All mass murderers sentenced to life without parole under a 2011 law will now be entitled to a chance at release after serving 25 years, as a unanimous Supreme Court of Canada ruling has struck down the country’s toughest punishment.
There are at least 12 such convicted murderers, including men who killed Mounties, small children and senior citizens.
The Supreme Court ruled that sentencing mass killers, including terrorists, to whole-life sentences is cruel and unusual punishment, just as whipping them would be. It is therefore unlawful under the Charter of Rights and Freedoms.
The ruling came in the case of Alexandre Bissonnette, who killed six Muslim worshippers at a Quebec City mosque in 2017. He will now be eligible for parole after serving 25 years. So will Alek Minassian, who killed 10 people on Toronto’s Yonge Street in a van rampage in 2018, and whose sentencing had been delayed, pending the Supreme Court decision.
The court made its ruling retroactive to 2011, when the Conservative government of Stephen Harper authorized judges to add together parole waiting periods of 25 years, if they wished, for each life taken. (Quebec prosecutors had initially asked for 150 years of parole ineligibility for Mr. Bissonnette.) The rule of law, the court said, will not permit the continued infliction of cruel and unusual punishment.
The result: Mass killers facing life without parole have a clear right to have their waiting period for a parole hearing reduced to 25 years, the court said. That includes Justin Bourque of New Brunswick, who killed three Mounties at 24 and was sentenced to wait till age 99 for a parole hearing.
Before 2011, the mandatory penalty for first-degree murder was life in prison with first chance at full parole after 25 years (15 years was possible for some but that was ended in 2011, too). In 1976, Canada abolished the death penalty and established the mandatory penalty. The country now returns to life with 25 years before parole eligibility begins for first-degree murder, and life with a chance at parole at 10 to 25 years for second-degree murder.
In total, 25 mass killers have received parole waiting periods beyond 25 years under the 2011 law, according to research by law professor Adelina Iftene, of Dalhousie’s Schulich School of Law. Eleven of those 25 received waiting periods of 50 years or more; they can apply to a court to get them reduced to 25. A 12th received 45 years of ineligibility, at age 46, and would be in line for the reduction to 25 years. Anyone whose waits are under 50 but over 25 (as allowed for when at least one of the murders is second-degree) can apply but would need to show that the sentence would effectively last for the rest of their life.
“A significant number of people are going to head to court,” Prof. Iftene said, adding that the ruling is in line with international human-rights standards and was “a great day for justice.”
The Supreme Court ruling was a powerful evocation of Canada’s moderation in sentencing, as compared to the approach of the United States. In essence, it reverses that country’s approach: The U.S. Supreme Court has upheld the death penalty, and whole-life sentences are deemed a less drastic alternative (56,000 people are serving such terms); in Canada, whole-life sentences are forbidden and, by extension, the death penalty is not allowed.
Also unlike the United States, the ruling showed a Supreme Court where party of appointment was irrelevant on an issue of core values. The five judges appointed by a Conservative, Mr. Harper, joined with the four chosen by a Liberal, Prime Minister Justin Trudeau.
Chief Justice Richard Wagner, who tends to be relatively quiet during hearings, wore his heart on his sleeve when the Bissonnette case was before the court two months ago, calling the punishment a “death sentence by incarceration.” In the 9-0 ruling, he wrote the Bissonnette murders were “of unspeakable horror and left deep and agonizing scars” on the Muslim community and Canada as a whole.
But he said government must always “leave open the door” to the possibility of personal change, and rehabilitation. Life without hope of parole “shakes the very foundations of Canadian criminal law,” deprives individuals of autonomy and “is incompatible with human dignity,” he wrote.
At the same time, however, the court left the door open to government rewriting the law, and giving judges permission to extend the parole ineligibility period somewhat beyond 25 years.
The Justice Department under the Liberal government had asked the Supreme Court to uphold the law. Justice Minister David Lametti declined on Friday to say whether he would consider extending the length of parole ineligibility for mass killers.
“I want to acknowledge the hurt and anger that today’s decision may rekindle among all the victims of the horrific attack in Quebec City, especially survivors, families and friends, and the Muslim community in Quebec and across the country,” he said in an e-mail statement to The Globe and Mail.
He said the government will respect the decision and “carefully review its implications and the path forward.”
Nusaiba Al-Azem, a lawyer for the National Council of Canadian Muslims, which intervened in the case, declined in an interview to express a view on the decision to disallow life without parole.
“I think this decision is a painful one for a lot of people in the Muslim community. It’s going to be looming over people’s heads now,” she said, as parole hearings arrive one day for Mr. Bissonnette. She said the families of the victims were not speaking to reporters on Friday.
Charles-Olivier Gosselin, a lawyer for Mr. Bissonnette, said his client and his client’s family are relieved he will have an opportunity to prove he deserves a second chance.
“It will be difficult and he knows it. He will have to really improve himself for the board to really have confidence in his ability to be in our society, under conditions,” he said.
Timothy Danson, a lawyer who represented police groups and the French and Mahaffy families, whose daughters were murder victims of serial rapist Paul Bernardo in the 1990s, said that while he would have liked a different outcome, “I actually think it’s a powerfully written decision, which highlights the quintessential essence of the humanity and moral values of Canadian society.”
He said he would like to see the federal government allow judges to give longer periods of parole ineligibility, within the parameters set by the court.
Mary Campbell, a lawyer who is a former director-general in the Public Safety Department and was involved in the writing of the parole-stacking law, said the Harper government was trying to introduce a death penalty by another means.
“Really, what the Harper government wanted to do was reinstate the death penalty. They realized, well, they could achieve almost the same effect by adding up parole ineligibility,” she said.
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