The Conservative government is setting the stage for a confrontation with judges over the introduction of life without parole for some killers – the harshest punishment, outside of the death penalty, in Canadian history.
The question that will inevitably come before the courts is whether leaving prisoners without hope of release, at least by a neutral decision-making body, meets Canadian standards of humane treatment.
Prime Minister Stephen Harper said the government intends to introduce legislation next week that would mean life with no chance of parole for "especially brutal" first-degree murders, those who kill police or prison guards and those who kill during a sex assault, kidnapping or an act of terrorism. Prisoners could petition cabinet for release after 35 years. Under current law, a life term is automatic for murder, with the first chance at full parole for first-degree murder after 25 years.
Over the past 18 months, the government and the judiciary have clashed repeatedly over criminal laws that limited judges' discretion over sentencing, including mandatory minimum sentences. And a sentence of life without parole is the ultimate mandatory minimum.
Defence lawyers and constitutional scholars interviewed say a legal challenge to life without parole is almost certain soon after it becomes law. But while the challenge will be cast in legal terms – alleging cruel and unusual punishment, arbitrariness and disproportionality – what will really be decided is whether ending hope for classes of prisoners is in keeping with the basic tenets of the Canadian legal system.
"I think that civilized norms of justice include the idea that people can reform themselves and the system should provide some incentive and hope for them to do so," University of Ottawa law professor Carissima Mathen said. "Society is entitled to use the criminal law to denounce behaviour, but we tend to reject retribution for its own sake."
One question for Canadian judges will be whether the political review at 35 years offers a realistic hope of release. Mr. Harper stressed that the 35-year review is not parole but an appeal to cabinet, whose members are accountable to voters. In an e-mail, Prof. Mathen called this review a "complete non-starter. The whole point of sentencing is that we take it out of the political realm (once Parliament decides on the range of sentences)."
Judges might also look at hypothetical cases – a young person who kills someone during a hostage-taking, for instance. "The courts will take a very hard look at the proportionality of imprisoning a person who kills during a hostage-taking in his 20s when he is in his 70s and 80s," University of Toronto law professor Kent Roach said.
The Supreme Court has barred Canada from extraditing prisoners to jurisdictions such as the United States where they might face the death penalty. The court said in 2001 that such extraditions would "shock the conscience of Canadians." Last year, the Alberta Court of Appeal authorized an extradition of a suspected terrorist who could face life without parole in the U.S., saying the penalty would not shock Canadians' consciences.
One question is whether the government can justify its contention that the bill is needed to protect society. Thus far, the government has made public no data on crimes committed by paroled killers. "It will be interesting to see what research and evidence the government has to support this idea," said Nikos Harris, who teaches law at the University of British Columbia.
Judges have shown themselves willing to stand up to the Conservative government in unpredictable and surprising ways, even when they are not challenging the constitutionality of a law. For instance, they have evaded the government's mandatory victim fine surcharge, a financial penalty payable by all offenders, no matter how poor, to fund victim services. Judges in several provinces refused to order the poor to pay, or granted 99 years to pay, or made sure the surcharge was $1.50.
Mr. Harper has fought back at times in an equally surprising way, declaring publicly last spring – outside of any formal process – that Supreme Court Chief Justice Beverley McLachlin had acted inappropriately in a case the government lost. The court had rejected Mr. Harper's choice of a new Supreme Court judge, Marc Nadon.