FAQ: Faint-hope clause
Last Updated Dec. 1, 2006
Colin Thatcher on his way to a parole hearing in 2004. (Chuck Stoody/Canadian Press)
What is the faint-hope clause?
The faint-hope clause, or judicial review, section 745.6 of the Criminal Code, states that prisoners serving the maximum sentence of life in prison without the possibility of parole for 25 years may apply for early parole after serving 15 years.
The clause was added to the Criminal Code after Parliament abolished the death penalty in 1976 and replaced it with mandatory life terms of imprisonment for first-degree and second-degree murder.
A first-degree murder charge requires evidence of premeditation. It also encompasses contract killings and the murder of police officers and prison employees.
The provision was added to encourage rehabilitation for convicted murderers and to align with other countries that allow convicted murderers to be paroled after 15 years.
The section was amended in 1997 to add a review of the case by a judge. It also imposed the requirement for a unanimous agreement, rather than eight out of 12 jurors. People convicted of more than one murder in Canada must serve 25 years before being eligible for parole.
During the 2006 election campaign, the Conservatives pledged to repeal the clause. In August 2006, Justice Minister Vic Toews stated he would soon introduce legislation to repeal the clause.
Parole is a means of releasing an offender back into the community in a controlled fashion. The offender is supervised and receives guidance and support through counselling, training and job placement. It often includes conditions such as avoiding other convicted criminals, drugs, alcohol, and adhering to a curfew.
How does the faint-hope clause work?
The clause allows people convicted of murder, after serving 15 years of their sentence, to apply to the Chief Justice of the province where the conviction occurred to have their parole eligibility period reviewed by a jury.
A judge reviews the case to determine whether it has a reasonable prospect of success.
If the judge thinks the application can be successful, he or she will forward the decision to a jury made up of 12 members of the community.
The jury will consider things like the applicant's character, behaviour in prison, the nature of the offence, information provided by the victim, and any other relevant information.
In order to grant parole, the jurors must reach a unanimous decision. Then, the application is presented to the National Parole Board.
The parole board, in turn, must consider whether the release would present an undue risk to society and whether it would assist in the offender's rehabilitation.
If the application is denied, the offender remains imprisoned, and can reapply after two years, unless otherwise specified by the jury.
If parole is granted, the person remains paroled for life. However, if they break the conditions of their parole they are returned to prison.
How often is it used?
The first Judicial Review hearing was in 1987, and by December 2006 there was a total of 145 court decisions. From this, 74 people successfully obtained release into the community.
As of Sept. 26, 2004, there were 1,547 offenders with cases potentially eligible under the faint-hope clause. Of the 145 cases, 118 resulted in early eligibility for parole, and 97 were granted release by the National Parole Board. Of those released, 17 were returned to custody, four died, and two were deported.
What do people think about it?
The cause is controversial in Canada. Critics argue that applications made under the section traumatize the families of victims, who must revisit the details of the case and consider the possibility of the criminal returning to a community. Proponents argue the clause is necessary to give convicted murderers some hope, and thus prevent prisons from being even more dangerous than they already are.
Toronto lawyer Tim Danson, who represented the families of the victims of Karla Homolka and Paul Bernardo, disagrees with the clause.
"I'm not one who agrees with the faint-hope clause, recognizing it applies to people who have been convicted of first-degree murder. This means people who deliberated and gave a lot of planning to the murder," he says.
"And [someone] having taken a life in such a manner, given that we don't have the death penalty, and I don't support it, life should be life without parole."
What are some famous cases?
Colin Thatcher, a former Saskatchewan politician, was convicted of first-degree murder in the death of his ex-wife, JoAnn Wilson. She was beaten and shot in the head in the garage of her home on Jan. 21, 1983. On Nov. 30, 2006, he was granted full parole under the faint-hope clause. Under the terms of his release, he is required to attend counselling and report his relationships to the parole board.
Danny Homer was 18 when he killed Ira McDonald in Regina in January 1977. Homer was providing McDonald with stolen goods for resale, until McDonald broke into Homer's home, tied him up and threatened him, demanding money. In the end, he got free and shot McDonald. He applied for early parole under the clause in the late 1990s.
Serge Lefebvre is a former Ste-Foy, Que., police officer who killed two Quebec City police officers in 1985 when they surprised him during a robbery. He applied for early parole under the clause in 2001.
Robert Durnford, of Corner Brook, Nfld., was one of two men convicted in the sexual assault and murder of Marilyn Ann Newman. He applied for early parole in 2000.
Clifford Robert Olson, arguably the most notorious Canadian serial killer, who was convicted of killing 11 children, applied for early parole in 1997, sneaking in just before the Liberals amended the clause to exclude multiple-murderers. At the hearing, Olson displayed a pornographic picture of a child and grinned at the families of the victims. The request was denied. He applied again in July 2006, and was again denied.
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