Area of Law: Criminal Law
Answer # 764
Eligibility for paroleRegion: Ontario Answer # 764
Parole is a type of conditional release allowing a person convicted of an offence to serve the rest of his or her sentence out of prison. There are two types of parole: day parole and full parole.
Only the Parole Board of Canada can grant parole. Similarly, if an offender has not met the conditions for parole, only the Parole Board has the power to revoke the parole and return the offender to prison.
The point at which a person becomes eligible for parole depends on several factors, including the type of offence that was committed, when the offence was committed, and how long the sentence is.
However, in most cases, a prisoner is eligible for day parole or unescorted temporary absences after serving one sixth of their sentence. A prisoner is usually eligible for full parole if they have served one third of their sentence, or if they have been in prison for seven years. However, many prisoners do not get full parole until they have served about two thirds of their sentence.
To be considered for parole, a prisoner must make an application to the Parole Board. Although an offender may meet the general eligibility requirements for parole, the Parole Board does not automatically grant parole. Before making a decision the Parole Board will review the case to determine suitability for release. For example, among other things, the Parole Board will look at the person’s criminal record, the seriousness and nature of offences, and when the crimes were committed. They will also consider whether the person understands what they have done and if they are remorseful for having committed the crime. The person’s behaviour while in prison is also an important factor.
Victims can also provide written victim information telling the Parole Board about any continuing impact the crime has on them and any concerns they may have for their own safety or the safety of their family. Such information may help the Parole Board evaluate any risk that the offender poses to the victims and to the community. Victim Impact Statements, as well as other court documents, such as police and psychiatric reports are available to the Parole Board.
The Parole Board’s review of the application can be done by reviewing the files only, without meeting the inmate; or, during a hearing, where the inmate will be interviewed. With permission from the Parole Board, others, such as victims and members of the public, may also attend the parole hearing as observers.
In general, if a person is not granted parole, they will still be eligible for statutory release after serving two-thirds of the sentence. In some cases, the Parole Board can deny a prisoner parole altogether and therefore, the full sentence must be served.
Parole for Murder, Faint Hope Clause – Repealed
People convicted of first-degree or second-degree murder are sentenced to a mandatory life term of imprisonment. Whether they are eligible for parole, and if so when, depends on whether the conviction is for first or second-degree murder, and the date of the conviction.
Murders committed before December 2, 2011
The Faint Hope Clause was a law under the Criminal Code that allowed people convicted of murder to apply for early parole.
On December 2, 2011 the law was changed. Now, the Faint Hope Clause only applies where the murder was committed before December 2, 2011. It allowed offenders to apply for parole after having served 15 years in jail, even in cases where the court had ordered a parole eligibility period of more than 15 years.
While an application for early parole may still be made if the conviction took place before December 2, 2011, the application must have a substantial likelihood of success for it to be considered. The chances of success is determined by a judge during a Judicial Review made to the chief justice in the province or territory where the original conviction took place. A jury made up of 12 members of the community will hear the application and may decide to allow early parole.
If the jury has unanimously agreed to an earlier parole date, the offender must still apply to the Parole Board for a hearing to determine if an earlier date of parole will be allowed. The Parole Board will then make its decision considering whether the release would present an undue risk to society and whether the release would assist in rehabilitating the offender.
Murders committed on or after December 2, 2011
If first-degree murder was committed, (or second-degree murder but the person had a previous conviction of murder), on or after December 2, 2011, then the offender must serve 25 years in jail, and is not eligible to apply for parole before that time.
If second-degree murder was committed, on or after December 2, 2011, then the offender will not be eligible to apply for parole until the date set by a judge at the time of sentencing, which could be a minimum of 10 years, up-to 25 years.
In such cases, it is the judge, not the jury, who ultimately decides whether the offender may apply for early parole. However, while a Judicial Review is not conducted, the judge will only make this decision after he or she has considered any recommendations made by the jury, as well as recommendations from both the Crown prosecutor and the defence lawyer. Again, however, it is still up to the offender to make an application to the Parole Board for a hearing to determine if early parole will be granted or denied.
If you have been charged with a criminal offence, or, for assistance with a parole application, you should consult a criminal lawyer.
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