In R. v. Salehi, 2022 BCCA 1, January 4, 2022, the accused, who suffers from Parkinson’s disease, pleaded guilty to two counts of second degree murder. The murders involved the accused having stabbed and killed two people. The Court of Appeal’s only reference to the circumstances was the following brief comment (at paragraph 15):
It suffices to say the appellant murdered two people, Ms. Gabalis and Mr. Faktorovski, in Ms. Gabalis’s home, at night, for reasons apparently related to the appellant’s obsession with Ms. Gabalis, his former domestic partner.
The accused was sentenced to life imprisonment with parole ineligibility set at twenty years.
The accused appeal from sentence, arguing in part, that the sentencing judge “erred in principle by failing to properly consider the appellant’s medical condition as a mitigating factor”.
The appeal was allowed and the period of parole ineligibility was reduced to fifteen years. Interestingly, the Court of Appeal makes no reference to either section 718.2(a)(ii) or 718.201 of the Criminal Code.
Health as a Mitigating Factor in Sentencing:
The British Columbia Court of Appeal indicated that “[i]t is clear that medical conditions that make imprisonment more onerous should be considered in sentencing…It is an error not to consider the effect of an offender’s proven ill health where the offender is suffering from a medical condition that is likely to result in hardship exceeding the normal consequences of a conviction and sentence…The principle of parity demands that a sentencing judge consider particularly harsh conditions of imprisonment…Where there is evidence at the time an offender is sentenced that at some point his continued confinement will constitute an excessive hardship, that evidence must be weighed in sentencing the offender” (at paragraphs 65 to 67).
However, the Court of Appeal also indicated that [i]n cases where a life sentence is not mandatory and with no period of court‑imposed parole ineligibility, appreciation of the court’s limited ability to see into the future calls for progressive illness to be addressed by the correctional authorities rather than the sentencing judge. In such cases that limited ability weighs against adjusting sentences to account for medical conditions” (at paragraph 93).
Life Imprisonment and Parole Ineligibility Orders:
The Court of Appeal suggested that this does not apply “when imposing a minimum life sentence and setting a period of parole eligibility” (at paragraph 94):
In my respectful opinion, the sentencing judge erred in principle by not distinguishing between the weight to be afforded to evidence of illness in sentencing generally, and the weight such evidence should be afforded when imposing a minimum life sentence and setting a period of parole eligibility. She relied primarily on the description of the consideration of an offender’s health in sentencing in R. v. Auckland, 2018 BCCA 171, Swope, Potts and R. v. Babcock, 2013 BCCA 368. In none of those cases was parole ineligibility addressed. In none was the parole board precluded from granting exceptional parole before the offender was eligible for parole. In my opinion, the sentencing judge exercised her discretion unreasonably.
Conclusion:
The Court of Appeal concluded that the period of parole ineligibility should be set at fifteen years (at paragraph 99):
For those reasons, I would grant leave to appeal the sentence, admit the fresh evidence, allow the appeal, and substitute for the sentence imposed a sentence of life imprisonment with no possibility of parole for 15 years. That sentence will reflect the view of the sentencing judge that the appellant’s brutal crimes called for significant denunciation, but impose fewer limitations on the ability of the prison authorities to address damage to the appellant’s physical and mental health and exceptional hardship that is likely to arise during the appellant’s continued confinement.
