On May 27 the top court dismissed the Quebec Crown’s appeal from the Quebec Court of Appeal’s holdings below that the 2011 law unjustifiably violates the Charter’s s. 12 prohibition against cruel and unusual punishment, and that the shooter Alexandre Bissonnette’s six 25-year periods of parole ineligibility for the six life sentences he received for murdering six people in Quebec City’s Great Mosque in 2017 must be served concurrently, not consecutively: R. v. Bissonnette, 2022 SCC 23.
Bissonnette will therefore be eligible to apply for parole after 25 years, rather than after 150 years (had the six concurrent periods of parole ineligibility been stacked under s. 745.51) or after 40 years, as the original sentencing judge ordered.)
Chief Justice Richard Wagner
The ruling is expected to trigger appeals from those currently serving life sentences with consecutive parole ineligibility periods for multiple murders.
In particular, the top court stipulated (at para. 35) that “any offender who has been ordered under s. 745.51 Cr.C. to serve a parole ineligibility period of 50 years or more for multiple murders — whether the murders are first degree, second degree or a combination of the two — must be able to apply for a remedy.”
“While some of these offenders are no longer in the judicial system, the infringement of their right guaranteed by s.12 of the Charter is a continuing one, since they remain completely without access to parole,” Chief Justice Richard Wagner explained in his judgment for the unanimous court.
“Res judicata cannot prevent them from bringing applications to stop this continuing infringement of s.12 of the Charter,” he explained. “These individuals may therefore seek relief in the courts, including under s.24(1) of the Charter. Lastly, given that this court has confined its analysis to the imposition of ineligibility periods of 50 years or more, nothing prevents offenders upon whom consecutive ineligibility periods totalling less than 50 years have been imposed under the provision being struck down from alleging a continuing infringement of their constitutional right, provided that the infringement is proved in each case.”
Section 745.51 of the Code, controversially brought in by the previous Conservative government, provides that, in the event of multiple murders, a judge may, in addition to imposing a life sentence, order parole ineligibility periods, to be served consecutively, of 25 years for each murder.
“By stipulating that a court may impose consecutive 25‑year parole ineligibility periods, the impugned provision authorizes the infliction of a degrading punishment that is incompatible with human dignity,” Chief Justice Wagner said.
“Under this provision, a court has the power to sentence an offender to imprisonment for life without a realistic possibility of parole for 50, 75 or even 150 years,” he continued. “In other words, in the context of multiple first degree murders, all offenders to whom this provision applies are doomed to spend the rest of their lives behind bars, and the sentences of some offenders may even exceed human life expectancy.”
He held that “not only do such punishments bring the administration of justice into disrepute, but they are cruel and unusual by nature and thus contrary to s.12 of the Charter.”
“They are intrinsically incompatible with human dignity because of their degrading nature, as they deny offenders any moral autonomy by depriving them, in advance and definitively, of any possibility of reintegration into society,” the chief justice reasoned. “Sentences of imprisonment for life without a realistic possibility of parole may also have devastating effects on offenders, who are left with no incentive to rehabilitate themselves and whose incarceration will end only upon their death.”
He held that “Parliament may not prescribe a sentence that negates the objective of rehabilitation in advance, and irreversibly, for all offenders. This penological objective is intimately linked to human dignity in that it reflects the conviction that every individual has the capacity to reform and re‑enter society. For the objective of rehabilitation to be meaningful, every inmate must have a realistic possibility of applying for parole, at the very least earlier than the expiration of the minimum ineligibility period of 50 years stipulated in the impugned provision for cases involving first-degree murders.”
Chief Justice Wagner explained that “what is at stake is our commitment, as a society, to respect human dignity and the inherent worth of every individual, however appalling the individual’s crimes may be.”
He also stressed that “the conclusion that imposing consecutive 25‑year parole ineligibility periods is unconstitutional must not be seen as devaluing the life of each innocent victim.”
Everyone would agree that multiple murders “are inherently despicable acts and are the most serious of crimes, with consequences that last forever,” the chief justice emphasized. However, “this appeal is not about the value of each human life, but rather about the limits on the state’s power to punish offenders, which, in a society founded on the rule of law, must be exercised in a manner consistent with the Constitution.”
The chief justice concluded, “in the circumstances, this court has no choice but to declare s.745.51 Cr.C. invalid immediately. This declaration strikes down the provision retroactively to its enactment in 2011. The applicable law is therefore the law that existed prior to that date. This means that the respondent must receive a sentence of imprisonment for life without eligibility for parole for a total period of 25 years.”
The Supreme Court of Canada went on to acknowledge that “the respondent committed horrendous crimes that damaged the very fabric of our society. Fueled by hatred, he took the lives of six innocent victims and caused serious, even permanent, physical and psychological injuries to the survivors of the killings. He left not only families devastated but a whole community — the Muslim community in Québec and throughout Canada — in a state of anguish and pain, with many of its members still fearful for their safety today. And he left Canadians at large feeling deeply saddened and outraged in the wake of his heinous crimes that undermined the very foundations on which our society rests.”
Chief Justice Wagner noted that “sadly, this case is but one example of the crimes committed by multiple murderers that shock our collective conscience. Other examples include murders committed by sexual predators who place no value on the lives of their victims and who leave entire communities in a state of fear and terror until they are apprehended. So, too, is the case of terrorists who seek to destroy Canada’s political order without regard to the devastation and loss of life that may result from their crimes.”
The horror of such crimes, however, “does not negate the basic proposition that all human beings carry within them a capacity for rehabilitation and that, accordingly, punishments which fail to account for this human quality will offend the principles that underlie s.12 of the Charter,” Chief Justice Wagner said.
He also noted that all multiple murderers receive a minimum sentence of life in prison and are currently eligible for parole after 25 years in the case of first degree murders.
“Eligibility for parole is not a right to parole,” he emphasized. “Experience has shown that the [National Parole] Board generally proceeds with care and caution before making a decision as important as releasing multiple murderers back into society. The protection of the public is the paramount consideration in the Board’s decision‑making process, but the Board also takes into account other factors such as the gravity of the offence and its impact on victims. It, perhaps, provides a measure of solace to know that compelling evidence of rehabilitation will be demanded before the perpetrators of such crimes will be released on parole.”
The Supreme Court of Canada’s ruling opens the door for courts to roll back stacked eligibility periods totalling 50 years or more imposed on those convicted of more than one first- or second-degree murder, but also to Charter applications from those serving life sentences for more than one second degree murder whose parole ineligibility was set from between 25 and 50 years, said Eric Purtzki of Vancouver’s Fowler Blok, who with Alix Tolliday represented the intervener Independent Criminal Defence Advocacy Society.
Purtzki estimated (there is no official figure publicly available) that there are more than 20 murderers sentenced to life imprisonment for whom the judgment could be relevant.
Defence counsel will be concerned that those whose parole ineligibility exceeds 25 years have an opportunity to come before the courts as contemplated by the judgment, he suggested. “I think it represents that the courts are prepared to review these types of sentences, even though Parliament has the ultimate authority to enact these laws,” he told The Lawyer’s Daily. “They‘re going to carefully scrutinize these sentences in accordance with the constitution and s. 12 of the Charter, and ... I think it signals the importance of rehabilitation. Obviously it doesn’t have primary importance in the case of a multiple murderer, but there has to be some hope for release.”
Carly Peddle, Heinen Hutchison LLP
“Critically, for the first time, the Supreme Court articulated a fundamental connection between human dignity and the objective of rehabilitation in sentencing,” she said. “According to the court, human dignity is incompatible with the assumption that individuals are beyond reform.”
She predicted the court’s focus on human dignity “will certainly be of assistance in future challenges to sentencing provisions. At a minimum, the principles articulated in this case will ensure that a basic level of human dignity is protected in sentencing.”
Peddle added that Chief Justice Wagner “fundamentally, articulates the heart of Canadian sentencing law: that no one is beyond rehabilitation, no matter how heinous or vile their actions. Even in cases where the objective of rehabilitation is of minimal importance, rehabilitation remains an essential and valid objective that cannot be extinguished by Parliament. The court also made clear that judicial discretion cannot ‘save’ the provision, as the very nature of the provision ‘shakes at the very foundations of Canadian criminal law.’ The court explicitly rejects the Attorney General [of Quebec’s] position, calling it ‘retributivist’ and evocative of the idea of ‘an eye for an eye.’ ”
Peddle highlighted that in para. 47 “the court appears to recognize that the effectiveness of general deterrence is questionable. The court says that despite legitimate reservations about this objective, the certainty of punishment and the range of criminal sanctions can produce a ‘certain deterrent effect,’ although it is difficult to evaluate.”
A prepared statement from the office of the appellant Directeur des poursuites criminelles et pénales (DPCP) of Quebec states that it “acknowledges the importance of the decision rendered this morning by the Supreme Court regarding the sentencing for multiple murders. Out of the utmost respect, the DPCP won’t comment on this decision that is putting an end to the case. However, it should be noted that the prosecutors of the DPCP and the police forces of Quebec have actively pursued and led every legal proceeding up to the Supreme Court, thus demonstrating the capacity for the judicial system to conclude complex cases in the public’s best interest.”
The DPCP restated that “as of today, Alexandre Bissonnette remains imprisoned for life. If a conditional release was granted by the Parole Board of Canada one day, Alexandre Bissonnette would be subject to strict conditions and surveillance of a parole officer for the rest of his life.”
The Crown also called attention to the victims and their families, and the Muslim community whose collective consciousness is marked by the crime. “We praise their courage, their resilience and their dignity in this moment,” the prosecution office said. “This day marks for them the end of a long judicial process, but we are aware that it is not the end of their grieving and healing process.”
Timothy Danson, Danson Recht LLP
“There’s an opportunity here because what the Supreme Court of Canada has said today is that Parliament must leave a door open for rehabilitation ... to leave some avenue for an offender to repent and enter society in the appropriate circumstances and it’s the closing of the door, essentially forever, for all offenders upfront, regardless of a change of circumstances, that offends s. 12 of the Charter,” he remarked.
Having had limited time to review the judgment, Danson said he believes a “solution” could be to enact a new law that gives sentencing judges the discretion to increase parole ineligibility periods for those offenders convicted of multiple murders in such a way that is proportional to the offence and the offender, and the public interest to achieve a just and fit sentence, in a sentence which is reviewable by an appellate court. This would eliminate the unconstitutional required stacking of 25-year periods. “That’s one piece,” Danson suggested. “The second piece to this for consideration is that Parliament should then enact a [judicial review screening] provision,” somewhat analogous to s. 745.61 of the Criminal Code ... where an offender can apply to a superior court judge, and if there is a strong likelihood that the jury could recommend early release, then the judge will let that [parole application] process go forward.”
Thus, for example, a sentencing judge could impose a parole ineligibility of 35 years on a person who committed more than one murder, but a later judicial screening process would permit a parole application after 25 years “based on hard evidence of rehabilitation” that was placed before a superior court judge which showed that the offender should be relieved from the extra 10 years that were imposed a quarter- century earlier. “So the door is open for rehabilitation, but it’s going to be subject to judicial review, not [automatic] parole board review,” Danson explained. “To me that is a very, very easy solution to the door opened by the Supreme Court of Canada today.”
In the opinion of Mathieu St-Germain of the Calgary Police Service, who with Joël Dubois and Jason Fraser represented the intervener Canadian Association of Chiefs of Police, “although the ruling seems to carry retroactive effect, it does not purport to impose a ‘25-year cap’ of parole ineligibility on Parliament going forward in crafting sentencing policy for multiple murders.”
St-Germain also said the court seems to have addressed, in para. 86, concerns raised with respect to the “potential ripple effects” on other sentencing provisions of the Criminal Code — such as s. 745(1)(a) as it relates to the minimum 25-year parole ineligibility period for older offenders convicted of a single murder whose life expectancy would be surpassed by the 25-year ineligibility period.
“It will then be left for Parliament to determine, within the boundaries of the Charter, how the sentencing regime should properly reflect the value and loss of each human life in the sentencing of offenders who commit multiple murders,” explained St-Germain. “Parliament may wish to consider revisions to the Criminal Code regarding the discretion of sentencing judges in imposing sentence for mass murderers, or review the Corrections and Conditional Release Act in terms of potential statutory pre-conditions for granting parole to multiple murderers,” he suggested.
Université de Montréal law professor Stéphane Beaulac, a counsel with Dentons in Montreal, who with Miriam Cohen and Sarah-Michèle Vincent-Wright represented the intervener Observatory on National Security Measures, highlighted as worth reading Chief Justice Wagner’s careful analysis and thorough treatment of relevant international and comparative law. “It’s quite a lengthy part of the reasons for judgment,” he said, noting we’re “very happy” with it.
Beaulac also lauded the way the court handled a sensitive and politically controversial matter in a judgment that reflects on “tough on crime” justice policies, and the legitimate interests of murder victims’ families. The judges “stood up for judicial review, constitutional supremacy and the ... role of the court as the guard dog of the rule of law,” he said, noting the court’s ultrafast two-month turnaround of an indexed, 148-paragraph judgment.
“They bit the bullet fully and said — well I’m reading a bit into it — ‘If we cannot put our foot down strongly, unanimously, under the leadership of our chief justice, in this case, well we might as well go back to the Canadian Bill of Rights ... and actually have no teeth any longer,” Beaulac observed.
University of Calgary criminal law professor Lisa Silver told The Lawyer’s Daily she finds it striking that the court “is starting to take a cohesive approach to sentencing.”
Not only does the court reiterate the law to date on sentencing principles and objectives, but they are also expanding on the meaning of those objectives, Silver explained. “For instance, rehabilitation becomes not just an objective, but is also recognized as a valid and morally persuasive penological goal that permeates sentencing outcomes. The realistic possibility of rehabilitation ought not be dismissed in imposing sentence. Rehabilitation is weaved into the fabric of sentencing, even where it is not the primary focus.”
Moreover, Silver said the court recognized that the total absence of the possibility for rehabilitation when parole ineligibility periods are stacked into a “living death sentence” can create an inherently grossly disproportionate sentence that violates s. 12.
“The court did speak to retroactivity, and how individuals who are no longer before the court may apply for Charter relief, including those who may have received less than 50 years ineligibility,” Silver noted.
Simon Borys, Borys Law
“Despite the incredibly tragic circumstances of this case, the court’s decision can, in one sense, be described as hopeful,” Borys added. “A key theme throughout the decision is the idea that every offender, no matter how vile — to use the court's descriptor — still has the potential for rehabilitation, and is worthy of being given the opportunity to re-enter society as a law-abiding citizen,” he explained. “Ultimately, the court’s decision affirms that no one is beyond redemption.”
Harshi Mann of Toronto’s Ruby Shiller, who with Stephanie DiGiuseppe represented the intervener Canadian Civil Liberties Association (CCLA), said the court’s “powerful” decision “reaffirms that the fundamental rights guaranteed in the Charter apply to all individuals, even those who commit abhorrent crimes of hatred. Life imprisonment without the realistic possibility of parole ‘shakes the very foundations of Canadian criminal law.’ ”
“The effect of this decision will have an immediate impact on the ground,” Mann said. “It will influence plea negotiations and contested sentencing hearings for cases involving multiple murders. It will also have an immediate impact on individuals currently serving sentences with stacked parole ineligibility periods.”
Harshi Mann, Ruby Shiller
Mann said the CCLA argued that limits on the state’s power to punish should be guided by established principles of international human rights law which signal that life imprisonment without the possibility of review or release during an offender’s lifetime are inherently demeaning of human dignity. “The court generally agreed with this approach and considered international and comparative law in reaching its decision,” she remarked. “Specifically, the court noted the severity of Canada’s current regime, as compared to the approach taken at international law and in other countries where imprisonment without the possibility of parole is generally considered incompatible with human dignity.”
The chief justice said s. 12 of the Charter “guarantees the right not to be subjected to cruel and unusual punishment or treatment. In essence, its purpose is to protect human dignity and ensure respect for the inherent worth of each individual. This Court recently affirmed, albeit in a different context, that human dignity transcends the interests of the individual and concerns society at large. ... In this sense, the significance of this appeal extends well beyond its particular facts.”
He said s. 12 prohibits the state from imposing a punishment that is grossly disproportionate in relation to the situation of a particular offender and “from having recourse to punishments that, by their very nature, are intrinsically incompatible with human dignity.”
Here the challenged provision falls into the category of punishments that are cruel and unusual by nature, the chief justice held.
“All offenders subjected to stacked 25‑year ineligibility periods under s.745.51 Cr.C. are doomed to be incarcerated for the rest of their lives without a realistic possibility of being granted parole. The impugned provision, taken to its extreme, authorizes a court to order an offender to serve an ineligibility period that exceeds the life expectancy of any human being, a sentence so absurd that it would bring the administration of justice into disrepute.”
He reasoned that life imprisonment without a realistic possibility of parole “is intrinsically incompatible with human dignity. Such a sentence is degrading insofar as it negates, in advance and irreversibly, the penological objective of rehabilitation. This objective is intimately linked to human dignity in that it conveys the conviction that every individual is capable of repenting and re‑entering society. This conclusion that a sentence of imprisonment for life without a realistic possibility of parole is incompatible with human dignity is not only reinforced by the effects that such a sentence may have on all offenders on whom it is imposed, but also finds support in international and comparative law.”
The Supreme Court ruled that “to ensure respect for the inherent dignity of every individual, s.12 of the Charter requires that Parliament leave a door open for rehabilitation, even in cases where this objective is of secondary importance. In practical terms, this means that every inmate must have a realistic possibility of applying for parole, at the very least earlier than the expiration of an ineligibility period of 50 years, which is the minimum ineligibility period resulting from the exercise of judicial discretion under the impugned provision in cases involving first degree murders.”
The respondent Bissonnette was 27 on the evening of Jan. 29, 2017, when he went to the Great Mosque of Québec in Quebec City with two loaded firearms and shot the worshippers there. He seriously injured five people, and murdered six people, eventually pleading guilty on 12 counts, including six of first degree murder.
Before the Quebec Superior Court, he challenged the constitutionality of s. 745.51 which was introduced into the Criminal Code in 2011 via the Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act. It provided:
745.51 (1) At the time of the sentencing under s. 745 of an offender who is convicted of murder and who has already been convicted of one or more other murders, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and the recommendation, if any, made pursuant to section 745.21, by order, decide that the periods without eligibility for parole for each murder conviction are to be served consecutively.
The sentencing judge held that the provision, which in this case authorized parole ineligibility of 150 years, unjustifiably infringed the Charter’s ss. 7 and 12 guarantees of fundamental justice and ban on cruel and unusual punishment, and could not be upheld under s. 1 of the Charter as a reasonable and demonstrably justified limit in a free and democratic society.
Instead of striking down the provision, the sentencing judge applied the remedy of reading in, rewriting it to allow a court to impose consecutive periods of parole ineligibility of less than 25 years — in Bissonnette’s case the judge imposed 25 years plus 15 years, for a total of 40 years.
The Quebec Court of Appeal agreed that s. 745.51 is unconstitutional, but ruled the impugned provision had to be struck down in its entirety as reading in was not appropriate, given that the constitutional flaw went to the heart of the provision and the words the judge below read in were directly contrary to Parliament’s intention to create consecutive 25-year parole ineligibility periods for multiple murders.
As a consequence, the Appeal Court ordered a total period of parole ineligibility of 25 years for Bissonnette.
After setting out guidance for when “reading in” can be used as a remedy to rectify constitutionally defective legislation, Chief Justice Wagner agreed with the Quebec Court of Appeal that the trial judge below overstepped the limits of his judicial functions.
The trial judge found that because the inconsistency of s. 745.51 with the Charter “does not in any way affect the core of this provision,” reading in was an appropriate remedy as it would advance Parliament’s objectives, namely “to promote proportionality, ensure that multiple murderers get their ‘just deserts’ for their crimes, reinforce the objective of denunciation and protect society.”
But by broadening the discretion conferred on the courts, the trial judge undermined Parliament’s objective, the chief justice said. “He failed to consider the fact that the imposition of consecutive 25‑year ineligibility periods is directly related” to what Parliament’s objective was in enacting s. 745.51.
Thus “because it is impossible to conclude that Parliament would likely have passed the impugned provision with the modifications proposed by the trial judge, reading in was inappropriate,” Chief Justice Wagner ruled. “Parliament deliberately chose to exclude the approach adopted by the trial judge. By opting for reading in as a remedy, the trial judge thus made an inappropriate intrusion on Parliament’s powers. In the circumstances, this court has no choice but to declare s. 745.51 of the Criminal Code invalid.”
Interveners in the case included five attorneys general, as well as representatives of the defence bar, victims, police, civil libertarians, prisoners and the Muslim community.
Photo of Chief Justice Richard Wagner by Supreme Court of Canada Collection
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