Life Sentences subject to The “Faint Hope Clause”
The “Faint Hope Clause” provides a gradual structured release opportunity for those Lifers who have made all the necessary efforts to change their lives and can safely reintegrate into society as law-abiding productive citizens.
Rationale
The “Faint Hope Clause” offers an inmate serving a life sentence for murder or high treason, the possibility to apply to have his/her parole inadmissibility date reviewed, after serving at least 15 years.
Lifers represent a low risk to re-offend and should be given an opportunity to contribute to society rather than remain in penitentiaries, institutionalized and utterly dependent. Lifers released on parole could be in a position to find employment and pay taxes while providing some level of support to their families.
Since the first judicial review hearing of a life sentence in 1987, there have been a total of 267 court decisions by the end of fiscal year 2022-23. Of these, 73.4% of the court decisions resulted in a reduction of the period that must be served before parole eligibility. Of the 196 offenders who had their parole eligibility date moved closer, 192 had reached their revised Day Parole eligibility date. Of these,180 were released on parole because of the “Faint Hope Clause” and 116 were being actively supervised in the community. 6 were in custody, 48 were deceased, 6 were deported, and 4 were temporarily detained.
By 2010 the Parole Board revoked parole in only 9 cases for non-violent offences that ranged from Impaired Driving to Fraud under $5,000. There were only two revocations for a violent offence, one for an offence of Robbery and the other for Assault with a weapon. These statistics clearly show that the Faint Hope Clause, as it was applied did not pose an undue threat to the safety of our communities.
As a result of Bill S-6, this useful mechanism was eliminated for all “lifers” whose offences were committed after December 2, 2011, even if they no longer represent an undue risk to the community and would most benefit from release. This is contrary to the principles of sentencing laid out in Section 718 of the Criminal Code, as it reduces the opportunity for further rehabilitation once the benefit of incapacitation and general deterrence have been exhausted.
Background
The death penalty was abolished in 1976, and Bill C-84 introduced mandatory life-sentences to replace capital punishment. From 1964 to1976, all death sentences were commuted to life sentences with parole consideration available after 7 years servitude. While the abolition of the death penalty was hailed as a humanitarian change, the imposition of the life sentence along with parole ineligibility of 25 years was considered by some as “cruel and unusual punishment”, although a necessary “trade-off” for its abolition. Clause 21 of the Bill established in Section 745.6 of the Criminal Code of Canada, the possibility of lowering the time of parole ineligibility through Judicial Review.
Judicial review is an application to the court for a reduction in the time required to be served before being eligible for parole. Judicial review procedures apply to offenders who have been sentenced to imprisonment for life without eligibility for parole until more than 15 years of their sentence has been served. Offenders can apply when they have served at least 15 years of their sentence. Judicial reviews are conducted in the province where the conviction took place. Applications are first screened by a judge and then the lifer’s application is reviewed by a judge and jury. The jury must consider the character of the offender, his/her conduct during incarceration, the nature of the offence for which he or she was convicted, and such matters as the presiding judge deems relevant in the circumstances.
Lifers are not automatically freed from prison when they are granted a favourable Judicial Review decision.
If the 25 year ineligibility period is reduced by the unanimous decision of the review jury, the individual may then apply for parole at the earlier date. Based upon reports from the Correctional Service of Canada regarding the individual’s correctional progress and behaviour, including psychological reports, a panel of Parole Board members will ultimately decide if and when the individual’s community reintegration programme can commence. Release is usually undertaken on a gradual basis, starting with short, escorted trips to the community, followed by progressively longer periods, often including stays in a halfway house. Lifers always remain under the supervision of the Correctional Service of Canada and must adhere to strict conditions imposed by the Parole Board until death.
Contrary to predictions by death penalty supporters, the homicide rate in Canada did not increase after the abolition of the death penalty in 1976. In fact, the national homicide rate has been declining since the mid-1970s, from around 3.0 to the current rate of 1.83 per 100,000. Nonetheless, Bill S-6 abolished the “Faint Hope” Clause for all offenders sentenced after December 2, 2011. Case law such as R. v. Kolola (2021) confirms that parole through the faint hope clause remains applicable only for those convicted before December 2, 2011.