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| John L. Hill |
In May 2023, the Menendez brothers filed a motion detailing new evidence in their case and asking that their sentences be vacated. California’s Penal Code s. 1170(d) allows a court to revoke an incarcerated person’s original sentence and replace it with a lesser punishment — a process known as “resentencing.”
The section was amended in 2018 when Assembly Bill 1812 was passed, allowing courts in a resentencing application to consider factors such as an incarcerated person’s disciplinary record and rehabilitation accomplishments. A court may consider if the incarcerated person’s age, time served and diminished physical condition have reduced the risk to public safety. Most important, in this case, was the presentation of evidence demonstrating that circumstances such as socio-political changes in society’s attitudes have changed since sentencing. New evidence has emerged fortifying the brothers’ allegation of sexual misconduct by their father. Additionally, there is now public awareness that men can be sexually molested and traumatized and no longer held to a standard of “toughness” that diminishes society’s ability to show abhorrence of their treatment.
Is there an equivalent to asking for resentencing for Canadians doing lengthy terms in Canadian prisons? There is, of course, the right to ask for a ministerial review for people who have been wrongly convicted. But what about those serving time for offences where society has evolved into accepting behaviours no longer considered criminal or deserving of harsh treatment?
There is no legislative equivalent of California’s law. We depend on judicial interpretation. One of the first cases to explore a situation where a value change was evident was in R. v. Milne, [1987] 2 S.C.R. 512. George Harvey Milne was convicted of gross indecency under s. 157 of the Criminal Code, found to be a dangerous offender and sentenced to indeterminate detention. Gross indecency was later deleted from the definition of “serious personal injury offence” with the result that conviction under that offence no longer permitted the making of a dangerous offender application under Part XXI of the Code. The majority of the Supreme Court held a change in the law that deleted the offence for which Milne was deemed a dangerous offender. Yet he remained a dangerous offender. It was held that the detention of a “dangerous offender” is not reviewable by writ of habeas corpus or under ss. 9 or 12 of the Charter, even if the offender ceases to have the characteristics of dangerousness that formed the basis for his indeterminate detention.
However, more lenient treatment was given to Janise Marie Gamble. Her accomplice, in March 1976, killed a police officer while they were in flight from a robbery (R. v. Gamble, [1988] 2 SCR 595).
If Gamble had been found guilty of murder punishable by life imprisonment, as opposed to murder punishable by death, under the law in force before July 26, 1976, she would have been ineligible for parole for not more than 20 years but also for not less than 10. In 1986, after 10 years of imprisonment in Kingston’s Prison for Women, Gamble applied to the Supreme Court of Ontario for relief through a writ of habeas corpus and under s. 24(1)of the Charter. She maintained the 25-year parole ineligibility imposed when the death penalty was repealed violated her s. 7 rights. In allowing her appeal, the Supreme Court held she should have been prosecuted under the earlier law and sentenced to a lesser parole ineligibility period (Gamble).
More recently, on Jan. 31, 2002, Jamil Osai Ogiamien pleaded guilty and received a six-month sentence for uttering a forged United States document at an Ontario driver’s licensing office, which led to a deportation order. He maintained that the trial judge had not been made aware of his immigration status, resulting in harsher treatment than would have been given to a similarly situated naturalized Canadian. Ogiamien brought a habeas corpus application in Superior Court, claiming that his counsel failed to notify the sentencing judge of the impact a jail sentence would have on his immigration sentence. The court held that this claim should have been brought to an appeal court and not a court hearing an application for habeas corpus (R. v. Ogiamien, 2015 ONSC 3733).
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the [True Crime] Story (AOS Publishing.). Contact him at johnlornehill@hotmail.com.
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