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The toughest punishment in Canada’s criminal-justice system could be shut down by the Supreme Court on Friday, leaving Alexandre Bissonnette, who killed six Muslim worshippers at a Quebec City mosque, and Alek Minassian, who killed 10 pedestrians in Toronto, eligible for a parole hearing after 25 years.

The punishment is life without parole, in common use in the United States, but unknown in Canada until 2011, when the Conservative government led by prime minister Stephen Harper gave judges the authority to extend the wait for parole beyond the human life span.

Since 1976, when Canada banned the death penalty, first-degree murder has meant a mandatory life sentence, with a wait of 25 years for a parole hearing. (A hearing at 15 years was possible for some murderers, but that ended, also in 2011.) The Harper government allowed judges to add the 25-year periods together, one for each planned, deliberate killing. The government said that each life lost deserved recognition.

The court heard a constitutional challenge to whole-life sentences in Mr. Bissonnette’s case just two months ago; on average, rulings arrive 6.7 months after hearings. The prompt scheduling suggests the nine judges did not find such sentences to pose a difficult legal question. The sentencing of Mr. Minassian in a lower court has been delayed pending this week’s Supreme Court decision on whether life without parole violates the Charter of Rights and Freedoms. Both were in their 20s when they committed multiple murders.

The question for the Supreme Court is whether stacking parole waiting periods together is cruel and unusual punishment – not merely excessive, but grossly disproportionate in a way that shocks the conscience of Canadians. A second constitutional question is whether it violates the basic principles of the criminal-justice system protected by the Charter’s section on life, liberty and security of the person. A parole hearing does not necessarily mean release; decisions are based on perceived dangerousness.

“This is really not a case about what an offender deserves, it is a case about the legal limits on state punishment,” Lisa Kerr, a law professor at Queen’s University in Kingston, told The Globe and Mail.

Supreme Court casts doubt on steeper sentence for mass killings

Family members of sex-killer Paul Bernardo’s victims urged the court to look at it from another viewpoint. “It is indescribable to explain the pain and anguish victims experience when they learn that the period of parole ineligibility for an offender convicted of multiple murders is the same as an offender convicted of one murder,” said lawyer Tim Danson, who intervened in the case on behalf of relatives of homicide victims and police groups.

In Mr. Bissonnette’s case, the Quebec attorney-general initially asked for 150 years. Mr. Minassian would be ineligible for up to 250 years for his 2018 rampage in a van. Judges have stacked parole periods in at least 18 cases of mass killings, with the longest period being 75 years. Mr. Bissonnette’s case was the first one in which an appeal court ruled the law unconstitutional. Quebec prosecutors appealed that ruling to the Supreme Court.

The judge who presided over Mr. Bissonnette’s trial, Quebec Superior Court Justice François Huot, found the law unconstitutional in 2019 and gave him a 40-year wait. The Quebec Court of Appeal said the law allowed only for increments of 25 years and ruled it unconstitutional. It said even international law for war crimes provides for the possibility of parole after 25 years. (Canada is a signatory to this law, known as the Rome Statute.)

The vehemence of the appeal court’s 3-0 ruling in 2020 would be hard to overstate. “Odious and degrading,” “absurd,” “an attack on human dignity” were among its descriptions. It likened life without parole to torture, the death penalty or the lash, as punishments that are beyond the pale in Canada.

Four provinces asked the court to uphold the law. So did the federal justice department, under the Liberal government. All argued that the law should be upheld because it allows judges the discretion to use it in the appropriate cases.

But several Supreme Court judges challenged that notion during the hearing in March. Adding even one extra 25-year increment means no release for 50 years. Chief Justice Richard Wagner said long-term offenders tend to die around 60. He called the law “a death sentence by incarceration.”

Justice Huot said the date of the mosque attack, Jan. 29, 2017, “will forever be written in blood in the history of this city, this province and this country.” Mr. Bissonnette was 27, on leave from work because of anxiety and immersing himself in terrorism and gun websites. A federal announcement that it would increase the number of refugees admitted into Canada prompted him to act. Moments after, according to the appeal court, he began to doubt the legitimacy of his actions and called 911.

He pleaded guilty to the attempted murder of 35 people, in addition to the six he killed. Experts in forensic psychiatry testified he was not a psychopath and his risk of reoffending was either not significant or moderate. A Crown expert said his potential for rehabilitation was difficult to assess and he suspected a borderline personality disorder. With a great deal of effort and therapy, he could one day re-enter society without posing a risk, the Crown expert said.

Quebec’s appeal court said judges aren’t in a position, at the time of sentencing, to know the likelihood of rehabilitation in 25 or 50 years, adding that Mr. Bissonnette’s case “is a good example.”

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