Backgrounder: Legislation to repeal the “faint hope” clause

Proposed changes:

The repeal of the faint hope clause means that offenders who commit murder on or after the day that this proposed legislation comes into force will no longer be eligible to apply for early parole.

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

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

• a judge would 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 their sentence, an offender would have only three months in which to apply or re-apply to be considered for the faint hope regime;
• if the offender did not apply within the three-month period , he or she would have to wait a minimum of five years before they get another chance to apply; and,
• unsuccessful applicants would have to wait a minimum of five years before they could re-apply. Again, an offender would only have a three-month period to re-apply.

In cases in which the existing regime would still apply, the longer waiting period to re-apply after an initial rejection will bring more peace of mind to victim’s loved ones because unsuccessful applicants will be able to apply only two times: once when they become eligible at the 15-year mark of their life sentence, and once more five years later.  Currently, unsuccessful applicants potentially may apply a total of five times: at the end of the 15-, 17-, 19-, 21- and 23-year marks.

Current legislation

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

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 may also result in the return of that person to prison.

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Department of Justice Canada
April 2010