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A Glimmer of Hope: A Critical Analysis of the Supreme Court Decision in R. v. Bissonnette

Written by Zeynep Fattah

On January 29, 2017, the accused walked into the Great Mosque of Quebec City and killed Khaled Belkacemi, Ibrahima and Mamadou Tanou Barry, Abdelkrim Hassane, Azzeddine Soufiane and Aboubaker Thabti.[i] Thirty-five other people, including four children, witnessed the murders of their fellow Muslim brothers. Five more, including Aymen Derbali, who was shot seven times and left paralyzed, were injured.[ii] The Supreme Court of Canada decided that the man was to be sentenced to life in prison with parole ineligibility set to 25 years.[iii]

While seemingly well thought out, the decision did not leave many content; some argued that the punishment was giving a “discount” to someone who killed multiple people, and others claimed it was still too harsh and in contravention of human dignity.

Background and Procedural History

On March 26, 2018, the accused pled guilty to 6 counts of murder.[iv] The law at the time gave the sentencing judge discretion to sentence the accused to life in prison with parole ineligibility set up to 150 years.[v] The accused’s lawyer argued that this law was unconstitutional under section 7 and section 12 of the Constitution. While the sentencing judge acknowledged that a reading that allowed for 150 years of ineligibility was unconstitutional, he decided that the law could be read in. The Court of Appeal reversed the decision,[vi] and the Supreme Court of Canada, looking specifically at section 12, sided with the Court of Appeal.[vii]

Supreme Court of Canada’s Analysis

The main point of the decision is that any punishment that leads to a life sentence without a realistic possibility of parole for all offenders from the outset is inherently cruel and unusual. This post will examine two aspects of their decision and analyze the sentencing system of murder cases in Canada while preserving human dignity. Firstly, the Court’s assumption that the law necessarily denied every offender sentenced under it the possibility of parole at the outset.[viii] Secondly, using the Court’s description of the history of the laws in Canada in relation to punishing murder and analyzing some ways those laws can be changed to create a more effective sentencing system.[ix]

Cruel and Unusual in its Nature

When discussing the law at issue, the Court says that it can be “likened to a sentence of imprisonment for life without a realistic possibility of parole.”[x] This is the case because all of the offenders sentenced under this law will either die in prison or “will never be able to re-enter society and contribute to it as an active citizen.”[xi]

Putting aside the second group of people for a moment, the Court tries to distinguish between the elderly offender by arguing that the elderly offender has just run out of time to be rehabilitated.[xii] Applying that logic, however, it could be possible for someone who commits the most heinous of crimes to also run out of time. Most offenders who commit multiple murders die in prison even when they are eligible for parole[xiii] because the parole board does not find them to be rehabilitated. In that sense, it may take longer for rehabilitation to work on offenders of that nature and there is no real distinguishable feature between the elderly offender and the multiple murderer who needs more time to be rehabilitated. The Courts also says that the 25-year ineligibility period does not deprive every offender at the outset of the possibility of parole.[xiv] This seems to suggest that if the parole ineligibility period expired at a point where even some offenders had the option of a parole hearing, the law would not be intrinsically incompatible with human dignity, even if 99.9% of the offenders were denied that right. In this case, it is not clear that a 29-year-old or someone even younger who has to serve a life sentence with a 50-year ineligibility period would never live to see his parole date.

The Court uses the second group of people, coined “virtual lifers,” to deal with the above issue. They say that there needs to be a real possibility that some individuals will be able to survive and reintegrate into society after serving their sentence.[xv] There are a couple of issues with this. Firstly, while there are clearly negative impacts in longer sentences, the longer sentence itself is not the cause of the inability to reintegrate into society; the issue is rather the prison system’s lack of emphasis on rehabilitation as it relates to those with lengthy sentences. Issues with the system should not have an impact on a decision of whether or not the door is left open for rehabilitation when a sentence is lengthy. The 29-year-old who survives to see his parole date still has the opportunity to be rehabilitated; if he is not, that is not a problem of the law but a problem of the system. Secondly, the Court does not deal with when a sentence becomes so lengthy that an offender becomes a virtual lifer. However, by inference, their number seems to be somewhere after 25 years because otherwise, even a 25-year ineligibility period would bar every offender from the outset of a possibility of parole. In fact, the paper that the Supreme Court cites when speaking of virtual lifers specifically says even one mandatory life sentence without parole for 25 years could pose significant constitutional issues.[xvi] If the test includes this second group, the paper's author is likely correct.

The Sentencing System

The law, as it stands, has some tensions that were not dealt with appropriately by the Court. Interestingly, the Court’s own analysis of the history of those convicted of murder shines a light on why the system does not work in our society.

They remind us that until 1961, anyone convicted of murder was sentenced to the death penalty and illustrate the framework that created our current laws;[xvii] the distinction between first and second-degree murder came from the need to carve out some murder that was not deemed to be punishable by death,[xviii] and lengthy ineligibility periods were set up as a compromise when the death penalty was abolished.[xix] Rethinking mandatory minimums and the definitions of murder could help society balance the dignity of all humans with the ability to sentence offenders for the most heinous crimes proportionately.[xx]

At this point in Canada, if someone is convicted of first-degree murder, judges are bound to sentence them to life in prison with parole ineligibility set to 25 years. The Court reminds us that Canada’s mandatory parole ineligibility of 25 years is quite severe compared to other Western countries.[xxi] Arguably, the mandatory life sentence itself is also harsh. Both are at least in conflict with the principle of human dignity but likely intrinsically incompatible with human dignity based on the Court’s interpretation despite their desire to distinguish. Getting rid of the mandatory minimums would allow judges absolute discretion and give them the flexibility to set proportionate punishments. While this could mean shorter sentences for some offenders, this would also mean more flexibility at the higher end without necessarily denying all offenders hope of parole from the outset.

Additionally, to assist judges in using their discretion for punishing crimes, it may be helpful to update the definitions of murder to include more factors that could impact the severity of the crime. For example, multiple murders, hate-based murders, and even the extent of the cruelty imposed in the murder are some factors used to define the harsher degree of murder in some countries.[xxii] The existence of these factors in our laws would create a way to better distinguish between the vast array of situations that come in front of a judge and would afford them a checklist of sorts that could assist with providing proportionate sentences for proportionate crimes.

At the end of the day, the case of R. v. Bissonnette made it clear that the laws for sentencing murder need to change if we balance the inherent dignity of all humans with the need to punish crimes effectively.

[i] R v Bissonnette, 2022 SCC 23 at para 11. [Bissonnette] [ii] Dalton, Melinda, Julia Page & Catou MacKinnon. “Quebec City mosque shooter Alexandre Bissonnette says he's ashamed of his 'senseless act'” (28 March 2018), online: CBC <> []. [iii] Bissonnette, supra note 1 at para 143. [iv] Bissonnette, supra note 1 at para 12. [v] Criminal Code, RSC 1985, c C-46, s 745.51 (1) states that “At the time of the sentencing under section 745 of an offender who is convicted of murder and who has already been convicted of one or more other murders, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and the recommendation, if any, made pursuant to section 745.21, by order, decide that the periods without eligibility for parole for each murder conviction are to be served consecutively.” [vi] Bissonnette, supra note 1 at para 24. [vii] Ibid at para 4. [viii]Ibid at para 97. [ix] Ibid at paras 27-36. [x] Ibid at para 77. [xi] Ibid at para 77. [xii] Ibid at para 86. [xiii] For example, Clifford Olson was eligible and did apply to the parole board three times during his sentence but was found not to be rehabilitated to the point that he could safely re-enter society. At the end of the day, he died in prison. Paul Bernardo has also applied two time so far and has also been denied. These cases are generally [xiv] Bissonnette, supra note 1 at para 86. [xv] Ibid at para 77. [xvi] A. Iftene, “R. c. Bissonnette and the (Un)Constitutionality of Consecutive Periods of Parole Ineligibility for a Life Sentence: Why the QCCA Got It Right and Why Section 745.51 Should Never Be Re‑Written” (2021), 69 Crim. L.Q. 312, at p. 334. [xvii]Bissonnette, supra note 1 at 29. [xviii]Ibid at para 30. [xix] Ibid at paras 31-32. [xx] Discussing these changes and their impacts in detail are not within the scope of this blog post. [xxi] Bissonnette, supra note 1 at para 32. [xxii] Specifically, laws in Israel, Romania, Georgia and Portugal, implement these and many other factors when looking at distinguishing between first (aggravated) and second (non-aggravated) degrees of murder.


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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