Parole ineligibility reduction not sentence reduction: Criminal lawyers react to R. v. Bissonnette

Decision highlights differing values between Canada and U.S., say lawyers

Parole ineligibility reduction not sentence reduction: Criminal lawyers react to R. v. Bissonnette
Julius Grey, John Hale, Ryan Handlarski, Stéphane Beaulac

Criminal lawyers who spoke with Canadian Lawyer applauded the Supreme Court of Canada’s defence of rehabilitation as a core tenet in sentencing in R. v. Bissonnette and clarified some misinformation which arose in response to the ruling.

Last Friday, a unanimous SCC confirmed that s. 745.51 of the Criminal Code amounts to cruel and unusual punishment, contrary to s. 12 of the Charter. The provision allows judges to order that parole-ineligibility periods served by those convicted of multiple counts of first- or second-degree murder be served consecutively rather than concurrently.

Section 745.51 came from the Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act. The former Conservative federal Justice Minister Rob Nicholson sponsored the legislation, which received Royal Assent in 2011. The SCC’s ruling strikes down the provision retroactively to its enactment.

Since the decision came down, John Hale, an Ottawa criminal lawyer and a vice-president of the Criminal Lawyers’ Association, says he has seen an inaccurate conflation between a reduction in parole ineligibility and a reduction in sentence.

“That is so far from the truth,” he says. “The fact that a person is eligible for parole doesn’t mean they’re getting parole. There are still significant hurdles. We saw it with Clifford Olson. We all knew he was never going to get parole, and he never did get parole. He died in jail.”

The SCC also noted that a person released on parole would continue serving a sentence, being under strict supervision with the possibility of returning to prison until they die, says Hale.

After the SCC delivered the ruling, former Prime Minister of Canada Stephen Harper tweeted that it was a “grave injustice,” which “devalued the lives of [Bissonnette’s] victims” and “calls for action from Parliament.”

Conservative Party leadership candidate Pierre Poilievre also put out a statement denouncing the decision. He said it would allow other mass murderers to have their “sentences slashed,” including Alek Minassian, who killed 11 people in the Toronto van attack. Poilievre promised that if elected Prime Minister, he would use the notwithstanding clause to restore s. 745.51.

“Poilievre, and Stephen Harper, for that matter, have criminal law all wrong,” says Julius Grey, a constitutional lawyer at Grey Casgrain in Montreal. “Criminal law is not about some sort of fearful incarceration of people, but it’s about finding a reasonable balance between punishment and rehabilitation.”

“When you hear of people in the United States being sentenced to 250 years in prison, and when you hear of them opening geriatric wards in penitentiaries when people in their 80s and 90s, who have been there for 60 years, 50 years, are ending their life, it is a waste, an expense, and a travesty. It’s an injustice… The American system of justice is a horror. I know that Mr. Harper and Mr. Poilievre would like to bring that in. But God help us. Ours is so much more merciful and so much more decent.”

Poilievre’s statement amounts to an attack on the democratic norm of an independent judiciary, says Ryan Handlarski, a criminal lawyer in Toronto. “It’s one thing to say, ‘I respectfully disagree with the court’s decision,’ but we move on as a society. It’s another thing to say that they’ve slashed the sentences of multiple murderers. Not true. The sentence is life. That doesn’t change.”

“These are nine of the foremost legal minds in the country who have unanimously said that crushing any hope of rehabilitation violates human dignity in s. 12 of the Charter and is of no force and effect. I don’t think that any politician is better placed than the Supreme Court to determine that issue,” says Handlarski.

The political statements, and Harper’s call on Parliament to act, reminded Handlarski of the Gerald Stanley verdict. When the verdict was released, federal NDP leader Jagmeet Singh said there was “no justice” for Colten Boushie, whom Stanley shot dead in 2016. After the defence used peremptory challenges to eliminate Indigenous jurors from jury selection, the federal Liberal government amended the Criminal Code to get rid of them in 2019.

“It doesn’t matter what angle the politician is coming from,” he says. “I find it very concerning. Because we have different roles to play in a democratic society. Politicians have their role, and judges have their role. This one is strictly within the role of the Supreme Court to analyze whether a law is constitutional.”

Chief Justice Richard Wagner wrote that a punishment is cruel and unusual when it cannot be imposed in accordance with human dignity because it is, by nature, degrading or dehumanizing. “It is degrading in nature in that it presupposes at the time of its imposition that the offender is beyond redemption and lacks the moral autonomy needed for rehabilitation.” Excessive sentences, which far exceed human-life expectancy, lose their functional value. And the imposition of sentences which fulfill no function bring the justice system into disrepute and undermine public confidence in its “rationality and fairness,” wrote Justice Wagner.

“Parliament may not prescribe a sentence that negates the objective of rehabilitation in advance, and irreversibly, for all offenders.”

Justice Wagner wrote in a non-technical manner, as if he were addressing the general public, who will potentially see the decision as “totally out-of-touch with reality,” says Stéphane Beaulac, a law professor and counsel at Dentons in Montreal. Beaulac was counsel for the intervenor, the Observatory on National Security Measures, a research group from the University of Montreal that studies legislation dealing with state intelligence and counterterrorism.

“They address, in almost layman’s terms, what will likely be the intuitive reaction, the gut-feeling-type of reaction,” says Beaulac. Justice Wagner writes that the court has not forgotten the importance of the lives lost, nor the other “heinous crimes” that the criminal justice system must address. In addressing them, the court says that “we must not lose track of how some values are unconditional, that need to be protected, even in the face of the greatest evil,” he says.

Justice Wagner repeatedly references human dignity and acknowledges it to be “at the core of Canadian values,” says Hale. in response to the “worst crimes, with the worst offenders, Canada must respect the dignity of the individual,” he says.

Another aspect of the decision which will be helpful in other criminal cases is Wagner’s comments that, even where denunciation and deterrence are the paramount objectives in sentencing, “the door has to be left open to rehabilitation,” Hale adds. “Rehabilitation is always an objective of sentencing. Even if it’s not paramount.”

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