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Supreme Court of Canada strikes down ‘absurd’ parole ineligibility law

  • June 15, 2022
  • Clayton Rice, Q.C.

On January 29, 2017, Alexandre Bissonnette walked into the Great Mosque of Quebec in Quebec City, Canada, armed with a semi-automatic rifle and opened fire. He killed six people and injured five others. He pleaded guilty to six counts of first degree murder and was sentenced to life imprisonment without eligibility for parole until he had served forty years. The Quebec Court of Appeal unanimously declared the law under which his parole ineligibility period was fixed to be unconstitutional and ordered that he serve a twenty-five year parole ineligibility period on each count to be served concurrently. The Crown appealed. Here’s the story.

1. Introduction

In 1976 the Parliament of Canada abolished the death penalty and replaced it with a mandatory minimum life sentence for two categories of murder, first degree murder and second degree murder. For first degree murder, the parole ineligibility period was set at twenty-five years irrespective of the number of victims. For second degree murder, the parole ineligibility period varied from ten to twenty-five years. There was no provision in the 1976 amendments to the Criminal Code for the imposition of consecutive parole ineligibility periods in cases involving multiple murders. The mandatory twenty-five year ineligibility period for first degree murder was widely viewed at the time as a concession to proponents of the death penalty. In 2011 Parliament further amended the Code by introducing s. 745.51(1) empowering trial judges, in cases of multiple murders, to “decide that the periods without eligibility for parole for each murder conviction are to be served consecutively.” The question thus arose whether the imposition of consecutive parole ineligibility periods violated the constitutional prohibition against cruel and unusual punishment in s. 12 of the Charter of Rights and Freedoms.

2. Judicial History

In the Quebec Superior Court, the prosecutor had sought a parole ineligibility period of 150 years, twenty-five years for each murder to be served consecutively. The trial judge concluded that consecutive ineligibility periods of twenty-five years each would violate the prohibition against cruel and unusual punishment and held that such sentences are grossly disproportionate and incompatible with human dignity. (here) Applying the doctrine of “reading in” he ordered that the twenty-five year ineligibility period on the first five counts be served concurrently and that fifteen years be served consecutively on the sixth count for a total of forty years. The sentence was set aside in a unanimous opinion of the Quebec Court of Appeal on the basis that the trial judge erred by arrogating the discretion to reformulate s. 745.51 and ordering the defendant to serve a forty-year parole ineligibility period that had no basis in law. In the analysis of s. 12 of the Charter, the panel concluded that the imposition of a parole ineligibility period that exceeds the life expectancy of any human being is degrading because of its absurdity and is therefore incompatible with human dignity. (here)

3. Cruel and Unusual

On May 27, 2022, the Supreme Court of Canada released the opinion in R. v. Bissonnette unanimously dismissing the Crown’s appeal and affirming the ruling of the Quebec Court of Appeal. “All offenders subjected to stacked 25-year ineligibility periods […] are doomed to be incarcerated for the rest of their lives without a realistic possibility of being granted parole,” wrote Chief Justice Richard Wagner, at para. 7. “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.” (here) Here are three takeaways from the court’s conclusion that stacked ineligibility periods are cruel and unusual by nature.

  • A sentence of imprisonment for life 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. (para. 8)
  • This Court recently stated that the purpose of s. 12 is “to prevent the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment. It is meant to protect human dignity and respect the inherent worth of individuals” […] Although dignity is not recognized as an independent constitutional right, it is a fundamental value that serves as a guide for the interpretation of all Charter rights […] Generally speaking, the concept of dignity evokes the idea that every person has intrinsic worth and is therefore entitled to respect […] This respect is owed to every individual, irrespective of their actions. (para. 59)
  • [A] punishment may infringe s. 12 for two distinct reasons, either because it is grossly disproportionate in a given case or because it is intrinsically incompatible with human dignity. Where both prongs of the protection of s. 12 are in issue in the same case, the analysis of the nature of the punishment must precede that of gross disproportionality. If the punishment that might be imposed is cruel and unusual by nature, and hence intrinsically incompatible with human dignity, it will be unnecessary – and I would say pointless – to consider whether it is grossly disproportionate in a given case, because a punishment that is cruel and unusual by nature will “always be grossly disproportionate” […] This punishment is degrading in nature in that it presupposes at the time of its imposition, in a definitive and irreversible way, that the offender is beyond redemption and lacks the moral autonomy needed for rehabilitation. This alone justifies the conclusion that this punishment is cruel and unusual by nature. (paras. 69 and 81)

Chief Justice Wagner went on to consider the law in various European countries that have review mechanisms accessible to life prisoners following a minimum ineligibility period shorter that the one in Canadian law. He also drew upon the principles of international law that consider life imprisonment without eligibility for parole to be incompatible with human dignity. I will comment on some aspects of international law.

Human dignity has been the “central focus” in the protection of human rights and the development of international humanitarian law since the end of World War II. The preamble to the Charter of the United Nations is grounded in the reaffirmation of faith in human rights and “the dignity and worth of the human person”. (here)  And the International Covenant on Civil and Political Rights, ratified by Canada in 1976, reiterates that the enumerated rights “derive from the inherent dignity of the human person”. (here) Although a preamble is not binding law in Canada, Chief Justice Wagner specifically stated, at para. 99, that the preamble to the International Covenant “does shed light on the way in which human dignity is understood in relation to human rights, that is, as a value that underlies the recognized rights rather than as a right in itself.” (here)

The positioning of dignity in the pantheon of rights constitutionally protected by Charter jurisprudence in Canada is consistent with the broader principle of international law. Although not considered by the Bissonnette court, it is important to emphasize that the Universal Declaration of Human Rights also recognizes “the inherent dignity” and “inalienable rights” of all members of the human family as the foundation of “freedom, justice and peace in the world”. (here) Proclaimed by the United Nations General Assembly in Paris, France, on December 10, 1948, the preamble acknowledged that “disregard and contempt for human rights have resulted in barbarous acts that outraged the conscience of mankind” and, specifically in Article 5, proclaimed the universal standard that no one shall be subjected to “cruel, inhuman or degrading treatment or punishment.”

The Bissonnette opinion reaffirmed, at paras. 101-2, that international law, such as the Rome Statute of the International Criminal Court, is a relevant source of jurisprudence insofar as “it recognizes the need to give offenders, including those who have committed the most serious crimes, an opportunity for rehabilitation.” The Rome Statute provides for a mechanism to review sentences imposed by the International Criminal Court for serious crimes of concern to the international community such as genocide, war crimes and crimes against humanity.

4. Judicial Restraint

The Supreme Court’s consideration of an appropriate remedy implicated the doctrine of judicial restraint that generally favours a narrowly tailored ruling to avoid unnecessary resolution of broader questions although the doctrine is not explicitly referenced in the opinion. The crux of the decision on remedy focused on the parliamentary debate which showed Parliament’s intention to authorize the courts to impose consecutive ineligibility periods in blocks of twenty-five years. Chief Justice Wagner held that the trial judge “overstepped the limits of his judicial functions” when he used the “reading in” technique to broaden his discretion and thereby undermined Parliament’s objective. “The interpretation urged by the trial judge was in fact specifically rejected by Parliament,” wrote the Chief Justice, at para. 132. “An amendment to the bill had been proposed […] Despite that proposal, Parliament opted for ineligibility periods with a fixed length of 25 years each, leaving no room for tailoring by a court.” It was impossible to conclude that Parliament would likely have passed the provision as modified by the trial judge and, by opting for “reading in” as a remedy, the trial judge made an inappropriate intrusion on Parliament’s powers. A declaration striking down the unconstitutional provision was therefore the least intrusive alternative.

5. Conclusion

The declaration by the Bissonette court is retroactive. The applicable law is therefore the law that existed prior to the amendment in 2011 which will affect various cases currently pending before the courts. (here) Toronto lawyer, Stephanie DiGiuseppe, who argued the case on behalf of the intervener Canadian Civil Liberties Association, described the ruling as a reaffirmation of human dignity, the keystone of Canada’s penal system. “The Canadian justice system is not a vengeful system and we should not allow those who commit heinous offences to force our society down to their level, which is exactly what a retributive model of justice threatens to do,” she told the Toronto Star. “This is a victory for Canada’s long-term commitment to human rights and to Canada’s vision for a humane and compassionate society.” (here)

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