose of a reassessment procedure, especially when it takes place 15 years after the initial decision, is necessarily to re‑examine a decision in light of new information or factors which could not have been known initially. It follows that the primary purpose of a s. 745 hearing is to call attention to changes which have occurred in the applicant's situation and which might justify imposing a less harsh penalty upon the applicant. Accordingly, the jury's decision is not essentially different from the ordinary decision regarding length of a sentence. It is similar to that taken by a judge pursuant to s. 744 of the Code as to the period of ineligibility in cases of second‑degree murder.
It should also be noted, in the context of an appeal to this Court, that s. 745 gives the jury a broad discretionary power. This is quite different from a trial, at which the jury must choose between two options, guilt or innocence, based on very specific rules of law. Moreover, the discretionary nature of the jury's decision is made quite clear by the fact that Parliament did not see fit to grant any right of appeal to the Court of Appeal, although as I mentioned earlier that does not prevent an appeal to this Court with leave. Consequently, there is no need to analyze the judge's charge to the jury in the detail that would be appropriate in the case of a trial. This Court's function is essentially to determine whether the appellant was given a fair hearing at trial.
The discretionary nature of the decision also compels the jury to adopt a different analytical approach from that used in a trial. At a trial the jury must decide whether it has been proven beyond all reasonable doubt that the accused committed the crime with which he or she is charged. In such a proceeding the offence is generally defined by a number of elements which must all be proven for the accused to be convicted. Each element of the offence is thus a necessary condition for a conviction. At a s. 745 hearing, on the other hand, the jury does not determine whether the applicant is guilty: another jury (or, in some cases, a judge) has already performed that task. Its duty rather is to make a discretionary decision as to the minimum length of the sentence that the applicant must serve. The concept of an element of an offence cannot be transposed onto a discretionary decision. When a person makes such a decision he or she does not apply rigid logic, requiring for example that if conditions A, B and C are met, then decision X must be the result. When legislation lists various factors that a decision‑maker must take into consideration a finding reached upon one or all of the factors does not necessarily mandate a conclusion leading to a specific decision. They are instead factors some of which may work in favour of the applicant and some against him, and which must be assessed and weighed as a whole in arriving at a conclusion. This is quite different from a trial where very strong evidence of one aspect of an offence cannot offset the weakness of evidence of another aspect.
Accordingly, the concepts of burden of proof, proof on a balance of probabilities, or proof beyond a reasonable doubt are of very limited value in a hearing pursuant to s. 745 , where the decision lies exclusively in the discretion of the jury. The jury must instead make what it, in its discretion, deems to be the best decision on the evidence. (On this point see also R. v. M. (S.H.), [1989] 2 S.C.R. 446, at p. 464.)
B.Grounds of Appeal
1.Inappropriate Language by Counsel for the Crown
The appellant objected to certain irrelevant and prejudicial language used by counsel for the Crown. Before considering the disputed remarks in detail, it should be recalled that the function of counsel for the Crown in a s. 745 hearing is no different from the function in a criminal trial. Taschereau J. described his function as follows in Boucher v. The Queen, [1955] S.C.R. 16, at p. 21:
[translation] The position held by counsel for the Crown is not that of a lawyer in civil litigation. His functions are quasi‑judicial. His duty is not so much to obtain a conviction as to assist the judge and the jury in ensuring that the fullest possible justice is done. His conduct before the Court must always be characterized by moderation and impartiality. He will have properly performed his duty and will be beyond all reproach if, eschewing any appeal to passion, and employing a dignified manner suited to his function, he presents the evidence to the jury without going beyond what it discloses.
The first category of unacceptable language had the effect of discrediting the process of reviewing ineligibility established by s. 745 . Counsel for the Crown sought, in some measure, to present the procedure as fundamentally inequitable, first, because the victim had no opportunity, as the applicant did, to have her suffering reduced, and second, because the 25 years ineligibility period was a bargain compared with the death penalty imposed prior to 1976 and further reducing this period of time would be an additional concession to the accused.
For example, counsel began his opening statement with the following passage:
Ladies and gentlemen of the jury, in 1976 in this country, our government abolished capital punishment. Mr. Swietlinski was convicted of the worst crime known to our criminal justice system. You will hear shortly about the facts of this offence. In 1976, the same year, Mary Frances McKenna, someone that you won't hear very much about in this proceeding ‑‑ this is an application brought by Mr. Swietlinski ‑‑ but you won't hear much about a person by the name of Mary Frances McKenna, who was 37 years of age at the time.
He went on to add:
. . . please don't forget the victim in this case, Mary Frances McKenna. She doesn't have a chance to come before a group of people to ask for a second chance.
He concluded his opening statement by reminding the jurors that
. . . Mr. Swietlinski, a few years earlier, would have been sentenced to death for this offence. . . .
In his final submission to the jury he returned to the same themes:
Mary Frances McKenna doesn't get a chance to come before a jury and ask to have her parole eligibility reduced. Mary Frances McKenna is gone.
. . .
If we wanted revenge, we would have capital punishment. As I say, we don't. We have a compromise. It's a mandatory sentence, life with no eligibility for parole for 25 years, and that's the sentence that our society imposes for the taking of a human life in the manner that Mr. Swietlinski took it. To do otherwise, as Mr. Swietlinski suggested to you about the rules at Millhaven, would be anarchy.
Counsel also sought, in questioning certain witnesses, to draw attention to the fact that the victim could not obtain the second chance the appellant was seeking and to the fact that no assistance programs were available to the victim's family whereas the penitentiary system offered the appellant a vast range of services.
Counsel further sought to discredit the parole process in the following language:
Normally, issues of parole, parole hearings, are held by, basically, a faceless group of people. They're held in secret, in private, and really all that The Parole Board hears from is the applicant and perhaps his counsel and the kind of people that you're about to hear from, the various corrections people.
Finally, in questioning certain witnesses counsel insinuated that the Beaver Creek Institution, where the appellant had spent the last two years, was too comfortable to be called a prison and that in fact some visitors confused the institution with a neighbouring campground. In his final submission he suggested that the transfer to this institution was sufficient reward for the appellant's good conduct during his sentence.
The combined effect of these remarks was to imply that the s. 745 hearing was a proceeding unduly favourable to the applicant, even a subversion of Parliament's intent to impose a definite 25-year penalty on first‑degree murderers. The conclusion that emerged from these observations, and it was not a difficult one to draw, was that the jury should deal more severely with the appellant.
Nevertheless, s. 745 is as much a part of the Code as the provisions providing for no parole for 25 years in cases of first‑degree murder. The possible reduction of the ineligibility period after 15 years is a choice made by Parliament which the jury must accept. Clearly, the prosecution may not call this choice into question by suggesting to the jury that it is an abnormal procedure, excessively indulgent and contrary to what it argues was Parliament's intent. That amounts to urging the jurors not to make a decision in accordance with the law if they feel that it is bad law. It is clearly unacceptable for a lawyer to make such an observation to the jury: R. v. Morgentaler, [1988] 1 S.C.R. 30, at pp. 76‑79; R. v. Finta, [1994] 1 S.C.R. 701.
In the same way, counsel may not constantly repeat that imprisonment for 25 years is a substitute for the death penalty. That is an invitation to offset the alleged excessive clemency of Parliament by a severity not justified by the wording of s. 745. The jury does not have to decide whether the penalties imposed by Parliament are too severe or not severe enough. It must simply apply the Code. The Code no longer contains the death penalty: on the contrary, s. 745 gives the appellant the right to seek a reduction in his ineligibility period. No one can be permitted to undermine the fairness of the proceeding in which the appellant may obtain such a reduction by constant references to the death penalty.
Additionally, counsel for the Crown sought to draw the jury's attention to other cases of murderers who had used their parole to commit other murders. Thus, in questioning Antonio Jean, a psychologist employed by Correctional Service Canada, counsel put the following questions:
Q. You also mentioned, during the course of your evidence this morning, you made mention of the Rygrock Inquest. That was an inquest in Ottawa?
A. Yes, ma'am.
Q. And that, in fact, was an inquest involving an inmate who had been released to a half‑way house and had subsequently murdered an employee of that half‑way house?
A. Yes, ma'am.
Q. Okay. And, presumably, out of that inquest, [Corrections] Canada had reasons to look at some of its procedures, correct, in terms of the releasing of people? I'm not asking the details, but obviously they would review the procedures.
A. Very definitely.
Q. Okay. And, in fact, after that inquest and after that review was done, another inmate was released to a half‑way house here in Toronto, Melvin Stanton. You're aware of him, aren't you?
A. Yes, ma'am.
Q. Okay. And, in fact, what followed from that was the murder, within a few hours of his release, of Tema Conter, correct?
A. Correct.
Q. So it seems that Corrections Canada does make mistakes, fair enough?
A. Your conclusion, ma'am.
Q. Could you agree with me, given those two inquests?
A. Do I have to?
Q. I'm just asking you to answer the question.
A. I suppose, like any other organization ‑‑ I'm afraid to say what I have to say because it might be taken wrongly. Maybe the judicial system makes some mistakes too at times. It's human error.
Counsel broached the same subject in the examination of Allan Partington, a Correctional Service officer.
Similarly, in his opening statement he invited the jury to take into consideration cases of violence other than those of the appellant:
We read the papers. We open the headlines today and we see concerns about violence in our society, and, in particular, we hear concerns about violence against women. I want you, when you listen to that evidence, to bear in mind that you are here representing the best interests of this community as it pertains not only to Mr. Swietlinski but the broader issues that an application, such as this, brings to bear.
In his final submission he added the following:
Violence is, unfortunately, increasing in our community. Every time you turn on the news, read the headlines you hear either reports of or people worried about the issue of violence and, in particular, violence against women.
. . .
A lot of times people come into contact or read in the paper and hear, read or see on T.V. something that shocks them, and the facts of this case no doubt shocked you. Well, they have concerns about things going on in our society, and they think to themselves, "Someone should do something about that," and always the someone is someone off in the distance. For the purpose of this case, . . . you are the they. Consider that when you retire to reach your determination.
It is completely improper to invite the jury to consider isolated cases in which prisoners committed murder after being paroled. Even though the rules applicable in the s. 745 hearing are not as strict as in a criminal trial, the fact remains that the jury must consider only the applicant's case. Although the temptation may sometimes be very strong, the jury must not try the cases of other inmates or determine whether the existing system of parole is doing its job. The appellant should not be punished for the weaknesses of the system.
Furthermore, the other observations I have just referred to may have suggested to the jury that its function was in some way to solve the problem of violence in society. It is true that deterrence is one of the functions of the penalty and that it is therefore legitimate for the jury to take this factor into account when hearing an application under s. 745. However, the approach taken by counsel for the Crown was unacceptable. The jury cannot simply be referred to headlines in newspapers, which generally concern themselves with the worst crimes. Such a course could produce a disproportionate reaction in the jury by making it believe it could solve the problem of crime at one stroke and by giving the appellant's case the odour of a general threat. Such a tactic smacks of the in terrorem arguments disapproved by the Quebec Court of Appeal in Vallières v. The Queen (1969), 9 C.R.N.S. 24. In my view, it is possible to invite the jury to take the deterrent aspect of the penalty into account, but this should be done in the context of a general submission on the various functions performed by the penalty.
In a trial by jury it is usual for the judge to indicate to the jurors that they must base their decision solely on the evidence and that they should not read the newspapers while the trial is in progress. Sometimes drastic methods such as sequestering the jury or banning publication may be used to keep the jury free from undue influence by the media. That being the case, it is astonishing that counsel for the Crown could have invited the jury to do precisely