Viewpoint 42-4: Understanding Parole: Paul Bernardo Eligible for Full Parole in February 2018 - LawNow Magazine

Viewpoint 42-4: Understanding Parole: Paul Bernardo Eligible for Full Parole in February 2018

Viewpoint column logoFebruary 2018 marks 25 years since the arrest of Paul Bernardo for the rapes and murders of two young women in Ontario.  Following one of the longest and most highly publicized criminal trials in Canadian history, he was convicted of two counts of first degree murder and given the automatic and mandatory sentence required by Canadian law: life imprisonment without eligibility for parole for 25 years.  Now that 25 years have passed, Bernardo is eligible to appear before the Parole Board of Canada and seek its permission to leave the correctional institution where he is housed in order to begin reintegration back into Canadian society.

It seems unlikely that Bernardo will exercise this option, and even more unlikely that he will succeed (among other things, he was also responsible for a startling number of other sexual assaults, as well as the death of the sister of his wife and fellow killer Karla Holmoka). However, we can expect that this anniversary may lead to public discussion and controversy about the idea of possible release and return of someone who has committed such terrible crimes to live among the rest of us, in a community somewhere in this country.

It is relatively rare in Canada that someone who is sentenced to imprisonment will actually be in custody for the full length of their sentence. Victims and their supporters (including some vocal political allies) often complain about this and argue for harsher and longer punishments.

For a person convicted of murder, however, the sentence is, literally, “for life”: the sentence will continue for the rest of the convicted person’s life. If they are granted parole and allowed to re-enter the community, it will always be under supervision.However, our system seeks to combine punishment for wrongdoing with correction and rehabilitation in an effort to ensure the individual does not misbehave again in the future.  As a result, various forms of early release privileges have long been an essential part of our penal/correctional system.  Most offenders who receive fixed term of imprisonment (that is, something less than a life sentence) will be released around the time when they have served two-thirds of the total sentence length.  Some offenders are granted parole even earlier than the two-thirds point (where they have been able to demonstrate the risk they will reoffend is very low, and there is no longer a legitimate penal purpose to detain them any longer).  At the same time, it is also possible for an offender to be kept in custody for longer than two-thirds of the sentence – and sometimes right to the very end of the term ordered.  This happens most often when, by their conduct as a prisoner the individual has demonstrated that they continue to pose a significant threat to other persons such that they cannot be safely released into the community.

In the case of adults convicted of murder, the mandatory sentence required by law is life imprisonment.   However, even these prisoners will be eligible to ask for parole someday.  Precisely when depends on the classification of murder as found by the court: for first degree murder, the mandatory waiting period is 25 years, while for second degree murder the parole ineligibility period will be set by the sentencing judge at some point between 10 and 25 years.

All too often the media and the public mistake the parole eligibility date for the length of the sentence; the media frequently incorrectly report on such a sentence as though it ends on the date of parole eligibility (for example, referring to a “25 year sentence” where the individual has actually been ordered to serve 25 years of a life sentence before asking for parole). These dates relate to adults convicted of a single murder. Persons under 18 at the time of the offence will have shorter periods before they can seek release, and persons who are guilty of more than one murder may be ordered to wait even longer than 25 years.

Now that 25 years have passed, Bernardo is eligible to appear before the Parole Board of Canada and seek its permission to leave the correctional institution where he is housed in order to begin reintegration back into Canadian society.

There are two main purposes behind the concept of early release. First, it is hoped that the offer of early release will serve as an incentive to inmates to behave properly, and to take such rehabilitative programming as is offered, while in custody.  Second, because early release is under supervision, and can be revoked, it is considered to be a form of transition for the inmate, to assist them in leaving the custodial setting and becoming used to living in society again. We recognize that such a transitional period of control and supervision actually enhances community safety as it offers the offender a somewhat graduated form of return to “normal” life without the restrictions of custody. To release a prisoner from a jail cell directly into society without any form of supervision, support or control is a recipe for reoffending and more crime.

For offenders serving a fixed-length sentence, they eventually will get to the date when they have served their punishment in full (whether they are still in custody or on a form of early release at the time) and their sentence will expire. For a person convicted of murder, however, the sentence is, literally, “for life”: the sentence will continue for the rest of the convicted person’s life. If they are granted parole and allowed to re-enter the community, it will always be under supervision. The release can be revoked at any time and the individual will then return to prison to continue serving their sentence in custody. It is worth pointing out that in many, if not most, cases convicted murderers end up doing very well on parole compared to other prisoners, with fewer instances of breaking the rules and being returned to prison.

It is relatively rare in Canada that someone who is sentenced to imprisonment will actually be in custody for the full length of their sentence. We grant parole to persons convicted of murder for similar reasons as with all other offenders.  We hope that the offer of release back to society will encourage good behavior and engagement in appropriate rehabilitative programs while serving sentences in custody.  For persons serving life sentences, we also recognize that there usually comes a time when they – and society – no longer require continued incarceration: they have grown older, have taken the programming and have made full use of the other forms of assistance aimed at helping them reduce their risks of reoffending, and generally no longer pose a significant risk to other persons.  At the same time, due to the nature of the offence in question – deliberately taking the life of another person – we recognize that there is an on-going need to supervise and regulate the lives of such persons in order to ensure the continued safety of the public.  Therefore, when release comes it is always upon conditions that the offender will have to obey and follow.  Failure to do so will lead to a return to prison.

Authors:

Charles Davison
Charles Davison is the Senior Criminal Defence Counsel with the Somba K’e office of the Legal Services Board in Yellowknife, NWT.
 


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