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Supreme Court Chief Justice Richard Wagner in October, 2021. Chief Justice Wagner has at times been noticeably tough on crime, and has also written liberal rulings defending the importance of rehabilitation and expanding the right to bail.Adrian Wyld/The Canadian Press

Supreme Court Chief Justice Richard Wagner called the punishment of life without parole for mass killers “a death sentence by incarceration” at a hearing on Thursday, and expressed doubt that it is acceptable and lawful in Canada.

The court was hearing a sentencing appeal involving the hate-motivated murder of six Muslim worshippers at a Quebec City mosque in 2017. The issue is whether whole-life prison terms are by their nature cruel and unusual punishment, and therefore unconstitutional, much as torture or the lash would be.

Under a 2011 law – a major criminal-justice change in Stephen Harper’s 10 years as prime minister – Alexandre Bissonnette, the convicted mosque killer, could have faced a maximum wait of 150 years, or 25 years for each victim, before his first chance at parole. The Quebec Court of Appeal struck down the law, and ruled that Mr. Bissonnette would be eligible for parole in 25 years.

Supreme Court hearing in case of Quebec mosque shooter offers first test of federal life-without-parole law

Quebec prosecutors are asking for a 50-year ineligibility period, after initially seeking 150 years. They appealed the lower-court ruling to the Supreme Court. Four provinces and the federal justice department are also asking the court to uphold life without parole.

The court reserved judgment and is expected to take several months to deliberate.

Chief Justice Wagner, while he has at times been noticeably tough on crime, has also written liberal rulings defending the importance of rehabilitation and expanding the right to bail. He is a bellwether for the court on criminal law. While acknowledging the horrors of Mr. Bissonnette’s crime of hate and Islamophobia, he questioned – as did others – the necessity for the law, given that first-degree murder already brought a mandatory life sentence, with no possibility of parole for 25 years.

“What is missing?” he asked. “We already have a life sentence. Is there any more severe sentence than a life sentence?”

He and other judges also questioned the disappearance of rehabilitation, and whether whole-life sentences fit with the fundamental values of Canada’s criminal-justice system.

When a lawyer for Quebec’s prosecution service said that Mr. Bissonnette, who was 27 when he committed the mass killings, would be eligible for a kind of rehabilitation at 77 if given a 50-year parole ineligibility period, Chief Justice Wagner scoffed. Long-term offenders tend to die at around 60, he said. Mr. Bissonnette’s lawyer, Charles-Olivier Gosselin, called it “delusional” to think rehabilitation can happen after 50 years.

Much of the criminal-law agenda of Mr. Harper’s Conservative government (2006-15) has been struck down or softened by the Supreme Court. Making impoverished offenders pay a surcharge for criminal offences was declared cruel and unusual punishment by a 7-2 count in 2018. A mandatory minimum sentence of three years for illegal gun possession was ruled cruel and unusual by 6-3 in 2013. (In that case, Chief Justice Wagner, not yet chief, dissented, and would have upheld it.) The court also stopped the government from taking away judges’ ability to routinely give 1.5 or 2 days credit for each day served in prison while awaiting trial, in a 7-0 ruling in 2014.

Those cases all had to do with government attempts to reduce judges’ discretion over punishment. The life-without-parole law, by contrast, gives judges discretion over the penalty, with the proviso that they use 25-year increments when they go beyond the initial waiting period. That discretion is what makes the whole-life penalty constitutional, say Quebec, the federal government and others, including the families of Paul Bernardo’s murder victims, Leslie Mahaffy and Kristen French, who intervened in the case.

Still, Micah Rankin, a lawyer for the British Columbia Attorney-General, which endorses the law, conceded that a penalty of 100 years or more would be unconstitutional by its nature, in surpassing the human life span, thereby bringing the justice system into disrepute. Jean-François Paré, representing the Quebec Attorney-General, said no judge has ordered parole ineligibility of more than 75 years. The law has been used at least 18 times. Justin Bourque, who murdered three Mounties in New Brunswick at age 24, would be eligible for parole if he lives to 99.

Not every judge saw the sentencing law for mass killers the way Chief Justice Wagner appeared to.

What’s magic about 25 years?” Justice Russell Brown asked. While he was on Alberta’s appeal court, Justice Brown was part of a unanimous ruling that allowed the extradition of a terrorism suspect to face life without parole in the United States.

More than 50,000 people are serving life without parole in the U.S., and the death penalty is still on the books for 27 states, the federal government and the military. When Canada abolished capital punishment in 1976, it created a mandatory life penalty with first eligibility for full parole after 25 years, and a chance to seek early parole after 15 years.

Justice Michael Moldaver contrasted a depressed mother who kills her children then tries and fails to kill herself with hate-motivated killings.

“I would have thought there is a basis for Parliament to say as long as it is proportionate, you know what, judge, you can increase it up to five years for each one, to a max of x, whether it’s 40 years or whatever, that’s within your discretion. Is there something wrong with that? Is that automatically unconstitutional?”

Erin Dann, a lawyer for the Queen’s Prison Law Clinic, intervening in the case, replied: “It may well be that some offenders are so morally culpable that no punishment would be proportionate to the harm done. … The question is what can the state do without betraying its values and its commitment to human dignity.”

Danielle Robitaille, representing the B.C. Civil Liberties Association, also an intervenor, said the whole-life penalty offers “a kind of proportionality closer to the barbarism of an eye for an eye than the well-settled principles of our sentencing law encompassing rehabilitation, totality, restraint.”

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