Lisa Kerr is an assistant professor in the faculty of law at Queen’s University.
In a Quebec City mosque, on Jan. 29, 2017, Alexandre Bissonnette killed six Muslim men during their evening prayers. It comes as little surprise that his case raised the question: what is the most severe punishment that a Canadian court can lawfully impose?
On Friday, the Supreme Court ruled that a 2011 law passed by former prime minister Stephen Harper’s government violates the ban on “cruel and unusual punishment” in Section 12 of the Charter of Rights and Freedoms.
Under the Harper-era law, judges were given the power to “stack” the 25-year period of parole ineligibility that applies to first-degree murder. In theory, Mr. Bissonnette, 27 at the time of his offence, could have received 150 years in prison before being eligible for parole. The average life expectancy of inmates who die of natural causes is 60. The law was designed with a clear purpose: those who kill multiple victims could receive terms of imprisonment that ensure death before a parole hearing.
In its unanimous decision striking down the law, the Court noted that the severity of this penalty was “without precedent” in this country’s history since the abolition of the death penalty in the 1970s.
There are many kinds of punishment that are unacceptable in contemporary Canada. The legal test, according to the Supreme Court, is whether a penal method is “intrinsically incompatible with human dignity.” Consider the obvious examples of lobotomy, castration, capital punishment and indefinite solitary confinement. These penalties are clearly beyond the pale, no matter the offence and no matter the offender. The Court has now held that a penalty of death-in-prison – imprisonment without a realistic hope of review – is similarly “degrading and dehumanizing.” Such a punishment must be “excluded from the arsenal of sanctions available to the state.”
All intentional killings in Canada receive a sentence of life imprisonment, and Mr. Bissonnette’s case does not change that aspect of the law. With this decision, the law reverts to the 25-year period of parole ineligibility for first-degree murder. This automatic penalty, enacted as a political compromise to achieve the abolition of capital punishment, is also comparatively severe. Many countries stipulate far earlier reviews. In Canada, the reality will continue to be that many people will die in prison. The Court’s decision simply makes clear that a court cannot specifically and deliberately condemn a person to that fate at the outset of their sentence.
A very small number of inmates serving life sentences in Canadian penitentiaries have murdered multiple people. Invariably, they face a profoundly uphill battle at their parole hearings. As a starting point, they need an extraordinary record of good behaviour, meaningful insight into their offences and deep remorse. Many will never be released by a parole board that is focused on public safety. But the Court’s decision means they must have a realistic opportunity to ask.
In January, I assisted in the filing of the Queen’s University Prison Law Clinic’s intervener argument on the Bissonnette case to the Supreme Court. We explained that imprisonment without the prospect of release is fundamentally at odds with the core values of our penal order. Such a sentence has no rehabilitative purpose – it recognizes no possibility of transformation or growth. With no hope of eventual review, the entire experience of incarceration is necessarily meaningless. The Court observed that the psychological consequences of such imprisonment are comparable with those experienced by people on death row, since only death will end their incarceration. Such prisoners also have little incentive to conform to prison rules, making the job of prison officials even more difficult.
It is crucial to understand that the question raised in this kind of case is not about what the offender deserves. When it comes to Alexandre Bissonnette or Alek Minassian – who awaits sentencing for killing 10 pedestrians with a van in Toronto – no punishment meted out could amount to proportionate retribution for the harm caused. In such a case, there can be no true match between the crime and the punishment. Indeed, the nature of the wrong and the extent of harm caused extends beyond ordinary human understanding.
The Court accepted that the question is not what the offender merits as a sanction, but rather what types of punishment the state is permitted to employ. As U.S. civil rights lawyer Bryan Stevenson often says about the American death penalty: “It is not whether they deserve to die, but whether we deserve to kill.” Mr. Stevenson is referring to the U.S. history of slavery, lynching and Jim Crow laws, in the context of a death penalty that continues to discriminate against Black people. But the general point stands. When it comes to the most extreme punishments for the most extreme offences, the question is not what they deserve but, rather, who we are.
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