Court tosses retroactive Harper-era change to ‘faint-hope’ rule for killers

TORONTO — A change by the former Conservative government that made it harder for murderers serving life sentences to apply for parole is unconstitutional if applied retroactively, Ontario’s top court ruled on Thursday.

The binding decision from the Court of Appeal — the latest in a string of decisions undoing the former 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 of ex-prime minister Stephen Harper 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, Ont., 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. 

The Liberal government in 1997 first introduced judicial screening to the faint-hope process. It required a judge to decide that a parole-eligibility application had a “reasonable prospect” of success, thereby weeding out those cases where an inmate had no realistic chance of succeeding.

The Tory government repealed the provision in December 2011 and put in place the stiffer judicial test with retroactive effect.

In 2013, more than 15 years after her sentence began, Dell made her application, but the law now required the enhanced vetting by a screening judge before she could put her case to a jury.

The judge, Superior Court Justice Robert Maranger in May 2015, ruled the change was constitutional. Maranger also rejected Dell’s application on the grounds that it would likely not succeed before a jury. Dell turned to the province’s top court, arguing she should have been allowed to take her case directly to a jury.

Essentially, Dell argued the provision violated a ban on retroactively increasing punishment for a crime. The government counter-argued that her sentence remained exactly as imposed and the new rules — if an infringement — were justifiable in a democracy. The Appeal Court rejected the view, saying the government had gone too far.

“Those provisions go far beyond the screening out of meritless applications and foreclose applications that have a reasonable prospect of success before the jury,” the court said. “In doing so, they overshoot, by a large margin, the objective of the legislation.”

The impact on affected inmates, the Appeal Court found, was “very real and significant.”

“The 2011 amendments to the judicial screening process imposed a significantly more stringent test,” the Appeal Court said. “The 2011 amendments took from the appellant a reasonable expectation that, after 15 years in custody, she would be entitled to ask the community, as represented by the jury, for leniency as reflected in a reduction in her parole ineligibility.”

Colin Perkel, The Canadian Press