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| 235. (1) Punishment for murder - Every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life. | ||
| (2) Minimum punishment - For the purposes of Part XXIII, the sentence of imprisonment for life prescribed by this section is a minimum punishment. | ||
| R.S., c. C-34, s. 218; 1973-74, c. 38, s. 3; 1974-75-76, c. 105, s. 5. | ||
| Judicial Consideration - | ||
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R v Logan and Dunbar
- Unreported, April 20, 1988, Nos. 363/83 and 750/83 (Ont CA)
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| - This was an application to re-open an appeal against sentence where some years before, the court had reduced from 25 years to 20 years the period of imprisonment that the appellants would have to serve before being eligible for parole. The trial judge had imposed a mandatory sentence of life imprisonment without eligibility for parole for 25 years which was the law in effect at the time of trial and conviction. The Court of Appeal had allowed an appeal against sentence (see R v Dunbar and Logan (1982) 68 CCC (2d) 13 (Ont CA)) and held that having regard to the provision of s11(i) of the Charter and the fact that a new trial had taken place after the Charter was proclaimed in force and the fact that a lesser punishment was provided for in the Criminal Code at the time of the commission of the offences than was provided for at the time of sentence, that the appellants were entitled to the benefit of the "lesser punishment" in effect at the time of the commission of the offence. The minimum period of ineligibility for parole at the time of the commission of the offence was ten years, subject to increase to "a number of years that is not more than 20 but more than 10", in accordance with the criteria and procedure provided for in s218 of the Criminal Code. However, during the course of argument in that sentence appeal, reference was made to the term of 20 years as a "minimum" or "fixed period". Consequently, this application to re-open the sentence appeals because the minimum was, in fact, ten years. | ||
| The court reviewed all the circumstances, including evidence of the character of the appellants at the time of the hearing of the appeal in 1988 and did not limit itself to those facts that existed in relation to the character of the appellants in 1976 when the murders were committed or at the time of their first trial or second trial in 1983. Considerable material was put before the court as to the appellant's conduct in prison showing important strides towards self-improvement and rehabilitation. The court agreed that this more recent material was relevant. Nevertheless, taking into account, in particular, the circumstances of the murders, the court felt that the maximum period permitted by s218 of the Code would have to be served before eligibility for parole and the evidence showing strides towards self-improvement and rehabilitation, while important, were not factors of such weight that would justify any conclusion other than that of the imposition of the maximum punishment. Consequently, the appeals were dismissed and the sentences affirmed. | ||
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