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A Critique of the SCC Ruling in R v Bissonnette: Is Rehabilitation for All Murderers?

Written by Humaira Jaleel


The recent Supreme Court of Canada (SCC) ruling in the R v Bissonnette case has left the legal scholars and the community that Bissonnette targeted with some serious questions. The decision has attracted skepticism and criticism. This writing will try to tackle the reasons for criticism by looking at the facts of the case, its history, and the underlying skepticism for this decision and concluding with a critique of the sentencing structure used in Canadian Courts.

Facts of the case:

On 29th January 2017, the accused entered a mosque in Quebec, armed with a semi-automatic rifle and a pistol, and opened fire on the worshippers inside. As a result, he killed six people and seriously injured five others. At the trial, he pled guilty to all the charges laid against him, which included six counts of first-degree murder. The trial court sentenced him to life imprisonment for each of the six first-degree murders.[1] Due to the nature of the crime, the crown argued that the judge should apply section 745.51 of the Criminal Code to make the eligibility of parole longer than twenty-five years. Considering the provision, the judge decided to set the period without eligibility for parole to 40 years.

The issue of Parole eligibility:

At the trial, the judge ordered the offender shall serve a minimum of 25 years of imprisonment before being declared eligible for parole. He would serve five of the 25-year sentences concurrently and 15 years for the sixth murder to serve consecutively (back to back). Thus, the offender shall not be eligible for parole until he has served 40 years of his sentence.[2] The offender appealed his sentence to Quebec's Court of Appeals. The Court of Appeals found the provision unconstitutional per section 12 of the Charter. Furthermore, the court ordered that the offender serve all six sentences concurrently, reducing the parole ineligibility to twenty-five years only.

Following this decision, the crown appealed to the Supreme Court of Canada. In its ruling on 27th May 2022, the SCC also found the section of the Criminal Code unconstitutional as per the Charter Rights under section 12 that guarantees that "Everyone has the right not to be subjected to any cruel and unusual treatment or punishment." Accordingly, the SCC unanimously struck down the Criminal Code provision and declared that the "No discount for multiple murder provision" under section 745.51 was invalid from when Parliament enacted it in 2011.

Reasons for the decision:

Writing for a unanimous Supreme Court, Chief Justice Wagner asserted that the section in question violates the s. 12 charter rights of a person that cannot be justified in a free and democratic society. Wagner J puts much emphasis on Rehabilitation as one of the sentencing principles. He opined that to ensure respect for human dignity, Parliament must leave a door open for Rehabilitation, even in cases where this would be of minimal importance.[3] Furthermore, the decision also highlighted that such punishments bring the administration of justice into disrepute.

Why the reasons seem unconvincing:

What should be an appropriate sentence for a crime is a hotly contested topic. Some feel that more importance should be given to the objectives of deterrence and punishment. In contrast, others would like to focus more on Rehabilitation.[4] In the case at hand, the SCC held that denying a chance at release to all offenders that face multiple consecutive parole ineligibility periods makes their sentence cruel and unusual, regardless of the nature of the crime, planning, and its effects on the victims, families, and society. Justice Wagner writes that section 12 of the Charter protects human dignity and evokes the idea that 'every person has intrinsic worth and is therefore entitled to respect.'[5] The court has raised the objective of Rehabilitation to almost a Charter right level, which it is inherently not. According to section 718 of the Criminal Code, sentencing objectives are to denounce unlawful conduct and harm done to victims, deterrence, separation of offenders from society, Rehabilitation, reparation of harm to victims, and promote a sense of responsibility in offenders. According to R v Nasogaluak, "No one sentencing objective trumps the other."[6] However, in the case at the bar, the court is essentially saying that Rehabilitation does trump other objectives.

In the detailed decision, Wagner J mentions the proportionality of the sentence to the crime. However, the court does not consider that nothing less than ineligibility to parole for a very long time is needed to denounce certain heinous crimes. while discussing reasons for Rehabilitation and the offender's dignity of the person, the court does not consider the lives of the victims, their families, the community, and the grief it caused the community affected by the offender's actions. The court approaches the sentencing with a focus on the Rehabilitation perspective, not giving enough weight to the perspective of punishment and deterrence as if it is not a significant factor.

Another main criticism of the ruling is due to the racial disparity on emphasis of Rehabilitation. To understand whether the emphasis on Rehabilitation is a factor for all criminal sentences, let us look into the context of individuals convicted of terrorism. As noted by Wagner J, every person has intrinsic worth and is entitled to respect by keeping a door open for Rehabilitation. Logically, sentencing based on Rehabilitation principles must be available to all murderers and violent criminals. Then why is there a separate sentencing structure for those convicted of terrorism and sexual assault? A case in point is the R v Khawaja case, where rehabilitation was not a significant factor in sentencing.[7]

The language used in the decisions of the two cases, i.e., R v Khawaja and R v Bissonnette, is apparent in who is shown sympathy during sentencing. The trial judge characterizes Bissonnette, who killed 6 people and seriously injured 5, as someone who cannot be classified as a ‘serial killer or a hitman.’[8] Denying him ‘reasonable prospect of parole’ would be something that ‘Canadians would consider abhorrent and intolerable.’[9] On the other hand, looking at the decision in Khawaja, we see that the SCC was not so sympathetic to the offender. The decision in this case, written by the Chief Justice, mentions that "rehabilitation in a given case is best left to the reasoned discretion of trial judges on a case-by-case basis."[10] Furthermore, the decision reads that "the absence of evidence on rehabilitation prospects justified a stiffer sentence than otherwise might have been appropriate."[11]

Another point that indicates that Rehabilitation is not the perspective of the Canadian Criminal system and has not been so until now is the fact that the criminal code section 83.26, allows for consecutive sentences for offences arising out of the same event or events to be imposed on a person charged with terrorism.

Another case at hand is the matter of the Mississauga mosque attacker, where the accused entered a mosque in March 2022 with an axe and bear spray. Fortunately, he was tackled before he could fatally harm anyone but injured several. The case is very similar to the Bissonnette case though the accused in the Omar proceedings receives a terrorism charge which has harsher consequences. In contrast, Bissonnette, who murdered several people, is not charged with terrorism and can receive a sentence based on Rehabilitation and less harsh parole eligibility.

The above discussion shows that, consequently, racialized persons must prove that they are worthy of safeguards and Rehabilitation. The criminal justice system will have to ensure protection for Bissonnette also translates to other individuals that face the brunt of the Justice systems, like indigenous, black, and Muslim peoples.

A further criticism of the decision in the Bissonnette case is considering the same ruling for 'older' inmates. Will the same safeguards from a cruel and unusual punishment apply to an older offender who receives twenty-five years of a minimum sentence with the ineligibility of parole? Since a twenty-five-year sentence for an older inmate is essentially a death sentence. These cases can point to the SCC muddying the waters of sentencing as sentencing can be appealed as cruel and unusual punishment.

Can there be Rehabilitation in the Prison system:

Finally, the question of Rehabilitation in prisons needs to be tackled. Research of prison systems in Canada and the Western peer countries shows that Rehabilitation programs attempted in prisons do not reduce recidivism rates. Rather than reducing, they promote criminality and a vicious cycle of offence and imprisonment. Canadian prisons lack meaningful Rehabilitation programs.[12] Longer sentences mean less access to mental health and rehabilitation programs. One might be forced to consider whether Rehabilitation is the goal? If it is, then we should see more budget flowing into Rehabilitation programs so offenders can re-enter society. Instead, we see that bigger budgets are given to apprehension, prosecution, and detention, rather than Rehabilitation for long-term prisoners of violent crimes.

How this ruling will impact other cases involving multiple murders in Canada:

With this ruling, the court opened doors for other offenders sentenced according to the impugned provision in Criminal Code. The most recent case is of Justin Bourque, who killed three police officers, contested and received a reduction in parole eligibility to twenty-five years.[13]

This ruling of SCC requires that we keep an eye on similar cases in the pipeline of the Criminal Justice System here in Canada. For example, will the courts consider Rehabilitation as much in the upcoming trials of the accused Veltman, who hit the family in London, Ontario, killing four family members; and the trial of Mohammad Moiz Omar, who entered a mosque in Mississauga in March of 2022 to kill many?


Finally, the question that we need to consider as a society is should the solution be to make procedures fair, so everyone is prosecuted the same under the law or whether we should get rid of the incarceration regimes and look at Rehabilitation outside of the broken prison system.[14] The incarceration of large populations in prisons does not seem to be working. It is time to think creatively about abolishing penal regimes and start thinking about it from the perspective of reform and human rights.

[1] R. c. Bissonnette, 2019 QCCS 354. [2] Ibid. [3] R v Bissonnette, 2022 SCC 23 at para 85 [Bissonnette]. [4] Julia Nicole, Sentencing in Canada, Publication no. 2020-06-E, Parliamentary Information and Research service, Library of Parliament, Ottawa, 22 May 2020. [5] Bissonnette, supra note 3 at para 59. [6] R v Nasogaluak, 2010 SCC 6, para 43. [7] R v Khawaja, 2012 SCC 69. [8] R c Bissonnette, supra note 1 at para 981. [9] Ibid at para 982. [10] R v Khawaja, 2012 SCC 69. [11] Ibid at para 126. [12] Sentencing the Toronto 18: Lessons from Then, Lessons for Now, (2021) 44:1 Man LJ 363 - 390 [13] R v Bourque 2014 NBQB 263. [14] The Supreme Courts Bissonnette Decision: An Anti-Racist and Abolitionist Perspective (May 2022), online: International Civil Liberties Monitoring Group; []


The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.


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