Leaving a door open to convict's rehabilitation a charter right

Everyone should be parole eligible, says Peter Mcknight.

Quick: Name a country in which life sentences with parole result in longer jail time than they do in the United States. You might be thinking of Russia or China, but there's one closer to home — in fact, it is home.

That's right, according to the federal Department of Justice, Canadians sentenced to life with parole spend an average of 28.4 years in prison, compared to just 18.5 years for their American counterparts.

Now to be fair, the United States also imposes sentences of life without parole, but inmates who receive those sentences only serve on average 29 years — or just seven months more than Canadians who receive life with parole.

This is not to suggest that the United States is soft on crime. On the contrary, it deserves its well-earned reputation for jailing more of its citizens for longer than any other Western democracy.

Australian lifers, for example, spend an average of 14.8 years in jail, while for Belgium it's 12.7 years, Sweden 12 years, Scotland 11.2 years, and New Zealand just 11 years.

The United States is, therefore, an outlier among Western democracies. But so, too, are we — at least when it comes to serious offences such as murder, which always results in an automatic life sentence in Canada. And a life sentence for first-degree murder means an offender has no parole eligibility until serving at least 25 years.

Nonetheless, concerns that we're still not tough enough led to a 2011 law designed specifically for those convicted of more than one murder.

While previously multiple first-degree murder sentences would still result in parole eligibility after 25 years, the new law required consecutive parole eligibility. So two murder convictions would result in no parole eligibility for 50 years, three would require serving 75 years and so on.

In practice, this means that virtually all multiple murderers will never receive parole, thereby effectively creating a sentence of life without parole.

Alexandre Bissonnette, who pleaded guilty to murdering six men in a Quebec mosque in 2017, challenged that law, and last week the Supreme Court of Canada released a unanimous decision declaring the law unconstitutional.

Writing for the court, Chief Justice Richard Wagner held that the law runs afoul of the Charter of Rights' prohibition on cruel and unusual treatment because “to ensure respect for human dignity, Parliament must leave a door open for rehabilitation.” And since sentences for multiple murder convictions effectively shut that door by rendering parole impossible, the law cannot stand.

Needless to say, many individuals and organizations are none too happy with the decision, including the federal Conservatives and NDP. It's important to stress, then, that a minimum parole eligibility of 25 years doesn't mean an offender will receive parole after serving that period. Many offenders, particularly notorious ones such as multiple murderers, spend a lot more than 25 years in jail.

A life sentence is, after all, a life sentence, meaning offenders might very well spend the rest of their lives in jail. And even if they're paroled, they'll live their lives under the careful eye of a parole officer and can be returned to prison at any time.

The Supreme Court's quarrel was therefore not with offenders being kept in jail for good; rather, it was the elimination of any chance at parole — any consideration of rehabilitation, which is one of the principles of sentencing — that resulted in the law being declared unconstitutional.

Consequently, it might be possible to design a new law that doesn't close the window on parole entirely.

For example, a law allowing for consecutive parole eligibility could include a “faint hope” clause — a provision that permits offenders, even if sentenced to life with no parole for 50 or 75 years, to apply for a reduction in the parole eligibility period after they've served a certain minimum period, say 25 years. By leaving the window to parole open a crack, the law might satisfy the Constitution.

But it won't solve the problem of violence that leads to desire for such laws. That will require a commitment to violence prevention, which is where our energy, and our money, ought to be directed.