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Research – Section 745

KEYPOINTS

  • Abolition of the death penalty in 1976 led to the creation of § 745 of the Criminal Code which dealt with life sentences.
  • A life sentence means an offender may never be released from prison unless they successfully apply for parole.
  • Offenders are not eligible to apply for parole for 25 years for first degree murder and for 10-25 years for second degree murder.
  • Section 745.6, the faint hope clause, is an exception to this which allows inmates who have served at least 15 years of a life sentence in prison and who have not murdered more than once the opportunity to have this ineligibility shortened.
  • As of the fall of 2010, 146 or 9.7% of the offenders who were eligible to apply under the faint hope clause did so successfully.
  • On March 23, 2011 the Faint Hope clause was repealed with the passing of Bill S-6 for all offenders who offended on or after March 23, 2011.


INTRODUCTION

Section 745 of the Criminal Code of Canada outlines which crimes are eligible for life sentences of imprisonment and under what conditions offenders who have received a life sentence qualify for parole. Since the death penalty was abolished in 1976, the actual length of a “life” sentence has been a contentious issue in Canada. There are those who feel that a life sentence should truly mean forever.


BEFORE ABOLITION

Prior to1869, the use of the death penalty was much more common and execution was sentenced for rape, treason, arson, and endangering a ship. By 1869 only murder, rape, and treason were punishable by death in Canada. The law remained this way until 1961 when the situations where the death penalty could be used were narrowed considerably to a single offence: capital murder. Murder was divided at this point into capital and non-capital murder. Capital murder included any murder that was planned, occurred during the commission of another violent crime, or was committed against a police or correctional officer who was on duty. Non-capital murder included all other murder (Justice Canada, 2009).

From 1961 to 1976, drastic changes were made to capital punishment. The last people to be executed in Canada were killed on December 10, 1962. A five-year moratorium on executions was passed in 1967. This moratorium was extended for another five years upon its expiry. During this time, all persons convicted of capital murder had their death sentences commuted to life imprisonment (Chandler, 1976).


DEATH PENALTY AND LIFE SENTENCES

On July 14th 1976, the passing of Bill C-84 abolished the death penalty in the Criminal Code of Canada. This did not mark the total abandonment of the death penalty in Canada however. Although no one was executed in Canada after 1961, the death sentence still existed in the National Defence Act until 1998 when it was completely abolished (Justice Canada, 2009). Bill C-84 abolished the death penalty in criminal cases in Canada and also created two new categories of murder, first and second degree; essentially new names for capital and non-capital murder. Both of these categories carried a minimum life sentence imprisonment. Those convicted of first degree murder, however, were allowed to apply for parole after 25 years served and those who committed second degree murder between 10 and 25 years (Pilon, 1997). The laws on parole eligibility are quite similar today, with slight changes in the application process to further restrict it.

In 1976, the 25-year parole ineligibility period was thought of as a trade-off to achieve abolition of the death penalty. Without this establishment of a more severe sentence than was common at the time for a life sentence, it was thought that the public and parliament would not have supported abolishing the death penalty (Manson, 1990). Prior to 1967, when a person was convicted of capital murder and had their death sentence commuted to life imprisonment they were eligible for parole after 10 years and, for someone convicted of non-capital murder and sentenced to life, after only 7 years (Parole Regulations, 1964). After 1967, anyone serving a life sentence for murder (capital or non-capital) was ineligible for parole until they had served 10 years of their sentence and required approval of the Governor in Council prior to their release (Parole Regulations, 1968). Beginning in 1974, judges were able to increase the parole ineligibility period to a maximum of 20 years (Criminal Law Amendment, 1973-74). Between 1968 and 1976, life sentence offenders served only 13.2 years in jail on average before being release on parole (O’Reilly-Fleming, 1991). The 25-year parole ineligibility period which began in 1976 thus marked a large increase in the time before a murderer could apply for parole. Those that gain parole must remain on parole for the rest of their lives.


SECTION 745

Section 745 of the Criminal Code of Canada states that those convicted of the following crimes shall be sentenced to life imprisonment as a minimum sentence:

  1. High treason;
  2. First degree murder;
  3. and Second degree murder.

Life imprisonment, as worded in the Criminal Code, requires that offender remain in prison for their entire lives unless they successfully apply for parole to the Parole Board of Canada. The term indeterminate sentence may also be used as there is no established date when an offender would be released on parole. A life sentence, or indeterminate sentence, may also be given as a maximum sentence for serious crimes such as robbery and aggravated sexual assault. Offenders classified as dangerous offenders also receive a life or indeterminate sentence (Criminal Code of Canada, 1985).

An offender shall remain in prison forever unless granted parole. There are, depending on the offence committed, limitations on how soon an offender can apply for parole. Those convicted of first degree murder, second degree murder having previously been convicted of murder, second degree murder having previously been convicted of certain crimes against humanity and war crimes, and treason are not able to apply for parole until they have served the first 25 years of their sentence from the date of their arrest (Criminal Code of Canada, 1985).

For those convicted of second degree murder, section 745.4 allows a judge to choose a period of 10 to 25 years of parole ineligibility, taking into consideration the character of the offender, the nature of the offence and any other circumstances surrounding the commission of the offence. Section 745.2 also allows the jury in second degree murder cases to make a recommendation to the judge (Criminal Code of Canada, 1985). The parole ineligibility period refers to full parole. Prisoners become eligible for unescorted temporary absences and day parole three years before their full parole eligibility date (Corrections and Conditional Release Act, 1992).

Those who commit a crime other than murder for which the maximum available sentence is life imprisonment (robbery, aggravated sexual assault, etc.) are eligible for parole after 7 years, which can be delayed at the judge’s discretion it to 10 years. Dangerous offenders are eligible for parole after 7 years and must have a review every 2 years thereafter (Criminal Code of Canada, 1985; Corrections and Conditional Release Act, 1992). Those under 18 years of age who have committed first and second degree murder have a shorter parole ineligibility period. Section 745.1 states that these offenders shall be sentenced to life imprisonment without eligibility for parole until the person has served 5-7 years for those under 16, 10 years for those 16-17 committing first degree murder, and 7 years for 16-17 convicted of second degree murder (Criminal Code of Canada, 1985).


THE FAINT HOPE SECTION

There is a possible exception to the parole ineligibility period. Section 745.6 of the Criminal Code, or the faint hope clause, allows persons sentenced to life imprisonment who are ineligible for parole for at least 15 years (i.e. those convicted of murder and treason), who have served at least 15 years of their sentence, and who have not committed homicide multiple times to apply to the Chief Justice of the province where their conviction took place to have their parole eligibility reduced (Criminal Code of Canada, 1985). Bill C-45 on January 9, 1997 amended s. 745.6 to exempt multiple murderers from applying. Prior to that time any lifer could apply (Pilon, 1997).

Further changes were made with the passing of Bill S-6, which received royal assent on March 23, 2011. This bill abolished the Faint Hope clause for anyone who committed murder or high treason on or after March 23rd. Those offenders currently serving a life sentence whose offence occurred prior to March 23, are still able to apply for judicial review, however the process of the review has become significantly more constrained (Public Works and Government Services Canada, 2011).

Also, for those already incarcerated for a life sentence prior to March 23, 2011, Bill S-6 incorporated the new requirement that offenders only have a 90 day window in which to submit an application for judicial review once they have served 15 years. Prior to Bill S-6, offenders could apply at any time once they had served the 15 year requirement in jail, and if their application was denied, they could reapply every two years after for the possibility of having their parole eligibility date reduced. Now however, those offenders only have a 90 day window to apply, and can only apply once every 5 years after each denied application. Furthermore, once the offender has waited an additional 5 years to re-apply, they once again only have a 90 window to do so.  It is important to not here, that the 90 day window may be extended to a maximum of 180 days if it can be shown that the offender could not submit an application with the 90 day period due to circumstances beyond their control (Public Works and Government Services Canada, 2011).

The purpose of the faint hope clause, as its name would suggest, was to give offenders hope to be released earlier. There were concerns that without any hope of getting out early for good behaviour, offenders who received life sentences would behave poorly and cause more safety/security issues while incarcerated. Moreover, it was thought that many offenders who commit second degree murder do so in the heat of the moment and would not kill again. At the time the clause was being introduced in parliament as Bill C-84, a government representative described the bill as very important “if some incentive is to be left when such a terrible penalty is imposed on the most serious of all criminals” (House of Commons, 1976: p.13253).

The Judge

Once a faint hope clause application has been made, s.745.61 states that the Chief Justice shall appoint a superior court judge to determine if the offender has shown, based on reports from the Correctional Service of Canada, the application itself, and any other information presented by the applicant and the Attorney General, a substantial likelihood, based on probability, that their application will succeed. The judge makes this decision based on the same criteria used by juries that is listed below (Department of Justice, 1995; Criminal Code of Canada, 1985). In 1997, Bill C-45 added this subsection requiring an initial judicial review. Prior to this time an offenders’ application would go straight to a jury; a Chief Justice or superior court judge was not required to review the application (Pilon, 1997). The purpose of this review is a pre-screening. If it is determined there is no reasonable prospect that an offenders’ application will be successful then it saves a lot of time and money to avoid convening a jury. Further, Bill S-6 changed the probability of success requirement from a reasonable prospect to a substantial likelihood of success; making the requirements for an application to be successfully referred to a jury all the more stringent (Public Works and Government Services Canada, 2011).

If the Chief Justice determines that there is not a substantial likelihood of success, they may rule either that the offender can apply again at a time no earlier than five years from the application or that the offender may not apply again. In the latter case, the prisoner would not be able to apply for full parole until their standard ineligibility period was up or for temporary parole until 3 years before that time. Prior to Bill S-6 of 2011 the minimum time an offender had to wait to reapply was only two years, as noted earlier.  If it is determined there is a substantial likelihood the application will succeed then a judge of a superior criminal court will be selected to empanel a jury to hear the application (Public Works and Government Services Canada, 2011).

The Jury

Upon passing the review stage by a judge the application will be referred to a standard jury of twelve people will hear the case and make a decision whether or not to reduce the parole ineligibility period. Section 745.63 lays out what the jury (and judge) may take into account when considering the application of the offender:

  1. the character of the offender;
  2. their conduct;
  3. the nature of the offence the offender was convicted of;
  4. information provided by the victim including verbal and written testimony;
  5. and any information provided by the judge that they deem to be relevant.

The jury’s decision must be unanimous to reduce the offender’s parole ineligibility (Criminal Code of Canada, 1985). Bill C-45 made this requirement, whereas before the jury only required a two-thirds majority (Pilon, 1997). If the jury decides it should not be reduced, they conclude they cannot unanimously determine it should be reduced, or a judge determines they have deliberated for a reasonable period of time and are not able to unanimously conclude it should be reduced, then the application is rejected. The jury may set a time, not earlier than five years from the date of the hearing, when the offender my apply again to have their parole ineligibility reduced or decide not to allow the offender to make another application. This requires no less than two thirds of the jury. After waiting for the minimum five year period an offender would then be able to resubmit an application within 90 days from the date they were eligible to reapply. If they missed applying in this period they would then have to wait five more years (Criminal Code of Canada, 1985).

If a unanimous decision to reduce the parole ineligibility is made then the jury must decide, based on a two thirds vote, a time earlier than the original parole eligibility date that the offender will be eligible to apply, or to allow them to apply immediately (Criminal Code of Canada, 1985). The next step would then be for the offender to apply for parole to the Parole Board of Canada. Parole is not automatically granted through the Faint Hope review process, the offender is simply able to apply for parole earlier then they would otherwise have been.


USE OF THE FAINT HOPE SECTION

As Bill C-45 has only been in effect since January 9 1997, the exemption of multiple murderers will only apply to those who committed at least one of the murders after January 9 1997. The judicial screening process by the Chief Justice and the requirement of a unanimous decision by the jury applies to all applications made after January 9 1997. From the creation of s.745 of the Criminal Code in 1976 to the end of July 1997, 328 offenders who had been convicted of first and second degree murder became eligible for judicial review of their parole ineligibility (D’Arcy, 1997). Of the 328, only 82 appeared before a jury. The vast majority of those who appeared before a jury would not have had to pass judicial screening first as only applications made after January 9, 1997 would have the new rule applied to them. Of the 82 applicants that appeared before a jury, 64 received a reduction in their parole ineligibility. Of those, only 25 were released earlier than their parole ineligibility would have allowed. This would indicate that a reduction in an offenders’ parole ineligibility period does not necessarily translate into early release on parole by the Parole Board of Canada. Of the 64 offenders who received a reduction in their parole ineligibility, only 3 had been reconvicted (D’Arcy, 1997).

Further statistics show that on November 8, 2002 there were 417 offenders who had served at least 15 years of a life sentence and were eligible to apply for judicial review of their parole ineligibility. As of November 8th, a decision had been made in 129 of the cases and 102 of those offenders had their parole ineligibility period reduced. Fifty-eight of those 102 offenders had received full parole and 12 had received day parole (National Parole Board, 2002). A final set of statistics from the Parole Board of Canada reveals that, as of October 2010, there were 1,508 offenders who were eligible to apply for a judicial review to have their parole ineligibility reduced. Of the 1,508 eligible, 181 (12%) offenders received jury decisions on their judicial review applications. This number does not reflect the number of people who have applied for a review as a provincial judge needs to first approve the application and refer it to a jury for any application after 1997. It is likely that significantly more offenders have applied and been denied even before the jury decision stage. The statistics available unfortunately did not indicate the total number of offenders who had made an application. Of the 181 jury decisions, 146 (9.7%) of offenders received a reduction in their parole ineligibility period and 35 were denied. Of the 146 offenders who received a reduction 135 (8.9%) have been granted parole (Parole Board of Canada, 2011). In summary Of the 1,508 eligible offenders, only 135 or 8.9% received a reduction in their parole ineligibility and have been granted parole.

Sources

Chandler, D. (1976). Capital Punishment in Canada. McClelland and Stewart Limited: Canada.

Correctional Service of Canada. (2007). Offenders Serving Life Sentences for Murder. Retrieved from http://www.csc-scc.gc.ca/text/faits/03-06-eng.shtml on December 16/2010.

Corrections and Conditional Release Act. R.S.C. (1992). c. C-20.

Criminal Code, R.S.C. (1985). c. C-46.

Criminal Law Amendment Capital Punishment Act. (1973-74). S.C. c.38.

D’Arcy, J. (1997). Good Intentions, Mixed Results: Section 745 Was meant to Encourage Lifers to Behave. Macleans, 110(33): 16.

Department of Justice. (1995). Government Introduces Major Changes in Section 745 of the Criminal Code. Department of Justice press release, 11 June 1995.

House of Commons. (1976). Debates. 6 May 1976, 1st Session, 30th Parliament, Vol. XIII, p. 13253.

Justice Canada. (2009). Capital Punishment in Canada. Retrieved from www.justice.gc.ca/eng/news-nouv/fs-fi/2003/doc_30896.html on December 7/2010.

MacKay, R. (2010). Bill C-48: An act to amend the Criminal Code and to make consequential amendments to the National Defence Act (Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act). Library of Parliament. Publication No. 40-3-C48-E.

Manson, A. (1990). The Easy Acceptance of Long-Term Confinement in Canada. 79 C.R. (3d) 265.

National Parole Board. (2010). PBC QuickStats. Retrieved from http://www.pbc-clcc.gc.ca/infocntr/factsh/parole_stats-eng.shtml#tphp on January 17/2011.

National Parole Board. (2002). Offenders Serving A Life Sentence for Murder: A Statistical Overview. Retrieved from http://www.pbc-clcc.gc.ca/rprts/pdf/pls_2002_e.pdf on January 17/2011.

O’Reilly-Fleming, T. (1991). The Injustice of Judicial Review: Vaillancourt Reconsidered. Canadian Journal of Criminology. April: 163.

Parole Regulations. (1968). SOR/68-21, 24 January 1968.

Parole Regulations. (1964). SOR/64-475, 23 December 1964.

Pilon, M. (1997). Murders’ Parole Eligibility: The Evolution of Judicial Review. Law and Government Division of Public Works Canada. Retrieved from http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/BP/bp348-e.htm#(10) on December 15/2010.

Public Works and Government Services Canada. (2011). Bill S-6 An Act to amend the Criminal Code and another Act. Publishing and Depository Services. Retrieved from http://www.parl.gc.ca/HousePublications/Publication.aspx?Docid=5076114&file=4 on October 18/ 2011.

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