Supreme Court Says Life Without Parole is Unconstitutional

Written on behalf of Barrison Law
Prison fence representing parole hearing decision

While mass shootings are few and far between in Canada, the ones that do happen are felt by the nation. With that, even years on it is difficult to forget the events that took place at the Great Mosque of Québec in January 2017 . The shooting took place at an evening prayer gathering of 46 people, ultimately taking the lives of six individuals and seriously injuring five others.

In R v Bissonnette, the Supreme Court of Canada weighed in on the shooter’s sentencing and ultimately struck down a provision of the Criminal Code of Canada. The decision and findings will be retroactively applied to cases dating back to 2011. The effect of this decision will ultimately change the fate of those previously convicted of crimes which resulted in multiple murders.

The purposes of sentencing in Canada

While the tragic events that took place remain the focus of many, at the root of this case is a discussion of the principles of sentencing. The question is, how do judges determine what sentence to impose on an accused person who is found guilty of a crime?

In Canada, the primary purpose of sentencing is to protect society and to encourage respect for the law. The Criminal Code outlines six objectives for sentencing:

  1. Denunciation;
  2. Deterrence;
  3. Separating offenders from society, if necessary;
  4. Rehabilitation;
  5. Reparations to victims or the community; and
  6. Promoting a sense of responsibility in offenders.

Sentences may seek to uphold one or more of these objectives, however tThe importance of each of these objectives differs on a case-by-case basis, with consideration of both the nature of the crime and the characteristics of the offender.

The courts must also ensure that the sentence ordered is proportional. In other words, the sentence imposed must be enough to denounce or deter the offender, but it cannot exceed “what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence.” This idea of proportionality is an integral component of the rights guaranteed by section 12 of the Canadian Charter of Rights and Freedoms.

The right not to be subjected to cruel and unusual treatment protects human dignity

Section 12 of the Charter protects our right to not be subjected to “cruel and unusual” punishment or treatment. This right exists to ensure that the government is respecting the human dignity and the inherent worth of each person.

If a sentence or a punishment is imposed that is either disproportionate to the offence that has taken place, or that is otherwise incompatible with human dignity, it is acting against this Charter-protected right.

The Crown asked for 150 years parole ineligibility

On the evening of January 29, 2017, Alexandre Bissonnette burst into the Great Mosque of Québec and opened fire with a semi-automatic rifle and a pistol. He pled guilty to 12 charges against him, which included six counts of murder in the first-degree. His sentence was imprisonment for life. The Crown asked for the application of section 745.51 of the Criminal Code to impose a consecutive sentence totalling 150 years without parole.

A provision in the Criminal Code allowed “stacked” sentencing

Section 745.51 of the Criminal Code was first introduced in 2011 through the Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act. The provision makes it possible for judges to impose consecutive sentences for cases that involve multiple murders. In other words, sentences would be served back-to-back rather than concurrently, sometimes referred to as a “stacked” sentence. For example, for first-degree murders, a convicted offender could spend upwards of 50 years in prison without eligibility for parole. Stacked sentences, in theory, could span upwards of 150 years. Since Canada no longer has the death penalty or corporal punishment, this is the most severe punishment that may be imposed.

What is Parole?

In simple terms, parole is the transition period between incarceration and fully re-entering the community. It is also called a “conditional release” because, although it is served outside in the community, the offender is still monitored by a Correctional Service of Canada parole officer and must adhere to certain conditions. If these conditions are not met, the Parole Board of Canada is able to revoke parole and send the offender back to prison.

Trial and appeal courts agree on unconstitutionality, disagree on how to handle it

The trial judge in R v Bissonnette ruled that the stacked sentencing provision was unconstitutional as it infringed section 12 of the Charter, as well as section 7 concerning the right to life, liberty, and security of the person. The trial judge re-interpreted the provision, or “read in,” so that courts could have the discretion to choose the length of the additional period of parole ineligibility, which could fall short of 25 years. In this instance, the court ordered Bissonnette to serve one 25-year sentence of parole ineligibility for the first five counts which he was convicted on. For the sixth count, the court ordered an additional 15 years of parole ineligibility, for a total of 40 years in prison without parole.

Bissonnette appealed the decision to the Quebec Court of Appeal. The Court of Appeal declared the stacked sentencing provision invalid and unconstitutional for breaching sections 12 and 7 of the Charter. However, the Court disagreed with the trial judge’s decision to reinterpret the provision, and instead struck it down. Bissonnette’s sentence was reduced to just 25 years in prison, after which he would be eligible to apply for parole.

Every offender must have a realistic possibility of applying for parole

The Supreme Court of Canada dismissed a subsequent appeal and agreed with the Quebec Court of Appeal, ruling that section 745.51 allows the imposition of a sentence where there is no realistic eligibility of parole, which is “intrinsically incompatible with human dignity” since parole ineligibility is a punishment in itself. Parole ineligibility also forms part of furthering sentencing objectives of denunciation and deterrence, therefore, stacked sentences only increase the punishment a disproportionate amount.

Another important point made by the Court was that the sentencing principle of rehabilitation is incompatible with the penological objective of the stacked sentencing provision. This objective is crucial to the sentencing regime as it acknowledges that any person convicted of an offence is “capable of repenting and re-entering society.” After determining the stacked sentencing provision was incompatible with section 12 of the Charter, it was deemed unconstitutional and no section 7 analysis needed to take place.

The Court held that it is imperative that a convicted offender be provided the opportunity for rehabilitation under the Charter right not to be subjected to cruel and unusual punishment or treatment, even where the objective of rehabilitation is not of primary importance. Every individual must have a realistic possibility of applying for parole within a period that is less than 50 years.

High profile cases that will be affected by this decision

The retroactive application of this ruling will impact other high-profile cases, including Alek Minassian, whose sentencing had been delayed in anticipation of this decision, who will be eligible for parole after 25 years in lieu of the once-possible 250 years. This case will also reduce Justin Bourque’s parole ineligibility by 50 years.

Contact the Experienced Lawyers at Barrison Law for Skilled Criminal Defence Representation

The criminal defence lawyers at Barrison Law understand the complexity of the principles of sentencing and the serious consequences that can arise if they are not fairly considered. Our experienced team of lawyers advocate for clients at every stage of the process for serious criminal offences, including murder/manslaughter and sentencing. For your convenience, we offer 24-hour phone service and a confidential consultation. To determine how we can best assist you, call us at 905-404-1947 or reach out online.