In Canada, both first-degree murder as well as second-degree murder come with mandatory minimums of life imprisonment. This means that if you are convicted of either of these offences, the judge must impose a sentence of life imprisonment on you, although the period of parole ineligibility varies depending on which offence you are convicted of. First-degree murder comes with a mandatory minimum period of parole ineligibility of 25 years. Second-degree murder comes with a mandatory minimum period of parole ineligibility of 10 years.
If you have been convicted of an offence and sentenced to life imprisonment, your first step should be to see if you have any grounds to appeal either your conviction or your sentence. For more information on Appeals see our post “Criminal Appeals: Why Getting it Right the First Time Matters” here.
If you have already used up all of your appeals, there may still be options open to you. In Canada, there are two main types of post-conviction applications which may serve to either overturn your conviction or reduce your period of parole ineligibility. These are commonly known as “Applications for Ministerial Review” and “Faint Hope Clause” Applications.
Applications for Ministerial Review are rare, but useful in certain circumstances. If you have been convicted of an offence, and you have exhausted all avenues of appeal, you may apply to the Minister of Justice, pursuant to s. 696.1(1) of the Criminal Code of Canada on the grounds that there has been a “miscarriage of justice.”
Unlike appeals, on these applications the argument is not that the trial judge wrongly decided the case or made an error of law. Rather, Applications for Ministerial Review require some sort of new evidence, not previously considered by the Courts, that tends to either suggest that the individual was wrongfully convicted of the crime (a clear miscarriage of justice) or that the individual was convicted on an unfair trial. Applications for Ministerial Review occur in four stages: preliminary assessment; investigation; preparation of an investigation report; and the decision by the Minister. When deciding whether to allow an Application for Ministerial Review, the Minister must consider the relevance and reliability of the new evidence while keeping in mind that Applications for Ministerial Review are not intended to serve as a further appeal. If, after reviewing the new evidence, the Minister is satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred, the Minister may order a new trial (or hearing in the case of a person found to be a dangerous offender or long-term offender) or the Minister may refer the matter to the Court of Appeal as if it were a conviction appeal by the offender.
It is important to remember that an Application for Ministerial Review is an extraordinary remedy that will only be successful in rare circumstances. These applications also typically require a significant amount of document review and further investigation in order to be successful. As such, it is recommended that you find an experienced post-conviction lawyer at least one to two years prior to making such an application so that the necessary work can be properly completed.
To discuss whether you are a good candidate or not for an Application for Ministerial Review, contact one of our post-conviction lawyers for a free 30-minute consultation now at 1-833-784-7500.
“Faint Hope Clause” Applications differ from Application for Ministerial Review in that they do not seek to overturn a conviction or obtain a new trial but, rather, they seek to reduce an individual’s period of parole ineligibility. “Faint Hope Clause” Applications are limited to individuals who have been sentenced to life imprisonment with a period of parole ineligibility of greater than 15 years.
“Faint Hope Clause” Applications are a dying breed in Canada. Recent amendments to the legislation have removed the possibility of making these applications for anyone who committed the offence for which they were convicted or sentenced after December 2, 2011. As such, anyone who has been recently been convicted and sentenced to life imprisonment without parole for over 15 years will not be eligible for such an application.
“Faint Hope Clause” Applications are governed by section 745.6 of the Criminal Code of Canada, which allows an individual to apply to the Chief Justice of the Province in which they were convicted, after having served at least 15 years of their sentence, for judicial screening to determine whether their application will be permitted to go before a jury.
At the judicial screening stage, the Chief Justice considers a written application, in conjunction with Corrections Services of Canada records, any relevant reports or other written evidence submitted by the Applicant. At this judicial screening application, the factors to be considered are the character of the Applicant, the Applicant’s conduct while serving his or her sentence, the nature of the offence for which the Applicant was convicted, any information provided by the victim at the time of the imposition of the sentence OR at the time of the judicial screening application, and any other materials the Chief Justice considers relevant.
At this stage, the Applicant must establish that there is a substantial likelihood that the application will succeed. In other words, the Applicant must establish that there is a substantial likelihood that a jury will reduce their period of parole ineligibility.
It is important to note that there are very specific deadlines to follow when making a “Faint Hope Clause” Application. The materials required for such an application are voluminous, as it usually includes a review of all of the offender’s inmate records for their first 15 or so years of incarceration, which may come from several different institutions. Additionally, if forensic reports were ordered either at the trial state or the sentencing stage, it may be useful for the offender to obtain updated reports prior to making their application for judicial screening. It is recommended that you find yourself an experience post- conviction lawyer at least one to two years prior to the deadline required to bring your application for judicial screening (i.e. the 15-year mark, from the date of your arrest on the crime for which you were convicted).
Like Appeals and Applications for Ministerial Review, Legal Aid Alberta may provide coverage for legal fees associated with making such an application. However, an opinion letter as to the merits of such an application may be required from a qualified Legal Aid Roster Lawyer who is familiar with your case. Again, this takes time.
To discuss with one of our post-conviction lawyers whether you are a good candidate for a “Faint-Hope Clause” Application, call 1-833-784-7500 for your free 30-minute consultation now.
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