Mass killer about to become a test case

This week, the judge hearing the case of Quebec City mosque assassin Alexandre Bissonnette is expected to pass sentence after long contemplation. Bissonnette, whose January 2017 rampage killed six and injured 19, pleaded guilty in March to six counts of first-degree murder and six counts of attempted murder. Despite the guilty plea, the Crown and the defence have not come to an agreement on Bissonnette’s eligibility for parole. The murder convictions will carry automatic life sentences, each allowing him to request parole after 25 years.

In 2011, the Conservative federal government changed the Criminal Code to allow judges to make those 25-year periods of ineligibility consecutive rather than concurrent for multiple murderers. (Newspapers usually state this a little incorrectly, though I think we can be forgiven for disregarding a meaningless technical point: multiple life sentences themselves are always, strictly speaking, concurrent.) This gives Justice François Huot a lot of options in piling up the “stackable” quarter-centuries, in any combination up to 150 years.

The full 150 is what the Crown is requesting, in the spirit of condemning a methodical act of extreme violence perpetrated against defenceless, innocent strangers in a spirit of bigotry. Bissonnette’s lawyer is doing his job, and he will probably not be finished when the judge completes his work, for the 2011 changes to the Criminal Code have not yet been dragged into appellate courts. Charles-Olivier Gosselin is suggesting that a sentence equivalent to life without parole is “cruel and unusual punishment” under Section 12 of the Charter of Rights, quoting words whose precise interpretation has been subject to rapid change in recent years.

It is certainly an unusual punishment in the sense that Canadian courts have not had cause to invoke it very often, but then, we don’t have too many sextuple murderers, either. Consecutive periods of parole ineligibility have been applied something like eight times in all since the law changed, with the longest period being 75 years. These sentences show that trial judges are not necessarily afraid to stack those quarter-centuries past the span of a homicidal adult’s remaining life, and in a couple of Ontario cases, the specific Charter argument being made by Mr. Gosselin has been explicitly rejected.

Still, Justice Huot knows that his finding, whatever it is, is likely to be subject to revision. If it were me on the bench I would probably take my time, too. Bissonnette, as a perpetrator of xenophobic, sectarian violence, is a hard case for our liberal penal system to swallow. Under the accepted premises of liberalism, in any meaning of that word, his crime deserves the most serious retribution and denunciation the law can find.

But, of course, the law generally grows ever more squeamish, and that is a tradition of liberalism too. A court could, within living memory, have hauled Bissonnette off and hanged him straightaway. We denied ourselves that option on the principle that capital punishment has a distinctively odious and bloody character — that it is not comparable to any other penalty and not acceptable for the state to exercise.

Now a defence lawyer whose client is in no danger of execution says that life imprisonment with no hope of parole would be “a death sentence by incarceration,” and is thereby unthinkable. By a sort of ratcheting process, the greatest punishment left available, after we abandon the old barbarities, becomes cruel and unnatural in its turn.

We shall see what the various judges make of it. In general they disliked the Conservative habit of sticking them with mandatory minimum sentences, but section 745.51 of the Criminal Code, the “stacking” provision, gives them more flexibility in sentencing than they had before, rather than less. One detects hints of this approval in the trial-level case law on 745.51, particularly when judges reject a prosecutor’s request for a stacked sentence. There is really no other means for a judge to adjust a sentence for multiple first-degree murder to reflect the different degrees of heinousness we would all recognize, and which are explicitly outlined in the doctrine of criminal sentencing.

Justice Huot might, in choosing a penalty for Bissonnette, recognize that he is an extremely pathetic person whose act was seemingly motivated by despair as much as hatred. But he must also realize that Bissonnette went ahead with his massacre in the presence of children, reloaded his handgun twice, and did not stop shooting until his victims stopped moving. That’s a judge’s job for you, and the legislators who created 745.51 were unusually clear in giving them the latitude to perform it. For whatever it’s worth, that part of the Code is not really subject to the uncertainty about Parliament’s intentions that appellate judges sometimes like to contrive or discover.

THE LAW GENERALLY GROWS EVER MORE SQUEAMISH.