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Criminal - Sentencing - 'Faint Hope' [CCC 745.6]. R. v. Joseph
In R. v. Joseph (Ont CA, 2026) the Ontario Court of Appeal considered the CCC 745.6 'faint hope' ['Imprisonment for Life - Application for judicial review'], and related judicial screening:1. STANDARD OF REVIEW
[25] A screening decision under s. 745.6 of the Code is discretionary. Reasonable judges may disagree on whether the standard has been met. It follows that such decisions attract considerable deference on appeal. As was put in R. v. Atkins, 2022 ONCA 709, at para 4: “[a]s long as the application judge did not materially misapprehend the evidence, and considered the applicable principles, the result will stand up under appeal unless that result falls outside of the broad range of reasonableness”.
2. THE NATURE OF FAINT HOPE APPLICATIONS
[26] The Criminal Code prescribes a procedure for those convicted of certain offences who seek a reduction in their parole ineligibility period. While the decision is that of a jury, there is no automatic right to a jury hearing. Rather, the Code contemplates that a judge of the Superior Court of Justice, designated by the Chief Justice, will assess the merits of the case and determine whether a jury should be empaneled. While the legislation, as originally enacted, did not contemplate judicial screening, that changed over time, as did the test to be applied by the judge screening the application.
[27] At both the time of the appellant’s offence, and his conviction, s. 745.61 provided that a judge screening an application was to direct a jury hearing if the application had “a reasonable prospect” of success. By virtue of amendments made in 2011, the standard was elevated, requiring an offender to demonstrate a “substantial likelihood” of success as a pre-condition to a jury hearing. The 2011 amendments also abolished “faint hope” applications for those who committed their offences after the amendments became law.
[28] By including a judicial screening mechanism, Parliament sought, among other things, to spare victims’ families the agony of participating in unnecessary or frivolous hearings: R. v. Dell, 2018 ONCA 674, 364 C.C.C. (3d) 419, leave to appeal refused, [2018] S.C.C.A. No. 389, at para. 20.
[29] Since this Court’s decision in Dell, it has been recognized that an applicant is constitutionally entitled to the screening standard that was in place at the time of the offence: see also R. v. Liu, 2022 ONCA 460, at para. 6. In recognition of this, and given that Malcolm’s murder occurred in 2007, the application judge applied the pre-2011 standard that asked whether the appellant’s application had a reasonable prospect, rather than a substantial likelihood, of success.
[30] The screening application is in writing. No viva voce evidence is heard. The judge is to assess the written material based on the statutory criteria set out in ss. 745.61(2) and 745.63(1):(a) the character of the applicant;
(b) the applicant’s conduct while serving the sentence;
(c) the nature of the offence for which the applicant was convicted;
(d) any information provided by a victim at the time of the imposition of the sentence or at the time of the hearing under this section; and
(e) any other matters that the judge considers relevant in the circumstances. [31] As was stated in R. v. Jenkins, 2014 ONSC 3223, 310 C.C.C. (3d) 248, at para. 46, the judge who screens an application is not actually predicting what a jury will or will not do:It is always open to the jury, as a matter of law, to allow an application. This flows from the breadth of the jury’s discretion. The question for the screening judge is not whether it is open to the jury to reduce parole ineligibility. That option is available in every case. Nor is the question what a jury will actually do in a given case. That requires a level of prescience that no judge can claim. What we are really asking as judges is whether a jury should allow the application. It remains open to a jury in any case to allow an application, but Parliament has stemmed the tide of cases that will make it to that stage. It has built a judicial dam at the front end of the process.
[32] If the case does not pass the screening threshold, the application is dismissed without a jury hearing. The judge must determine whether the offender is entitled to bring a future application and, if so, when. A new application cannot be commenced for at least five years under the current provisions but the application judge in this case left open the possibility that the appellant could re-apply in two years, because the provisions in force at the time of the appellant’s offence permitted this. The screening decision may be appealed by the applicant or by the Attorney General under s. 745.62 of the Code.
[33] If the case passes the screening threshold, it is referred to a jury for a hearing under ss. 745.61(5) and 745.63 of the Code. The jury must determine whether there should be a reduction in parole ineligibility, based on consideration of the five criteria listed above. Any decision to reduce the period must be unanimous. If the jury votes unanimously for a reduction, it may recommend a lesser period of parole ineligibility (by a vote of not less than two-thirds of the members of the jury) or terminate the period of parole ineligibility. If the jury declines to reduce the period, it may determine whether a new application can be brought (not sooner than five years or, in relation to offenders convicted of offences committed prior to the 2011 amendments, not sooner than two years) and if so, when. The jury’s decision is final; it is not subject to review: Dell, at para. 81; Jenkins, at para. 12.
[34] If the jury reduces the period of parole ineligibility, the offender may then apply for parole on or after the new parole eligibility date.
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[40] The appellant further argues that the application judge erred in relying on psychological reports that estimated a 31 percent chance that the appellant would be reincarcerated within a year, if released, and a 17 percent chance that he would be involved in violent recidivism within 7 years of release. It is not unusual for institutional records to contain the results of such testing: see e.g. Jenkins, at paras. 45-47; R. v. Campbell, 2026 ONSC 1068, at para. 42. The appellant argues that these results needed to be explained by viva voce evidence. However, screening applications proceed in writing and do not contemplate the receipt of oral testimony. In any event, the application judge properly saw these results as relevant but not dispositive. They were a part of the global picture presented by the appellant at the time of the application.
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4. NO ERROR IN THE APPLICATION OF THE SCREENING STANDARD
[43] The appellant argues that the application judge applied too stringent a standard when screening his application, because she relied on the decisions in R. v. Gayle, 2013 CanLII 57631 (Ont. S.C.) and R. v. Banwait, 2019 ONSC 3026. The appellant says that these cases, which pre-dated Dell, applied the higher screening standard of “substantial likelihood” of success. The appellant submits that, because the application judge relied on these authorities, she improperly imported a higher standard into the analysis.
[44] The application judge referred to these authorities for the proposition that “a great degree of change must be seen in the offender to justify a departure from the normal terms of the legislative sentence imposed”. This proposition is unrelated to the screening standard. The point taken from Gayle, and repeated in Banwait, was that the jury might look for a greater degree of change in cases involving particularly callous or brutal murders. This is a self-evident proposition that flows logically from the direction in the Code to consider the nature of the offence for which the individual was convicted.
[45] All murders carry a significant level of moral blameworthiness. The intentional killing of a human being is, by its nature, a crime attracting serious opprobrium. The level of blameworthiness increases where, as here, the killing qualifies as first degree murder, either because of planning and deliberation, or because it was committed during a crime of domination, such as forcible confinement.
[46] Even within this global category of significant criminality, there are gradations of seriousness.
[47] The application judge recognized this. The appellant was found guilty of a first degree murder that was committed over a $30 drug debt. She found that this was a particularly callous crime, that demonstrated a “staggering” lack of morality. It was against this backdrop that she found that that a jury might look for “a great degree of change” before reducing the parole ineligibility period.
[48] This did not result in the application of the wrong screening standard. To the contrary, the application judge made it clear that she was applying the correct standard. In the very same paragraph in which she cited Gayle and Banwait, she observed that: “[t]he court must determine whether the applicant has sufficiently changed such that the applicant has satisfied the court on the balance of probabilities that there is a reasonable prospect that a jury would unanimously reduce his parole ineligibility period” (emphasis added).
[49] This ground of appeal must fail.
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