Provision that keeps Canada's killers in prison for life likely to be challenged
The provision, based on a 'U.S. model', allows a judge to order a multiple murderer (like Douglas Garland, or Derek Saretzky) to serve consecutive periods of parole ineligibility, keeping them in jail for the rest of their lives.
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CALGARY — Legal experts say a sentencing provision that can keep killers in prison for the rest of their lives is likely to make its way to the Supreme Court of Canada.
The federal government enacted legislation in 2011 that allows a judge to order a multiple murderer to serve consecutive periods of parole ineligibility for each offence.
It has only been applied on six occasions.
The most recent was in the case of Derek Saretzky, who was sentenced in August for the first-degree murders of a man and his two-year-old daughter as well as a senior in southwestern Alberta.
Saretzky received the mandatory sentence of life in prison. But instead of the usual 25 years before parole eligibility, the judge ordered that Saretzky spend at least three times that long — 75 years — behind bars before he can apply to get out.
"This case hammers home the stark reality of the law as it is now. If you want to make it consecutive, you've got to make it 75 for three murders," said Calgary defence lawyer Balfour Der, who is challenging Saretzky's conviction and sentence in Alberta's Appeal Court.
"We're talking about a 22-year-old who would end up with ... no parole until he's 97.
"If we look at it that way ... maybe we should give him a break. On the other hand, this is a very serious crime. This is highly emotional because of the circumstances of the deaths and who are the victims."
Der said it's a tricky legal issue.
"One of the grounds of appeal will likely be that the consecutive minimums of 25 years amounts to cruel and unusual punishment and, because of that, the section is unconstitutional."
He suggests a sliding scale for consecutive parole ineligibilities that still recognizes the seriousness of a case.
A University of Calgary law professor said she wouldn't be surprised if the case shows up in Canada's top court.
"I don't know how or in what manner the court would deal with it, but I would suspect it will happen," said Lisa Silver.
She said she can understand the argument since it's a relatively recent provision in the Criminal Code.
"It does mean that someone is spending an amount in custody that was unheard of in the past," Silver said. "It is something that the Supreme Court of Canada needs to look at and needs to determine once and for all. Is this constitutional?"
Veteran Calgary defence lawyer Alain Hepner expects the provision will get a second look by the federal government.
"That's the U.S. model," he said. "It's not too extreme from a public perception, but ... the case law and the judges say we're not here to pander to the public opinion. We have to apply the law.
"A lot of these people may never see the light of day and the public may want that. There's got to be other ways of doing it."
Alberta's justice minister said consecutive parole ineligibilities can be a "useful tool" as a signal to criminals that multiple crimes may lead to a longer sentence.
"It can potentially have a beneficial effect in terms of signalling to people who are doing these things that it's not a good idea," Kathleen Ganley said.
"It can have a sort of deterrent effect. That being said, obviously it's only intended to be used in certain circumstances."
The six Canadians serving consecutive periods of parole ineligibility
Here's a look at the six individuals who have been sentenced to extended parole ineligibility under the seven-year-old law.
Derek Saretzky was sentenced in August to life in prison with no chance of parole for 75 years after being convicted in the 2015 first-degree murders of two-year-old Hailey Dunbar-Blanchette, her father Terry Blanchette and senior Hanne Meketech in southwestern Alberta. Saretzky will have to live to age 97 before he is eligible to apply for his freedom. His lawyer is appealing the conviction and the sentence.
Douglas Garland was sentenced in February to life in prison without parole for 75 years for killing Alvin and Kathy Liknes and their five-year-old grandson Nathan O'Brien in 2014. Court heard how Garland attacked the three victims in their home, then took them to his farm near Calgary, where he killed and dismembered them and burned their remains. He would be 129 before he could apply for parole. He is appealing his conviction and sentence.
John Paul Ostamas was a homeless man in April 2015 when he brutally beat three other transient men to death in separate attacks in Winnipeg. He pleaded guilty to three counts of second-degree murder and in June 2016 was sent to prison for life with no chance of parole for 75 years, meaning he would have to live until 115 in order to apply.
A jury convicted Christopher Husbands of second-degree murder for gunning down two men in a crowded food court in Toronto's Eaton Centre in June 2012. He was sentenced in April 2016 to life in prison with no parole eligibility for 30 years, so he would have been 53 before he could apply. But the Ontario Court of Appeal has ruled the jury in the original trial was not properly selected and has ordered a new trial.
Mountie killer Justin Bourque was ordered by a judge in Moncton, N.B., in October 2014 to serve at least 75 years of his life sentence before being able to request parole. Bourque shot and killed three RCMP officers and wounded two others in June 2014. He pleaded guilty to three counts of first-degree murder and two counts of attempted murder. He is eligible for parole at age 99.
In September 2013, a judge in Edmonton sentenced armoured car guard Travis Baumgartner to life in prison with no chance at parole for 40 years. Baumgartner killed three of his colleagues during an ATM robbery in a mall at the University of Alberta in June 2012. A fourth guard was badly hurt but survived. Baumgartner pleaded guilty to one count of first-degree murder, two counts of second-degree murder and attempted murder. He is eligible for parole at age 61.