Thursday June 09 2022

General publication

Supreme Court of Canada declares that multiple murderers are eligible for parole after 25 years

On January 29th, 2017, Alexandre Bissonnette committed 6 murders at a Quebec City mosque. He was arrested shortly thereafter. He was charged with 6 counts of first-degree murder as well as 6 further counts of attempted murder. The accused eventually pleaded guilty to all 12 counts. The Honourable François Huot, the trial judge of the Superior Court, was tasked with imposing punishment.


The penalty for 1st degree murder in Canada is life imprisonment, which is characterized in the Criminal Code as a minimum punishment. In the 1970s, when the death penalty was abolished in Canada, one of the changes made to the law was to stipulate that the punishment for 1st degree murder would include a minimum of 25 years in prison prior to being eligible to apply for parole.


In 2011, during the administration of the Steven Harper government, the Criminal Code was modified to make it possible for judges to sentence perpetrators of multiple murders to consecutive life sentences, such that the periods without eligibility for parole for each murder conviction were to be served consecutively. In the case of the Quebec City Mosque murderer, the crown prosecutor specifically requested that the 6 ineligibility periods for each murder were to be served consecutively, such that the accused would not be eligible for parole until he had served 150 years in prison.


The defence challenged the constitutionality of that section of the law, asserting that it constituted a cruel and unusual punishment, in contravention of section 12 of the Canadian Charter of Rights and Freedoms.

On February 8th, 2019, Judge Huot passed sentence and decided that the punishment set out in the law of the possibility of consecutive parole ineligibility periods of 25 years per conviction was unconstitutional and refused to enforce it. Instead, the judge read into the law the ability to set a different period of parole ineligibility and while sentencing the accused to life for each murder, the judge set the period of parole ineligibility at a total of 40 years.

This judgment was appealed to the Quebec Court of Appeal, which rendered its unanimous decision on November 26th, 2020. The appeal court agreed with judge Huot of the Superior Court that the law as such was unconstitutional. However, the Quebec Court of Appeal disagreed with Judge Huot that he had the power to read into the law an ability to set a parole ineligibility period of other than 25 years or that the trial judge could declare a period of parole ineligibility of more than 25 years but less than 25 years per infraction. It was the Court of Appeal’s finding that, since the section of the law was invalid, the provision of the law could not be read in or read down to allow for a period of parole ineligibility of more than 25 years but less than 25-year increments. As such, because the court declared that the amendment enacted in 2011 was unconstitutional, the law should revert to what it was prior to that time and periods of parole ineligibility were to be served concurrently. As such, the constitutionally permitted sentence was to order that the accused be eligible for parole after 25 years.


On May 27th, 2022, the Supreme Court of Canada issued its decision on the appeal of the decision of the Quebec Court of Appeal. Also in a unanimous decision, the Supreme Court dismissed the appeal from the decision of the Quebec Court of Appeal, holding that the law violated section 12 of the Canadian Charter of Rights and Freedoms as being a cruel and unusual punishment, which by its very nature was intrinsically incompatible with human dignity.


In essence, the court said that it was not constitutionally permissible to make it impossible for an accused to ever, under any circumstances, receive parole. The sentence of 150 years of parole ineligibility, beyond the reasonable lifespan of any person, would in essence condemn the person to die in prison without any possibility of ever applying for parole.


It must be noted that the punishment for murder is life. This means that even after parole, if parole is obtained, all prisoners will remain subject to supervision and/or parole conditions, which may be revoked at any time if violated and which can result in the re-incarceration of the offender.


Furthermore, because a convict is eligible to request parole, that does not mean that each and every murderer in fact requests parole. Even when requested, parole is not always granted. The Parole Board judges each application on the facts of each case as well as the facts of the offender. Particularly heinous cases have a history and a tendency of not allowing the convicted murderer to be released. While it may seem to some that there is no difference in committing one murder or several murders, given that in all cases a convicted murderer will still be eligible for parole after 25 years, there is also no doubt that the number of deaths, in addition to the heinous quality of the crimes, are factors that are considered by the Parole Board and are factors which make it much more difficult for a potential applicant to receive parole. In other words, a multiple murderer can expect a much more difficult time in obtaining parole at any time during his sentence. Such reasoning may be of little comfort to the relatives of the victims of such accused, but in deciding upon the unconstitutionality of this provision, the Supreme Court found that it was important to preserve a certain place for the objective of rehabilitation in a penal system based on respect for the inherent dignity of every individual.


It must be remembered that punishment is imposed by the state in the name of its citizens and is therefore held to a much higher standard than the acts of the criminals themselves. For this reason, the court decided that it would be a cruel and unusual punishment to subject any multiple murderer to even a 50-year parole ineligibility and held the provision to be unconstitutional, agreeing with the Quebec Court of Appeal that it would not be appropriate to read the provision down to allow for the imposition of something like a 40-year period of parole ineligibility.


The law in this area is now settled. Other murderers sentenced to multiples of 25 years of parole ineligibility since 2011 will now have the possibility to remedy such punishments and have their periods of parole ineligibility reduced to 25 years. While different persons will have opinions on whether this result is good or not, the decision of the Supreme Court puts an end to the uncertainty that existed since the judgment of Judge Huot and establishes the rule throughout the country.


Me Franco Tamburro

Alepin Gauthier Avocats Inc.

This text contains legal information of a general nature and should not replace legal advice with a lawyer or notary who will take into account the particularities of your situation.