Backgrounder: Legislation to repeal the “faint hope” clause

The new legislation

The repeal of the faint hope clause means that offenders who commit murder on or after the day that this legislation comes into force will no longer be able to apply to be eligible for early parole. Those who will serve a life sentence for first degree murder will not be eligible to apply to the Parole Board for parole until they have served at least 25 years.

Those who will serve a life sentence for second degree murder will not be eligible to apply to the Parole Board for parole until their parole ineligibility period is served, which could be up to 25 years.

The previous regime will still apply to those offenders who are currently serving a sentence or awaiting sentencing for murder, but the new legislation will make it more difficult for those offenders to apply for early parole under the faint hope clause, by setting the following conditions: 

• a judge will have to be satisfied that there is a substantial likelihood that a jury would agree unanimously to reduce the applicant’s Parole Eligibility Date;
• after serving at least 15 years of his or her sentence, an offender will have only three months in which to apply or re-apply to be considered for the faint hope regime;
• if the offender does not apply within the three-month period , he or she will have to wait a minimum of five years before getting another chance to apply; and,
• unsuccessful applicants will have to wait a minimum of five years before they can re-apply. Again, an offender will only have a three-month period to re-apply.

For those offenders who are currently serving or awaiting sentencing for murder, the longer waiting period to re-apply after an initial rejection will bring more peace of mind to victims’ loved ones because unsuccessful applicants will be able to apply only two times: once when they become eligible after serving 15-years of their life sentence, and once more five years later.  Under the old system, unsuccessful applicants could potentially apply a total of five times: at the end of the 15-, 17-, 19-, 21- and 23-year marks.

The previous regime

Under the previous legislation, offenders sentenced to life imprisonment for committing first- or second-degree murder could apply to a Chief Justice or a Superior Court Justice to have their parole eligibility period reviewed by a jury. They could only apply after serving 15 years of their sentence.

The parole system

If parole is granted, the offender remains under supervision for their entire life unless parole is revoked, in which case the person would be returned to prison. Any breach of the offender’s parole conditions or a conviction for a new offence would also possibly result in the return of that person to prison.

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Department of Justice Canada
February 2011