The Quebec Court of Appeal ruled Thursday that Alexandre Bissonnette, who murdered six worshippers at a Quebec City mosque in 2017, cannot be denied a parole hearing for a period longer than 25 years. Section 745.51 of the Criminal Code, introduced by a Conservative government in 2011, allows periods of ineligibility for parole to be “stacked” for multiple murderers like Bissonnette. Crown prosecutors in Bissonnette’s case tried to use the provision in the way it was intended: they wanted to leave no possibility of Bissonnette ever leaving prison, and asked the judge to stack up 25-year periods beyond the conceivable span of the assassin’s life.
The trial judge recognized some chance of Bissonnette being rehabilitated, and tried awkwardly to split the difference between 25 years without parole and 50, sentencing the killer (now aged 30) to 40 years without parole. The law did not really provide for such a manoeuvre, and the appeal court doesn’t think much of it — but, then, nobody ever did.
Rather than extend Bissonnette’s ineligibility period to 50 years, the court has declared Sec. 745.51 to be of no force in Quebec on the grounds that life imprisonment without parole is cruel and unusual punishment, and thus offensive to the charter.
“Cruel and unusual punishment” was not originally the unitary, indivisible concept it has since become. The law was permitted to behave cruelly in traditionally accepted ways, such as hanging a highwayman to death, and innovative punishments could be devised as long as they were not outrageous to the public. The idea was to keep torture, and penalties tantamount to torture, out of the law. Now, I am afraid, “cruel and unusual punishment” means just what a judge personally would like it to mean on a particular day.
The quality of the court’s reasoning in this case reveals this. The case for actual lifelong imprisonment being “cruel and unusual” is made almost entirely by pure assertion — by truncheon-like wielding of adjectives. The key question, as the judges frame the issue, is whether 50 or 75 or 100 years without parole is inherently “grossly disproportionate” to any imaginable murderer’s offence. In Bissonette’s case, we are talking about a murder that was premeditated and planned, was inflicted on defenceless innocents at prayer, was almost completely indiscriminate, was motivated by religious hatred and was successfully designed to induce fear in every Muslim citizen of Canada.
But the court, trying to establish rationalist bona fides, begins its written deliberation by asserting that, “This judgment is not about the horror of Alexandre Bissonnette’s actions on Jan. 29, 2017, nor even about the impact of his crimes on an entire community and on society in general.” The judges certainly right, for the nature and purpose of Bissonnette’s actions is flung aside in their analysis of the proportionality of his sentence. But if what Bissonnette did is of no import, what precisely is his punishment supposed to be proportionate with?
Canadian case law emphasizes that the standard for cruel and unusual punishment involves an implied appeal to the collective conscience of Canadians. No effort is made to establish that Canadians would be outraged by keeping Bissonnette locked up forever; I think I know what Canadians would tell you about that if you polled them. In fact, the judgment is very careful to emphasize that Bissonnette will not necessarily receive parole given the chance to apply. It is almost as if the judges really know that parole for loathsome and inexcusable crimes isn’t particularly popular, and that they are substituting their own consciences for ours.
The effect of this ruling is to do what other courts have hesitated over, and to make parole a matter of justiciable right (at least in Quebec). Parole boards will also retain the practical power, now taken away from Quebec judges, to actually keep convicts confined for life. The ruling, reassuring the reader again in a revealing way, anticipates that this will happen often. It’s a justicial Zen koan: how can it be constitutional for parole boards to do what is unconstitutional for a judge?
The ruling itself observes that, “Until now, Canadian courts have rejected the argument that the loss of hope of release may constitute an inhuman and degrading treatment within the meaning of Sec. 12 of the charter.” This would seem to imply some doubt, even in the bosoms of the court’s peers, whether unconditional imprisonment for life is per se “cruel and unusual.”
But the fact that some judges have declined to “stack” ineligibility periods — using the discretion that the impugned section of the Criminal Code gave them — somehow becomes an argument in itself for eliminating that discretion, and erasing the section itself from the code. This looks like a logical gap to me, but I’m no lawyer; as a newspaperman I share a judge’s privilege of flabby opinionating without consequences.
The decision also makes a show of analyzing the legislative history of the 2011 “stacking” provision, introduced as a conscious reaction to the prospect of parole hearings for sadistic and incorrigible serial killers (as opposed to nice kids who spray houses of worship with bullets). The old Liberal regime, in which everybody had a crack at parole after 25 years and violent crimes were perpetrated in quantities now unthinkable, is treated as an irreversible axiom of the cosmos. The later Conservative changes, made because almost every sentient being agrees that some people just shouldn’t be let out of prison if we can’t kill ’em, are deemed a dubious aberration. You know what they say down on the farm: all parliaments are supreme, but some are more supreme than others.
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