Faint Hope: Background

Danny Homer's calm, detached tone belies the fact that he is talking about the murder that put him behind bars for life. The prisoner, now 38, explains that he was a teenager living in Regina in January, 1977, when he killed Ira McDonald, a 23-year-old partner in crime. McDonald was buying stolen goods from him, then reselling them, Homer tells a visiting reporter at Bath Institution, a medium security prison 20 km west of Kingston, Ont. "He and a friend came to the house where I was staying and were demanding money," he says. "Arguments broke out. I was tied up and threatened. In the end, I got free, and went out to the kitchen and shot the guy with a .22-calibre rifle."

Several months later, convicted of first-degree murder, Homer received the mandatory sentence - life imprisonment with no possibility of parole for 25 years. Now, he has served more than 20 years - long enough, he says, to recognize and tame the personal demons that turned him into an angry, out-of-control teenage killer. Having completed high school in prison, he is just one credit short of a university arts degree. He has a permanent relationship - enhanced by conjugal visits in the prison trailer - with a Kingston-area woman, and he has an 10-month-old son. Homer hopes to be out of jail completely by the end of the year, almost five years before the original 25-year minimum - thanks to a jury's recommendation based on the controversial "faint-hope" clause.

In May, 1993, more than 16 years after his conviction, Homer returned to Regina for a judicial review of his sentence as provided for under Section 745.6 of the Criminal Code. That is the much-maligned faint-hope legislation, an amendment passed in 1976 to give prisoners serving life sentences a glimmer of hope that they will get out before the mandatory 25 years. Under its provisions, murderers who have served at least 15 years of their sentence can appear before a 12-member jury to make a plea for earlier release, based on their character and their conduct in prison. Homer's claim to have turned his life around struck a chord with his jurors - they recommended to the National Parole Board that it consider him for immediate parole. Since then, Homer has had a series of temporary absences, up to three days at a time. And in November, he plans to ask the board for permission to live at a halfway house before full release. "When I was a teenager," he says, "I had no respect for money, no respect for property, no respect for people. I certainly don't think like I did back then. I've had a definite attitude change."

Perhaps, but many individuals and organizations - especially galled by the fact that some of Canada's worst serial killers enjoy the same right to ask for early release - vehemently oppose concessions to anyone sentenced to life imprisonment for murder. For three years, police associations, victims' groups, Reform party members, Independent MP John Nunziata and others have pressured the Chrétien government to repeal the early-release provisions of Section 745. The government responded in January, not with repeal but with amendments making it much more difficult for anyone convicted since then to win a jury review. The clause's opponents, however, remain unmollified. "As far as I'm concerned," says Calgary Reform MP Art Hanger, a former police officer, "the battle against Section 745 is going to continue."

Section 745 has not exactly opened the prison gates for Canada's brutal killers. From its passage until the end of June, 328 inmates convicted of first- and second-degree murder have become eligible to ask for a jury hearing. Of those, only 30 - less than 10 per cent - have so far actually found themselves out on the streets any earlier. Of that group, just three, according to parole board records, have got in trouble with the law again - one for armed robbery, another for carrying a concealed weapon and the third on a drug charge. Most murderers, recognizing the futility of their case, do not even ask for a review.

But there is another way of looking at the numbers, one that annoys Section 745's critics: of the 83 offenders who have appeared before a jury, fully 64 have secured a recommendation for earlier release. While 34 of those supposed winners have not yet achieved full parole, critics construe the numbers as a 77-per-cent success rate. And that causes Nunziata, one of the legislation's most active opponents, to call it not the faint-hope clause but the "sure-bet" clause.

The critics bristle over the fact that such notorious murderers as Clifford Olson, Ontario schoolgirl killer Paul Bernardo and New Brunswick serial killer Allan Legere can still - however remote their chance of success - apply for a hearing. Opponents of Section 745 are also concerned about the devastating effect that a judicial hearing can have on the families of a murder victim. For them, having to face a killer more than a decade and a half after the loss of a loved one can be emotionally searing. It also breeds feelings of betrayal by the justice system. "Life imprisonment doesn't mean life," says Darlene Boyd, 50, an Alberta woman who dreads the day that a man convicted in the 1982 sex slaying of her 16-year-old daughter, Laurie, applies for a hearing. "Every time that sentence is handed down, it's a lie."

Over the past two years, Boyd has delivered that message across the Prairie provinces at grassroots public meetings usually put together by victims' groups, anti-crime organizations or police associations. And Boyd says she meets like-minded westerners, who want Section 745 scrapped, everywhere she speaks. She organized the first of these meetings herself in January, 1996, in the town of Okotoks, 40 km south of Calgary, where Laurie was murdered. "I thought we'd get 50 or 60 people, and 600 showed up," she recalls. "It was a rally to raise public awareness about Section 745. We asked the question, 'Should life mean life?' and every person who came through the door that night said, 'Most definitely.' "

Hand in hand with such grassroots efforts are the Parliament Hill activities of victims' groups and police associations. The Canadian Police Association's annual meeting draws almost 200 rank-and-file officers to Ottawa each March. The officers devote one day to private lobbying sessions with every MP. Their goal: to convince government members of, among other things, the need for tougher sentences, tighter parole and the repeal of Section 745. "Our association," says Scott Newark, the Ottawa-based association's executive officer, "is becoming more involved in trying to get reforms in the criminal justice system."

Parliament adopted Section 745 in 1976 as part of a package of amendments to the Criminal Code that abolished capital punishment and redefined the penalties of murder. With the country's police chiefs lobbying hard for retention of the death penalty, the Trudeau Liberals ostensibly toughened life sentences for first-degree murder, providing no possibility of parole for 25 years. (Before then, killers who avoided the noose but received life sentences for the old offence of capital murder were being held, on average, for slightly over 13 years.) But many Liberals were concerned that first-degree murderers would lose any incentive to behave well in prison. Warren Allmand, now president of the Montreal-based International Centre for Human Rights and Democratic Development, was solicitor general at the time. He says he and others argued successfully for giving "lifers" some hope of getting out before 25 years - with the now-controversial jury review. Allmand says he is disheartened by what he calls the prevalence of public misconceptions about the clause. "I think the process has been totally distorted," he said. "Most people think it's an easy process. They don't realize how tough it is to get out even with 745."

It got even tougher in January, under the new amendments. For starters, anyone convicted of murdering more than one person since then is ineligible for a review. In addition, applications for a jury hearing are now vetted first by a superior court judge, who can reject them if they do not appear to have a reasonable chance of succeeding. Furthermore, at a hearing, an applicant now needs the approval of all 12 jurors to win a recommendation for early release - not just eight as the law had required. Big steps forward, say Section 745's opponents, but not yet enough. "I liken those changes to a 25-yard pass," says the police association's Newark, "as opposed to putting the ball in the end zone."

In Olson's case, he passed the 15-year mark last August, and launched his application for a review well before the amendments went into effect in January. Bernardo, Legere and other multiple murderers can still apply when they have served 15 years, because their convictions predate the new amendments. But now, with judges reviewing all applications, the chance of a multiple killer receiving a jury hearing has all but disappeared. "Our changes have considerably toughened up the act," says justice department spokesman Pierre Gratton, "and those not deserving of a judicial review will not get one."

Even before the amendments, the system did not offer any real hope to the worst offenders, say defence lawyers familiar with the process. "The ones the public is concerned about - the serial killers, the psychopaths, the dangerous offenders - they don't get out, nor should they," says Toronto lawyer Damien Frost.

But not even a jury recommendation of earlier release opens prison doors. Murderers invariably spend several more years working their way out. First, parole panels approve a series of escorted temporary absences, says Willie Gibbs, chairman of the National Parole Board. That lets an inmate out once or twice a month for several hours at a time, accompanied by a guard. If that first step goes well, the inmate can apply for unescorted leaves of up to 72 hours, usually to spend a weekend with family or close friends. Once he shows he can meet the conditions attached to temporary leaves - abstaining from drugs and alcohol, adhering to curfews, returning to prison on time - an offender may then be allowed to live temporarily at a halfway house. The final phase is full parole - living out of prison but reporting regularly to a parole officer. "If a guy has spent 15 years in prison," says Gibbs, "you have to introduce him to society slowly."

Behind all those safeguards, however, is the painful ordeal that the families of murder victims have to endure to set the early-release process in motion. Marie King-Forest, a Saskatoon teacher and grandmother, has faced two reviews since 1994 for the men convicted of killing her first husband, RCMP officer Brian King. In 1978, two Saskatoon teenagers, Gregory Fischer and Darrell Crook, forced the 40-year-old officer into the trunk of their car at gunpoint, drove to an abandoned location and shot him twice. The first jury decided that Fischer could apply for parole after 23 years instead of 25; the second denied Crook - who pulled the trigger - any reduction. "You can't find words to tell people how horrid it is to live through this again," said King-Forest, who broke down twice during a brief interview with Maclean's. "I want the law changed so other people don't have to go through the hell I went through."

Like her, the police association, the Ottawa-based Victims of Violence, the Reform party and others are still pressing for repeal of Section 745. They want courts to be able to impose sentences with no provision for early release. Displeased that multiple life sentences are now served concurrently - which means that even the worst serial murderer is now entitled to a parole review after 25 years - they want judges empowered to sentence multiple killers to consecutive terms, to be served one after another. And many are campaigning for the return of the death penalty. "We believe this is a sensitive, moral and ethical issue that the people should decide by binding national referendum," says Reform MP Deborah Grey, "and the politicians have to accept."

Inmates like Homer, who has spent his entire adult life behind bars, say the possibility of early release is the only thing that provides hope - and the motivation to change. "I thought for the longest time that I was never getting out of jail," he says. "So I created my own freedom by getting involved in drugs." Realizing that he had an opportunity to get out early "gave me a different attitude." Homer says he gave up drugs, pursued his education, re-established contact with his mother and two younger brothers, and began exploring his native roots. "I looked at what I could do to better myself," he adds.

For federal politicians, who could well find Section 745 back on the legislative agenda this fall thanks to Clifford Olson, there are no easy answers. There are, in fact, compelling arguments on both sides of the issue. "Tougher sentences and more jails are not the answers to crime," says Bruce Williams, a psychiatrist and the Anglican representative on the Ottawa-based Church Council on Justice and Corrections. On the other hand, victims like King-Forest deeply resent being forced by judicial reviews to confront the murderers who ruined their lives. "You try to close the door on the past with great big steel bars," she says, "and I don't think families should be dragged through this crap again." Much debated in 1976, amended in 1997, Section 745 of the Criminal Code still leaves many Canadians unconvinced that justice is being served.

Maclean's August 18, 1997