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The Chief Justice of the Ontario Court, pursuant to subsection 745(5) of the Criminal Code, hereby revokes the Ontario Rules of Practice Respecting Reduction in the Number of Years of Imprisonment Without Eligibility for Parole
and makes the annexed Ontario Rules of Practice respecting reduction in the number of years of imprisonment without eligibility for parole, in substitution therefore.
Dated at Toronto, Ontario, May 11, 1992
| Judicial Consideration - | |||
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R v Vaillancourt - (1988) 43 CCC (3d) 238 (Ont HC)
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| - After serving 15 years of a life sentence Vaillancourt applied for a reduction in the number of years of imprisonment that he must serve before eligibility for parole. Counsel for Vaillancourt sought rulings on the constitutional validity of Rules 6(2), 14, and 16(2) of the Rules of Practice promulgated pursuant to s672(5) (now s745(5)) of the Code by the Chief Justice of the Ontario High Court of Justice. | |||
| Rule 6(2) provides that at a preliminary hearing both parties are required to inform the judge of the evidence they intend to adduce; Rule 14 provides that the applicant will lead his evidence first; and Rule 16(2) provides that the applicant will address the jury first. | |||
| The applicant claimed that to the extent the Rules place a persuasive burden of proof on the applicant they are ultra vires s672(5) of the Code. It was also argued that the Rules are contrary to the principles of fundamental justice to the extent they require the applicant to define issues in controversy, adduce evidence, and address the jury before the Attorney-General on the application for review. | |||
| The court summarized the applicant's submission as follows: | |||
| "The main thrust of the applicant's submission is that a review proceeding pursuant to s672(2) of the Code is an aspect of the sentencing process which places the applicant's blameworthiness in issue. Therefore, the applicant argues that, in accordance with the fundamental principles of the criminal law and the fundamental principles of justice, the onus of proof beyond a reasonable doubt must rest with the Attorney-General in that proceeding." | |||
| In dismissing the application Callaghan, JA said that a review under s672 "is a process distinct and apart from the sentencing process that took place at the conclusion of the trial" (p247). Such a review is not part of the sentencing process nor is blameworthiness determined during the course of the review. | |||
| Section 11 of the Charter was held not to apply as that section only applies to persons "charged with an offence." A s672 review is initiated long after a person has been sentenced, therefore, the protections of s11 are not applicable. Section 11 (d) was also interpreted to apply only to proceedings where the guilt or innocence of a person charged with an offence is to be determined, and did not apply here as the court said that a s672 review does not determine blameworthiness or guilt. | |||
| Placing the persuasive onus on the applicant in a s672 application does not violate s11 of the Charter as the applicant has the option of deciding whether to start the application and it is the applicant that is seeking to set aside an otherwise valid judicial order. | |||
| With regard to s7 of the Charter the court said that a s672 application does not involve a deprivation of liberty within the meaning of s7 as the applicant had already been denied his liberty upon being sentenced. | |||
| Where there is a deprivation of liberty the court added that the Rules do not violate the "principles of fundamental justice." Vaillancourt was made aware of the allegations against him and had an opportunity to respond. | |||
| Sections 7 and 11 of the Charter are: | |||
| "...designed to protect the fundamental liberty and human dignity of any and every person accused by the state of criminal conduct...[I]n an application under s672 of the Code, the applicant is no longer accused of criminal conduct but has been convicted, and his guilt or innocence is no longer in issue. Consequently, the purpose of the principles embodied in the presumption of innocence and the right to remain silent is not applicable" (p250). | |||
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