Canada’s life-without-parole penalty faces the first test of its constitutionality at the Supreme Court of Canada on Thursday, in the case of Alexandre Bissonnette, who murdered six Muslim worshippers at a Quebec City mosque in 2017.
The possibility of parole, even for multiple murders, had been a distinguishing feature of the Canadian justice system. But since 2011, federal law in Canada has allowed parole waiting periods to be added together: 25 years for each first-degree murder conviction, or 150 years maximum for Mr. Bissonnette.
In 2020, Quebec’s top court ruled the penalty unconstitutional. Quebec has appealed that ruling, and along with four other provinces, the federal government, crime victims and police groups, will ask the Supreme Court to uphold the law. Several groups of criminal-defence lawyers, civil libertarians and prison-law clinics will ask that it be struck down.
The National Council of Canadian Muslims, an intervenor, will tell the Supreme Court that sentences stretching a lifetime or longer do not offend society’s sense of decency in hate-motivated killings.
“At a time when Western democracies are periodically witness to hateful, violent and horrific incidents of murderous rampage, including against members of religious and other marginalized groups, in which many innocent victims are killed,” the group says in a written filing, “it is difficult to reconcile that an offender who murdered 100 people would generally receive the same parole eligibility period as an offender who murdered one person.”
British Columbia’s Attorney-General, in a court filing, adds: “A full life sentence for multiple murders is not inherently unacceptable.”
In the United States, more than 50,000 people are jailed for life without parole, and 27 states, plus the federal government and the military, still have the death penalty on the books.
When Canada abolished the death penalty in 1976, it made the punishment for first-degree murder a mandatory term of life in prison, with the first chance at full parole after 25 years; a faint-hope provision allowed some killers to seek early release at 15 years.
That compromise lasted until the Conservative government of Stephen Harper authorized judges in multiple-murder cases to add together, if they wish, the waiting periods for a parole hearing. (The Conservatives also ended early release at 15 years.) At Mr. Bissonnette’s sentencing hearing, Quebec prosecutors sought 150 years for the man who was 27 when he killed worshippers Ibrahima Barry, Mamadou Tanou Barry, Khaled Belkacemi, Aboubaker Thabti, Abdelkrim Hassane and Azzedine Soufiane.
The hearing at the Supreme Court goes well beyond Mr. Bissonnette, whom defence experts testified was remorseful and who attacked the worshippers during a period of mental illness, under the influence of hateful Internet sites, evidence showed. It is about whether the most extreme punishment in use today in Canadian courts offends the principles embodied in the Charter of Rights and Freedoms. Others convicted of mass murder and not yet sentenced, such as Alek Minassian, who was 25 when he killed 10 people in Toronto in a 2018 truck rampage, would be eligible for full parole in 25 years if the court strikes down the law.
While the Liberal government has scrapped some Harper-era crime laws, it has not touched the mass-murder law, which suggests such a move would be unpopular politically. The federal justice department will argue on Thursday that because judges have discretion over whether to add the parole waiting periods together, the law does not create a grossly disproportionate form of punishment.
But some judges have balked, including the trial judge who sentenced Mr. Bissonnette, Quebec Superior Court Justice François Huot, an appointee of Mr. Harper’s government. Although the day of the murders would “forever be written in blood,” he wrote, denying the reasonable possibility of conditional release “violates the fundamental principles on which our democracy was built.” Declining to sentence in 25-year increments, he handed Mr. Bissonnette a penalty of life in prison with a 40-year wait for a parole hearing. On appeal, Quebec prosecutors sought a 50-year wait.
The Quebec Court of Appeal ruled 3-0 that anything over 25 years of ineligibility was cruel and unusual punishment and a violation of the right to liberty and security of the person, and therefore unconstitutional. The three judges, two of whom were Harper appointees and one a Liberal appointee, called the parole-stacking law “absurd,” and “an attack on human dignity,” adding: “Vengeance has no role to play in a civilized system of sentencing.” They said some punishments, such as the death penalty, torture, or the lash, are always grossly disproportionate.
The two lower-court rulings indicate the sentencing law faces a big hurdle at the Supreme Court of Canada. Several Harper-era crime laws have already been struck from the books or softened by the court, and the parole-stacking law could fairly be described as the biggest change of all. (Two other Harper-era laws are also under scrutiny at the Supreme Court this week: one on mandatory minimum sentences for gun crimes, and another on a ban on conditional sentences for certain serious crimes.) Still, the court is in a transitional period, with its ideas about when to defer to legislators and how to interpret Charter rights in a state of flux. In the past two years, it has moved to the right. The court has five Harper appointees, and four chosen by Liberal Prime Minister Justin Trudeau.
Family members of Leslie Mahaffy and Kristen French, teenage murder victims of Paul Bernardo, one of Canada’s most notorious sex-killers in the early 1990s, have been granted intervenor status in support of the law. Mr. Bernardo became eligible for full parole after 25 years and has applied repeatedly since then, but been rejected.
Timothy Danson, who represents the families, along with other relatives of murder victims and two police associations, said in an interview that preparing them for parole hearings is “gut wrenching.”
“They are not motivated by vengeance and vindictiveness,” he said. “They are motivated by justice, and there’s a big difference.”
In his legal filing, he inverts the language of the constitutional arguments. For a punishment to be considered cruel and unusual, judges need to decide it would “shock the conscience” of Canadians. But Mr. Danson argues that it is not the law, but the “free pass” for second and subsequent murders, prior to 2011, that “shocked the good conscience of right-thinking Canadians.”
The law has been applied at least 18 times, including to Justin Bourque, sentenced in 2014 to life in prison without eligibility for parole for 75 years, for the murders of three Mounties.
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