Top court quashes sentencing provision
50-year parole ineligibility out of Criminal Code
• The Supreme Court of Canada has struck down a Criminal Code provision that meant mass murderers might have to wait 50 years or more to apply for parole, calling it degrading and incompatible with human dignity.
The unanimous high court decision came Friday in the case of Alexandre Bissonnette, allowing him to seek parole after serving 25 years behind bars for fatally shooting six people at a Quebec City mosque in 2017.
The Supreme Court declared unconstitutional a 2011 provision that allowed a judge, in the event of multiple murders, to impose a life sentence and parole ineligibility periods of 25 years to be served consecutively for each murder.
The court said the provision violates the Charter of Rights and Freedoms guarantee against cruel and unusual treatment because it can deny offenders a realistic possibility of being granted parole before they die.
Bissonnette pleaded guilty to six charges of first-degree murder in the January 2017 assault that took place just after evening prayers. He was 27 years old at the time.
A judge found the parole ineligibility provision unconstitutional but did not declare it invalid, ultimately ruling Bissonnette must wait 40 years before applying for parole.
Quebec's Court of Appeal subsequently ruled the provision invalid on constitutional grounds and said the judge erred in making the ineligibility period 40 years. It said the court must revert to the law as it stood before 2011, meaning the parole ineligibility periods are to be served concurrently, resulting in a total waiting period of 25 years in Bissonnette's case.
In its decision, the Supreme Court said that in order to ensure respect for the inherent dignity of every individual, the Charter requires Parliament to leave a door open for rehabilitation, even in cases where this objective is of secondary importance.
In practical terms, this means that every prisoner must have a realistic possibility of applying for parole, at the very least earlier than the expiration of an ineligibility period of 50 years, Chief Justice Richard Wagner wrote on behalf of the high court.
“The impugned provision, taken to its extreme, authorizes a court to order an offender to serve an ineligibility period that exceeds the life expectancy of any human being, a sentence so absurd that it would bring the administration of justice into disrepute.”
By depriving offenders in advance of any possibility of reintegration into society, the provision “shakes the very foundations of Canadian criminal law,” Wagner wrote.
The decision will reverberate far beyond Bissonnette's case.
The top court has declared the Criminal Code provision invalid immediately, retroactive to 2011 when it was enacted.
As a result, the Supreme Court says, any offender who has been ordered through the unconstitutional provision to serve a parole ineligibility period of 50 years or more for multiple murders — whether the murders are first degree, second degree or a combination of the two — must be able to apply to the courts for a remedy.
In addition, the Supreme Court added, nothing prevents offenders who were given consecutive ineligibility periods totalling less than 50 years under the provision “from alleging a continuing infringement of their constitutional right, provided that the infringement is proved in each case.”
The decision will likely have ramifications for Justin Bourque, who was sentenced to 75 years in prison with no chance of parole in October 2014 in the killing of three RCMP officers and the wounding of two others in Moncton, N.B., in June of that year.
The sentence was the harshest in Canada since the last executions in 1962.
Bourque's lawyer David Lutz said he was unsure how the top court's decision would be put into effect.
“This is something that needs to be looked at carefully as to how to implement what the Supreme Court of Canada says,” Lutz said in an interview Friday.
The Ontario judge in the high-profile case of Alek Minassian decided to delay sentencing until the Supreme Court provided clarity on the provision.
In March 2021, Minassian was found guilty of 10 counts of first-degree murder, three years after he smashed into people with a van on a busy Toronto sidewalk.
Cathy Riddell, one of 26 victims of the attack, was livid Friday.
“I'll tell you what cruel and unusual punishment is,” she said. “It's an innocent person being murdered. It's an innocent person being maimed or an innocent person having their life ripped apart. That is cruel and unusual punishment.”
The Criminal Code provision the court struck down was ushered in by the Conservative government of Stephen Harper.