COVER

'HE IS ELIGIBLE FOR THIS REVIEW'

NEIL BOYD August 18 1997
COVER

'HE IS ELIGIBLE FOR THIS REVIEW'

NEIL BOYD August 18 1997

'HE IS ELIGIBLE FOR THIS REVIEW'

NEIL BOYD

There is probably not a single Canadian who is pleased that Clifford Olson is receiving a judicial review of his sentence for first-degree murder. Olson is one of the most despicable mass murderers in Canadian history, and the thought that he might secure early release from prison is understandably abhorrent. But there is no legal or principled alternative to allowing this hearing to proceed. When Olson was convicted, he was, like all other first-degree murderers, entitled to apply for a judicial review of his sentence once he had served 15 years in prison. Having now served that time, he is eligible to apply for this Section 745 review.

In hindsight, we might say that the original legislation was flawed—that it ought to have made provision for a judge to disallow a hearing in some cases, or it should have prevented mass murderers from applying for review. In fact, those provisions are now in place, under amendments adopted last January. But some advocates in the Reform party

and elsewhere would go much further. They would have the government enact retroactive legislation to deny Olson the right to a hearing.

If you don’t think much about the significance and consequences of such legislation, that approach may seem appealing. After all, no one would have to worry about any possibility—no matter how remote—of Olson being released. And Olson, a man who warrants little attention from anyone, would be denied yet another opportunity to savor the media’s glare of publicity. There is, however, a more important principle at stake—the rule of law and its long-standing prohibition of retrospective changes in punishment. Imagine a justice system in which a person could be convicted and sentenced, and then at

some point during his incarceration have that sentence increased. This approach flies in the face of a centuries-old legal maxim—nullum crimen sine lege, nulla poena sine lege: no crime without a law, no penalty without a law. The idea that there must be no crime or punishment except in accordance with fixed, predetermined law Í has been generally regard| ed as an obvious principle of justice ever since the g French Revolution.

« The Reformers and oth| ers would have us jettison centuries of legal principle; they seem unconcerned by the precedent it would set. If Olson’s penalty can be changed in midstream, so too can penalties for any Canadians convicted of criminal offences. The man sentenced to serve three months in jail for impaired driving could find that Parliament had lengthened his sentence to three years.

Then-justice minister Allan Rock was right to reject a request earlier this year from the Reform party and the Canadian Police Association to abolish Olson’s right to judicial review. Such legislation would have been challenged, and it is inconceivable that Canadian courts would accept the notion that changes in punishment can be retrospectively applied.

We can hope that the media will spend little time and effort in its coverage of the Olson hearing; no public good can come from such a depressing event. Meanwhile, I will cast my vote of confidence in the common sense of the decision-makers, the 12member jury of Canadians who will determine whether Olson’s date of parole eligibility ought to be changed. I have no doubt whatsoever of the outcome—Olson will return to his cell and we will all go about our daily business, secure in the thought that democracy and the rule of law have prevailed.

Neil Boyd is a professor in the School of Criminology at Simon Fraser University in Burnaby, B. C.