National Justice Network Update

Summer 2018

Volume 24, Issue 8

ONTARIO COURT TOSSES RETROACTIVE CHANGE TO ‘FAINT-HOPE’ RULE FOR CONVICTED MURDERERS

Ontario’s top court has ruled a change that made it harder for murderers serving life sentences to apply for parole is unconstitutional, if applied retroactively.

The binding decision from the Court of Appeal – the latest in a string of decisions undoing the former Harper government’s tough on crime agenda – means a woman who killed her husband can now apply for release under the so-called “faint hope” law.

When Cherrylle Dell was convicted of first-degree murder in February 2001, the trial judge gave her the obligatory sentence: life in prison without parole eligibility for 25 years. Under the rules existing at the time, she would have been allowed to ask a jury to reduce the ineligibility period once she had served 15 years.

However, in 2011, the government changed the law, to require a convict to first convince a judge of the “substantial likelihood” a jury would agree to the possibility of earlier parole. Previously, a judge first had only to find a “reasonable prospect of success.”

Dell, of Killaloe, Ontario, argued the change unjustifiably violated her constitutional rights by inflicting harsher punishment on her than when she had been sentenced. The Appeal Court agreed.

“The screening mechanism substantially decreased her chances of obtaining some reduction in parole ineligibility,” the court said in its ruling.

The “faint-hope” clause was first enacted in 1976 following abolition of the death penalty and introduction of the current mandatory life sentence for murder without parole for 25 years for first-degree murder and without parole for 10 years for second-degree murder.