The Constitutionality of Repealing the "Faint Hope" Clause

Abstract

This article discusses the de facto repeal of the “faint hope” clause of the Criminal Code. The clause was relevant to the Supreme Court of Canada’s holding that the minimum sentence for first-degree murder did not violate the prohibition against cruel and unusual punishment protected under section 12 of the Charter, as it permitted offenders who demonstrated adequate personal reform to apply for parole after serving 15 years of their otherwise mandatory 25-year parole ineligibility period. In response to the de facto repeal of the clause, the British Columbia Supreme Court recently held that the minimum sentence for first-degree murder must violate section 12 of the Charter. This article argues that the temporal limitation of the clause could be declared unconstitutional on the basis that it provides an inadequate role for the rehabilitation principle within the Charter framework.