Reasonable Parole Eligibility Periods - Derek J. Novosel
On January 29, 2017, the sounds of gunshots and screams of horror echoed throughout the hallowed and ordinarily peaceful halls of the Islamic Cultural Centre of Quebec. The lives of six Muslim Canadians were lost entirely, and countless others irrevocably altered, on that dark night. Alexandre Bissonnette, at the time 27 years old, was charged with six counts of first-degree murder under s 235 of the Criminal Code, and also with six counts of attempt to commit murder under its s 239(1)(a); all indictable offences which carry minimum sentences of life in prison. Bissonnette plead guilty on all counts, and on February 8, 2019, François Huot JSC convicted him of them all, sentencing him to life in prison with no chance of parole for forty years.1
If forty years of parole ineligibility period seems odd, that’s because it is. It was calculated using the convictions for the murder charges, and was a combination of one standard twenty-five-year period for five of the life sentences for first degree murder, all served concurrently, and a reduced period of fifteen years for the sixth first degree murder, served consecutively (that is to say, after the first five had run through their twenty-five years). The provision which allows for the consecutive serving of life sentences was introduced in 2011, when Parliament amended the Criminal Code to include s 745.51, which outlines that a judge may, if “an offender who is convicted of murder and who has already been convicted of one or more other murders . . . decide that the periods without eligibility for parole for each murder conviction are to be served consecutively.” 2 Theoretically, Bissonnette could have been sentenced to a good deal more years than it would ever have been possible for him to live. Indeed, Huot JSC notes, Canadian courts have since sentenced in this way: in R v Bourque, the accused, Justin Bourque, was convicted of three counts first degree murder for killing three RCMP officers in Moncton, New Brunswick, along with two counts of attempted murder for shooting two others; his parole ineligibility was set at seventy-five years: three twenty-five-year periods served consecutively.3 Bourque will be eligible for parole when he is ninety-nine years of age.
Huot JSC declined to go this route, stating that “in the case of first degree murder, [s 745.51] allows only consecutive sentences of twenty-five years, which is overly disproportionate in every case . . . life imprisonment without the possibility of parole before fifty years or more is a sentence that is irreducible in fact and in law and contravenes human dignity.”4 This sort of mindless sentence would be ineffective for any real purpose other than throwing the book at him over and over again, but he still wanted to demonstrate that such a heinous crime would carry more severe consequences than the average first degree murder. Holding that to impose consecutive twenty-five-year sentences that could keep a person imprisoned for well beyond their lifespan would be to infringe upon both their s 7 and s 12 Charter rights, and that it was not possible to save it using s 1 of the Charter, he declared s 745.51 of the Criminal Code unconstitutional. Instead of striking it down, however, he reworded it, in order to allow himself the ability to exercise discretion in the setting of the parole ineligibility period in accordance with ss 718–718.2 of the Criminal Code, and the principles of denunciation and deterrence emphasized therein, along with principles of fundamental justice. In this way, he could increase the parole ineligibility period to more than twenty-five years whilst seemingly maintaining its constitutionality. 5
Both the Crown and Bissonnette appealed the trial ruling; the Crown sought fifty years of parole ineligibility, whereas Bissonnette sought twenty-five. The Quebec Court of Appeal sided with Bissonnette, and held, in a unanimous ruling, that a forty-year parole ineligibility period was not in keeping with the Constitution. 6 It agreed with Huot JSC that the provision for consecutive sentences of twenty-five year periods was unconstitutional, but maintained that reading in was not an appropriate means of dealing with the issue, and, instead of rewriting the law, he simply should have struck it down and sentenced Bissonnette to the usual twenty-five year parole ineligibility period. Anything greater than this would not serve any purpose, as the sentence was a life sentence, and greater parole ineligibility does nothing but infringe upon Charter rights.
One tends to think this is the appropriate decision. This is not to say that the crime committed by Bissonnette is somehow more trivial in nature so as to warrant a lesser sentence. The twenty-five years is not the duration of the sentence; the sentence is for life. Such a sentence is still the maximum that can be imposed, and the conviction will remain with Bissonnette until the end of his life, with all the conditions and stigma attached thereto. Twenty-five years must pass before he will be eligible for parole, but this does not mandate that he be released after twenty-five years of imprisonment; rather, it simply restores his sentence to one that meets normal Canadian standards. The normal Canadian standard is to imprison such serious offenders for their lives. Canada is a civilized, rights-based society, and this means that we are only able to restrict people’s rights by means of imprisonment in ways that are not excessive, cruel, or inhumane, and only as much as it is necessary in order to maintain safety, peace, and order in society. 7
There will be instances where individuals serving a life sentence will have completely repented of their wrongdoings, and are at an extremely low risk to reoffend. In the same way, there may be instances where individuals serving life sentences are extremely dangerous people who could never walk again amongst the public. In a rights-based society such as ours, consistency is paramount. Such people are being punished as much as they can be, and it may be that some of them can regain, and perhaps even deserve the option of regaining, some degree of their freedom back again, in being granted parole. Such a possibility, however, must be made available to all offenders, for the purposes of consistency. Its availability, however, exists insofar as it is a possibility, and it is conditional. It does not mean it will be granted to anyone, and it does not mean anyone has a right to it. It only means one has the right to be considered for it. In the cases where parole is not granted, it is in effect merely a procedural undertaking, to demonstrate to both the prisoner and to society that society upholds its own standards.
There is greater value in punishment for the purposes of rehabilitation than there is in punishment for the purposes of punishment. The former is far more civilized and mature than the latter, which is crude and spiteful. For example, death sentences do not allow one to reflect on what they have done, and perhaps be tormented by it, regret it, and attempt to correct themselves, in the way that a life sentence offers. To force someone to live with the consequences of what they have done is in many ways the ultimate way of honouring the victims of their crimes, and could very well be said to be one of the most sophisticated means of punishment. But actually, having a fixed point in time at which the possibility of parole becomes available to an offender can serve as initiative, for those so inclined to act upon it, to indeed attempt to correct themselves, rather than wasting away uncaringly and hopelessly without any sort of reason to try to improve. And in some instances, it might be desirable not to have people in prison for longer than is necessary. Take, for example, the case of Bourque, someone who actively attempted to and succeeded on some of those attempts to murder police officers; the stigma they are subjected to, and the life they have to lead, would likely be greater and more difficult outside of the prison system than inside it.
How the Crown will proceed with respect to this ruling remains to be seen, as the decision of the Quebec Court of Appeal is at present little over a fortnight old. Leave to appeal to the Supreme Court of Canada would need to be sought, as there was no dissenting opinion from the Appeals Court. I would imagine that, were the Crown to attempt to move this forward, the Supreme Court would hear it, due to the sheer magnitude of the case, as well as the serious legal issue that is present in the Criminal Code and its relevance to Canada as a whole. One tends to think that the Supreme Court would be generally of the same view as the Quebec Court of Appeal, who seems to be correct in this instance. Such a ruling would have serious implications on other sentences, such as that of Bourque, and future developments in this case would be very interesting to watch, and have, potentially, very serious implications, should any take place.
1. R c Bissonnette, 2019 QCCS 354 [Bissonnette], rev’d in part 2020 QCCA 1585.
2. Criminal Code, RSC 1985, c C-46, s 745.51.
3. Bissonnette, at paras 650–52. See R v Bourque, 2014 NBQB 237.
4. Ibid at paras 287–88 (translated by author).
5. Ibid at paras 1206–12.
6. Bissonnette c R, 2020 QCCA 1585, rev’g in part 2019 QCCS 354..
7. See Canadian Charter of Rights and Freedoms, ss 7, 12, Part I of the Constitution Act, 1982, being schedule B to the Canada Act, 1982 (UK), 1982, c 11 (those provisions cited as infringed upon by the lack of possibility of parole for greater than twenty-five years).