Debra Parkes and Isabel Grant are professors at the University of British Columbia’s Peter A. Allard School of Law.
Six people dead in a horrifying murder rooted in racism and Islamophobia. Shouldn’t we lock this killer up and throw away the key? Given that some other recent multiple murders have resulted in life sentences with parole ineligibility for 75 years, many are questioning the judicial rejection of such a fate for Alexandre Bissonnette, who carried out an attack at a Quebec City mosque in 2017.
Last week, Quebec’s Court of Appeal invalidated sections of the Criminal Code that allow judges to hand out consecutive parole ineligibility periods for those who commit more than one murder. Agreeing with the sentencing judge that the prison terms resulting from this law were cruel and unusual punishment, the court reduced Mr. Bissonnette’s sentence to life imprisonment without the opportunity to seek parole for 25 years (reduced from the 40 years ordered at trial). A close look reveals that this decision is not about misplaced leniency for this particular man. It is about putting a brake on the runaway train of popular punitiveness, exemplified by the Harper-era law that the Quebec Court of Appeal struck down.
It is important to remember that eligibility for parole is just that: the opportunity to be considered for conditional release (under strict supervision) before the Parole Board of Canada, a body mandated to prioritize the protection of society. Many people serving life sentences for murder are not released when eligible to apply; others will never be released. Release is rare for someone serving a life sentence for multiple murders.
Since the death penalty was abolished in 1976, everyone convicted of murder in Canada is sentenced to life in prison with a mandatory period to be served before becoming eligible to apply for parole. That period is 25 years for first-degree murder and 10 to 25 years for second-degree, the exact number of years set by the sentencing judge. This regime is severe by international standards, and it has created a growing and aging population of more than 5,000 Canadians sentenced to life in prison. But this law was not harsh enough for the Harper Conservatives. The 2011 Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act introduced a fundamentally new and even harsher sentence into Canadian law: de facto life without parole.
That law made it possible for judges to order consecutive parole ineligibility periods of 25 years each for multiple murders, creating the extraordinarily long prison terms at issue in the Bissonnette case. The government also abolished the “faint hope clause” introduced in 1976, which gave a person sentenced to more than 15 years of parole ineligibility the right to apply to a court after 15 years to have the ineligibility period reduced. Its name poignantly sets out its purpose – to give those incarcerated for extraordinarily long periods a hope, but not a guarantee, that one day they would be released. The faint hope clause was a necessary safety valve in a stringent sentencing regime. As such, it was integral to early decisions based on the Charter of Rights and Freedoms that upheld the mandatory murder sentencing regime as constitutional.
It is only because our murder sentencing regime has become so extraordinarily punitive in recent years that the sanction meted out to Mr. Bissonnette by the Court of Appeal – a life sentence with no possibility of parole for 25 years – could be considered anything other than a harsh and devastating sentence for a young man.
The Quebec Court of Appeal found extraordinary sentences of consecutive parole ineligibility to be inherently repugnant and ultimately unconstitutional. The decision does not say that people convicted of murder will be released more quickly; it does say that a sentence with no hope is cruel and unusual.
According to the decision, a life sentence with a parole ineligibility period that runs longer than the reasonable life expectancy of the person serving it, and that leaves no room for rehabilitation or hope of release, is “degrading by its absurdity.” It is also inconsistent with Canada’s international human-rights obligations, which require a meaningful opportunity to seek release during a life sentence. Moreover, the law enlists the judiciary in a project of vengeance, a goal that the Supreme Court of Canada has made clear “has no role to play in a civilized system of sentencing.”
The court also rejected the sentencing judge’s move to “read in” to the 2011 law the power for judges to order parole ineligibility in increments shorter than 25 years, which had resulted in the 40-year period overturned here. The record was clear: The Conservative government had rejected proposals to amend the legislation to allow judges that flexibility, preferring the more punitive result.
Research in the United States has shown that the availability of extreme prison sentences (life without parole or “virtual life” sentences of 50 years or more) has had an inflationary effect on sentencing generally owing to the normalization of extreme penalties and a magnitude scaling effect. Sentences that might otherwise be seen as unreasonably harsh become accepted.
Our research suggests similar patterns may be emerging in Canada, at least with respect to murder sentencing. Over time, judges have been imposing longer periods of parole ineligibility than they were in the 1980s and 1990s, especially in Ontario. We also found that judges have applied consecutive parole ineligibility at very different rates across the country. British Columbia courts, with one exception, have avoided imposing consecutive parole ineligibility periods, whereas it has become much more the norm in Ontario and Alberta.
The Quebec decision invalidates consecutive parole ineligibility in that province only. Assuming it is appealed, the tenor of recent Supreme Court decisions invalidating overtly punitive laws (from mandatory sentences to the victim fine surcharge) suggests the top court will closely scrutinize the ratcheting up of murder-sentencing law.
It asks a lot of Canadians to allow hope for those who have taken the lives of others, particularly in a case motivated by racism. However, the way we treat those convicted of our most serious offences speaks to our values as a country. Imposing decades of incarceration, without even a faint hope of release, does not make Canadians safer.
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