The reasons are set out in R. v. Sunshine, where David Sunshine was convicted of the second-degree murder of a child.
At sentencing, B.C. Supreme Court Justice Elliott Myers asked the jury — as the Criminal Code requires — to provide a recommendation on the period of parole ineligibility (between the minimum of 10 years and maximum of 25).
Seven jurors declined to make a recommendation, four recommended a parole ineligibility period of 20 years, and one recommended 15 years. In the end, Myers exercised his discretion in deciding 15 years of parole ineligibility.
Lawyer Micah Rankin, who represented Sunshine in the appeal, argued that wording in s. 745.2 of the Criminal Code makes use of the singular construction, referring to a “jury” making a “recommendation” — not to jurors making recommendations.
Therefore, he argued, the judge erred by failing to instruct the jury that it was required to make a unanimous recommendation.
Indeed, the court’s decision acknowledges a plain interpretation of the statute does suggest the need for unanimity. However, that consideration is weighed against others in concluding that — notwithstanding the wording in the statute — a judge need not require unanimous recommendations from the jury.
The decision states: “. . . a more expansive view, in my view, better accords with the character of the advice as a recommendation only, remembering the lack of instruction to the jury on the principles of sentencing, the fact the jury has already been engaged, perhaps exhaustingly, in the search for unanimity of a verdict, and the lack of unanimity required of a jury on the route each juror took to the verdict. An interpretation that does not require unanimity is consistent with the objective of providing the judge with some impression of society’s view.”
Rankin, who teaches constitutional and civil liberties law at Thompson Rivers University, says he’s disappointed the ruling didn’t delve deeper into the historical context of jury recommendations.
“There was a whole lot more substance to it,” he says.
Rankin points out that recommendations for parole ineligibility are a remnant of the “recommendations of mercy” that used to exist when murder convicts were sentenced to death. Because of the gravity of the sentence, juries were asked to voice a recommendation.
And while parole ineligibility doesn’t carry nearly the same gravity as capital punishment, Rankin says the provision is still extraordinary — it remains the only instance where juries are asked to make a recommendation on sentencing.
“Parliament has done something extraordinary here. For the most severe penalty, the most serious crime, we’re going to involve the jury,” he says, “and now the courts have designed a procedure that makes their involvement of very limited value or importance.”
Rankin doubts this decision will have much impact on jury processes outside murder convictions. However, it does add an interesting twist to the ongoing debate around judicial discretion in violent crime sentencing, given the federal government’s tough-on-crime agenda.
“Perhaps the government will want to have juries more involved in sentencing. They certainly seem to be promoting that approach,” says Rankin. “And to the extent that we look to the future of involving the jury more, one might wonder whether having a process that was not unanimous was a good one.”