Judge’s ruling in Bissonnette case was bizarre.

The sentencing of Alexandre Bissonnette, who killed six men at a Quebec City mosque in 2017, is very hard to understand, other than as an expression of a judge doing what he prefers as opposed to what the law proscribes.

Bissonnette pleaded guilty. The sentence for murder in Canada is life imprisonment. The only difference is the period after which the prisoner might apply for parole; he neither has to apply, nor is it automatically granted. The period for first-degree murder is 25 years; for second-degree, 10 to 25 years depending on the circumstances.

If there are multiple life sentences, they must, by definition, run concurrently. Until 2011, the period of parole eligibility also ran concurrently, so that Bissonnette, guilty of six firstdegree murders, would still have been eligible to apply for parole in 25 years. But in 2011, the Criminal Code was changed to give judges the option, in sentencing, of “stacking” the parole eligibility periods consecutively if warranted. The judge is not obliged to do so, but is able to hand down a sentence of life imprisonment without parole eligibility for 25, 50, 75 — or in this case, 150 years. For multiple counts of murder in the first degree, the blocks must be increments of 25.

Superior Court Justice François Huot handed down a sentence of life imprisonment with parole eligibility set at 40 years. The Criminal Code does not permit 25 + 15, but the judge rewrote that section to suit his purposes, which is brazen on the face of it.

The mosque massacre was a crime uniquely vile in its magnitude — six dead — and in its impact on the Muslim community and the city. It was also a grave sacrilege, as it took place in a house of worship, certainly an aggravating factor. The judge himself noted that it constituted a private attack upon religious liberty. I would have preferred to see the sentences stacked to reflect that.

In 2014, Justin Bourque was sentenced to life with 75 years before parole eligibility for the murder of three RCMP officers in New Brunswick. The Crown had asked for “life 75” and the defence for “life 50.”

Good thing Huot was not presiding. In the mosque case, he ruled that “life 50” was unconstitutional because it was “cruel and unusual” punishment. In New Brunswick the defence can ask for “life 50,” but next door in Quebec it is unconstitutional.

Huot ruled that “life 50” is unconstitutional, but “life 40” is not. What about “life 44” or “life 47”? The jurisprudence on that fine calibration still awaits.

Stackable life sentences are manifestly not “cruel and unusual.” Perhaps they are unusual, but then they apply only in the unusual occasion of mass murder. And they are invoked only when the circumstances are especially heinous — police officers, men in a house of God.

A life sentence is not inadmissibly cruel by our Criminal Code. It is applied routinely. There is even the “dangerous offender” designation, which is an indefinite sentence, which can practically mean life without eligibility for parole.

So the only question is whether parole eligibility periods in themselves can constitute an unconstitutional “cruel and unusual” punishment. The argument must be clear for the court to overturn the judgment of Parliament. And that “life 40” would be compliant with the charter while “life 50” would not is certainly not clear.

Huot also raised the issue of life expectancy, which is even more strange. He suggested that parole should not be set beyond reasonable life expectancy.

Bissonnette was 27 at the time of the killings; 40 years puts him eligible for parole at age 67. But what if he had been 47? Would then “life 40” also be cruel? Is the standard “life 25” sentence cruel when administered to a 55-year-old but not to a 25-year-old?

These are not legal questions, in the strict sense of interpreting the law. They are philosophical questions, or at least legislative questions. In short, not questions for Huot to consider in the rather straightforward sentencing of a man guilty of a massacre in a mosque.

Huot’s inexplicable ruling raises this question: How can justice for the killer of RCMP officers 500 kilometres away in Moncton be unconstitutionally cruel for the killer of six Muslims in their mosque in Quebec? His decision was 246 pages in length, which he read for nearly six hours in court. But in all that, he cannot answer that question.