Canadian Supreme Court rules on unconstitutionality of consecutive first-degree murder sentences

Her Majesty The Queen and Attorney General of Quebec v Alexandre Bissonnete 2022 SCC 23

Summary

Bissonnette is a landmark decision of the Supreme Court of Canada which held that life sentences without a possibility of parole constitute cruel and unusual punishment. The court unanimously held section 745.51 of the Canadian Criminal Code (Code), which gives judges the discretion to stack periods of parole ineligibility for multiple murders, violates section 12 of the Canadian Charter of Rights and Freedoms (Charter). The Charter guarantees the right not to be subjected to cruel and unusual treatment or punishment.

Facts

On 29 January 2017, the respondent entered the Great Mosque of Quebec with a semi-automatic rifle and a pistol, and opened fire on a group of 46 worshippers. Bissonnete killed six people and seriously injured another five. He pleaded guilty to 12 charges, including six counts of first-degree murder. At sentencing, the Crown requested that section 745.51 of the Code to be applied, such that the periods without eligibility for parole for each murder conviction be served consecutively rather than concurrently. Bissonnete argued that the application of this section would allow the court to add up parole ineligibility periods of 25 years for each murder. This would mean he would be sentenced to 150 years without parole.

Charter

Section 12 of the Charter aims to prevent the state from inflicting physical or mental pain and suffering through degrading and dehumanising treatment or punishment. It protects individuals against the imposition of a punishment that is so excessive as to be incompatible with human dignity, and which is intrinsically incompatible with human dignity. In other words, it prohibits a state from imposing a punishment that is grossly disproportionate.

In deciding whether section 12 of the Charter has been breached, a court must determine whether the punishment is by its very nature degrading or dehumanising and whether such a decision could be reasonably imposed in a manner compatible with human dignity in the Canadian criminal context. To ensure respect for human dignity, a court must leave the door open for rehabilitation.

Section 7 of the Charter gives everyone the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principle of fundamental justice.

Decision

Trial

On 26 March 2018, the respondent pleaded guilty to the 12 charges laid again him, including six counts of first-degree murder. He was automatically sentenced to imprisonment for life. The Crown asked that the court apply section 745.51 of the Code and sentence the respondent to six consecutive parole ineligibility periods of 25 years, for a total of 150 years.

The trial judge held that section 745.51 of the Code infringed sections 7 and 12 of the Charter. The trial judge applied the technique of reading in, thereby interpreting section 745.51 of the Code as giving the courts discretion to choose the length of the ineligibility period to impose on an offender. The trial judge sentenced Bissonnete to serve a period of 40 years before he is eligible to apply for parole. Bissonnete appealed.

Quebec Court of Appeal

While the Court of Appeal granted Bissonnete’s appeal, it held that section 745.51 of the Code is invalid and unconstitutional on the basis that it is contrary to sections 7 and 12 of the Charter. The court unanimously held that imposing a parole ineligibility period that significantly exceeds the life expectancy of any human being is degrading because of its absurdity, and hence incompatible with human dignity. It was irrelevant that the consecutive ineligibility periods were discretionary and not compulsory. The court also found that it was inappropriate for the sentencing judge at first instance to overstep the limits of his judicial functions by broadening the discretion that is conferred on the courts. By doing so, the trial judge had undermined Parliament’s objective in enacting section 745.51. However, the court declined to answer the question of whether the protection of human dignity is a principle of fundamental justice. The Court of Appeal ordered that Bissonnette serve each count of first-degree murder concurrently as a single 25-year ineligibility period. The prosecution appealed.

Supreme Court of Canada

The question before the Supreme Court of Canada was whether section 745.51 of the Code is contrary to sections 7 and 12 of the Charter. The Supreme Court unanimously held section 745.51 of the Code is contrary to section 12 of the Charter. This is because the imposition of sentences of imprisonment for life without a realistic possibility of parole before death are degrading in nature and thus incompatible with human dignity, because they deny offenders any possibility of reintegration into society. It was therefore unnecessary for the court to consider whether section 7 of the Charter is also infringed. The provision was declared to be of no force or effect from the time it was enacted.

Commentary

Since 1976 (when the death penalty was abolished), first-degree murder has carried a maximum sentence of life imprisonment with a minimum non-parole period of 25 years.

In 2011, Parliament introduced section 745.51 into the Code, which gives the court the power to decide whether non-parole periods for murder convictions are to be served consecutively. This abolished the right to judicial review of the parole ineligibility period, also known as the ‘faint hope’ clause.

Following the decision in Bissonnette, two federal candidates declared their intent to set aside the decision by invoking the ‘notwithstanding clause’ which allows legislation to operate notwithstanding specific provisions in the Charter. To achieve this, it must be passed by a legislative simple majority and expires after five years. If successful, this would be the first time the ‘notwithstanding clause’ has ever been used by the federal Parliament (although it had been used at provincial-level).

The full text of the decision can be found here.

Keshi Moore is a Waiwa Mudena Work Experience Student at King & Wood Mallesons.