| Recommendation
#2: |
Abandon the parole ineligibility rules for murder.
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| Recommendation
#3: |
Permit extension of the period of parole ineligibility
for murder only upon a clear burden of proof, where a jury so recommends to a
judge, and where reasons are provided in writing for the decision.
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| Recommendation
#4: |
Make appellate review of parole ineligibility decisions
and judicial review of parole decisions available automatically in the case of
alleged Charter violations.
|
C. Initiate Research and
Consultation
CAEFS’ response to the document, Reforming Criminal Code
Defences, is constrained by two important gaps that must be addressed by the
Department of Justice prior to further commitment to a specific law reform
platform.
First, there is a dearth of research and analysis of the actual
implementation of the law of self-defence, defence of property, and
provocation. While it is true that we have ample access to the reported cases
in which these defences have been raised, we also know that these represent
only the tip of the iceberg and, in some cases, may well distort the actual
practices. We do not know, for example, how many men and women are charged by
police with manslaughter instead of murder in connection with the deaths of
intimate partners on the basis of evidence of self-defence or provocation. We
do not know the frequency with which police decide not to charge at all in the
case of owners who kill to protect property. We do not know the significance of
the defence of property in the context of disputes over land claims by
Aboriginal peoples. We do not know the statistics on pleas to manslaughter in
reliance on these potential defences. We do not know the numbers of acquittals
and convictions when these defences are advanced at trial. And, we do not know
the impact on acquittals and convictions of different forms of evidence,
argument, and instructions to the jury.
For example, many in the legal community had assumed that after
the decision of the Supreme Court of Canada in the Lavallee (1990) case,
the law of self-defence would no longer pose hurdles for battered women who
kill, particularly since no problems seemed to be evident in reported case law.
In fact, it has been confirmed by several investigators that many of the
barriers are embedded in charging and prosecutorial practices and that there is
a need for legal change to address these. The Department of Justice ought to
itself undertake or fund empirical research that examines the questions set out
above before promoting law reform in a social science and policy vacuum and
thereby stifling a further round of reforms.
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