Section.745.6 - The "Faint Hope Clause"
By: Karin Stein, Research Officer
Dan Antonowicz, Research Analyst
December 2001
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How is homicide defined in Canada?
According to the Canadian Criminal Code, there are two kinds of homicide: culpable and non-culpable homicide. Culpable homicide includes murder,manslaughter and infanticide. Homicide that is not culpable is not an offence.
There are two forms of murder: first degree and second degree. First degree murder is the most serious and therefore carries the highest penalty. The mandatory penalty for first degree murder is life imprisonment, with no eligibility for parole before 25 years of the sentence has been served in prison. An example of a first-degree murder is one that is lanned and deliberate. First degree murder also encompasses contract killings and the murder of police officers and prison employees.
Without parole, the offender remains imprisoned for life. Offenders who are paroled while serving life sentences remain on parole for life unless parole is revoked. If parole is revoked, the offender is reincarcerated.
Manslaughter is a culpable homicide that is not murder or infanticide. There is no minimum sentence for manslaughter and the maximum sentence is life imprisonment. There is no mandatory minimum for parole eligibility.
Infanticide occurs when a mother causes the death of her newborn infant. The main element of this offence is that
at the time of the killing the perpetrator has not fully recovered from the negative effects associated with
childbirth. The maximum penalty for infanticide is five years.
Where did section 745.6 - Judicial Review ("faint hope clause") come from?
In 1976, Parliament abolished the death penalty for Criminal Codeoffences (as opposed to the death penalty for military offences which was abolished in 1999) and replaced it with mandatory life terms of imprisonment for first-degree murder and second-degree murder. The judicial review provision (i.e., the faint hope clause) came into effect in 1976 at the same time as the new murder provisions. It allows those convicted of murder, and who have served 15 years of their sentence, to apply to the Chief Justice of the province in which the conviction occurred to have their parole ineligibility period reviewed by a jury. The actual decision to allow for parole is not made by court officials, such as judges or lawyers, or by bureaucrats, but by 12 members of the community sitting as a jury.
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