“Faint Hope” in the Firing Line: Repeal of Section 745.6?

Abstract

Section 745.6 of the Criminal Code--colloquially known as the faint hope clause--permits most offenders sentenced to life imprisonment for murder or high treason, and who have to serve at least 15 years prior to becoming parole eligible, to have a jury review their parole eligibility dates. This includes all offenders convicted of first-degree murder and a small number of second-degree murder convictions (those with parole ineligibility periods in excess of 15 years). The faint hope clause is unique in the common law world; in other jurisdictions, parole eligibility is stipulated in statute, with the discretion to release prisoners vested in parole authorities. This provision is one of two ways in which community opinion may influence the sentencing of offenders convicted of murder in this country. (1) Juries have the power to make the applicant eligible for parole but the decision to grant or deny parole remains at the discretion of the National Parole Board. Section 745.6 has attracted controversy ever since the first application was heard in 1987. Calls for repeal or amendment grew more strident and more frequent following the unsuccessful application by Clifford Olson, and amendments to the provision were passed in 1997. Whatever their effect on the number and outcomes of applications under this provision, the amendments have failed to placate critics of judicial review. Whenever a high-profile individual (like Colin Thatcher) or any egregiously shocking case results in an application, headlines follow, and calls for repeal are renewed. In response, the federal government has recently introduced Bill C-36, which would repeal the provision with respect to offenders convicted of a murder committed on or after the day that the proposed legislation comes into force. (Bill C-36 received second reading on 18 June 2009.) For prisoners convicted of murder before this date, elements of the provision will be amended to make a successful outcome less likely. Other government proposals in the field of criminal justice will affect larger numbers of offenders and victims, but there are two reasons for examining C-36 in detail. First, it deals with one of the most publicly discussed provisions in the Criminal Code, and second, if passed without amendment, it may represent the first step towards more repressive amendments to the murder sentencing provisions. Some amendments to section 745.6 may be desirable. For example, there is no denying the trauma that 745.6 hearings cause crime victims, and one may question the wisdom of allowing applicants who have failed to secure any reduction in their parole ineligibility periods to make subsequent applications quite so expeditiously after the first application fails. If an application has failed to convince a jury on the basis of the prisoner's conduct after 15 years in prison, his case is unlikely to be much more convincing two years later. (2) Similarly, does it really make sense to allow a hearing in the case of a prisoner who has served 23 years of his 25 year sentence? One purpose of this brief article is to call for a thorough, comprehensive analysis of the way that provision has functioned over the past 20 years, (3) although the chances of an informed debate founded on an evidence-based review do not seem tbright. For example, when Daniel Petit moved that Bill C-36 be read the second time and referred to committee, he was asked how many people make an application and how many people actually succeed in an application, he was stumped for an answer, simply responding No matter how many people are affected ... regardless of the number of people, it is a question of justice for the (House of Commons Debates 12 June 2009 at 4565). The debate over this provision has become simplistic in tone--pitting prisoners' rights against victims' interests. It is yet another example of the false zero-sum game in which every proposal that appears to benefit offenders, must also, by definition, disadvantage victims (see Tonry forthcoming). …