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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 languish 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.

As of 2010, 136 life-sentenced prisoners were granted parole because of the “Faint Hope Clause”. In nine (9) cases, the National Parole Board revoked parole for non-violent offences that ranged from Impaired Driving to Fraud under $5,000. There were only two (2) revocations for a violent offence, one for an offence of Robbery and the other for Assault with a weapon. The figures clearly show that the Faint Hope Clause, as it has been applied to date, does not pose an undue threat to the safety of our communities.

As a result of Bill S-6, this useful mechanism has been eliminated for all “lifers” whose offences were committed after December 2, 2011, even if they no longer represent an undue risk to the community and would most benefit from release.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 as 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 the mandatory life-sentence 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 to a minimum of 15 years. 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.

A Lifer is not automatically freed from prison when he or she is 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 Canada regarding the individual’s correctional progress and behaviour, including psychological reports, a panel of National 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 Canada and must adhere to strict conditions imposed by the National 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.

In spite of the success of conditional sentences, amendments to the criminal code in 2012 specifically eliminated this as a sanction to be used by judges when dealing with offences carrying a maximum term of imprisonment of 14 years to life, for serious personal injury offences and in other specified indictable offences with a maximum sentence of imprisonment of 10 years.

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