The Québec Court of Appeal errs in thinking the Charter prevents the imposition of, in effect, life imprisonment without parole
By Léonid Sirota & Maxime St-Hilaire, crossposted from Double Aspect
What punishment is just for someone who takes the lives of many other human beings? And what punishment for such a person is constitutional? In Bissonnette v R, 2020 QCCA 1585answers the latter question, and its answer is at odds with the answer to the former. In an unattributed unanimous opinion, the Court holds that a provision of the Criminal Code that allowed―but did not require―sentencing judges to stack minimum parole ineligibility periods imposed for multiple counts of first-degree murder is unconstitutional. The Court finds that the very possibility of such stacking is cruel and unusual punishment prohibited by section 12 of the Canadian Charter of Rights and Freedoms, and a deprivation of liberty and security of the person contrary to the principles of fundamental justice prohibited by section 7 of the Charter.
The sentencing judge in R v Bissonnette, 2019 QCCS 354 thought that the ordinary sentence of life imprisonment without parole eligibility for 25 years would not have been adequate. However, he also found the stacking of multiple 25-year periods constitutionally objectionable, and took it upon himself to rewrite the Criminal Code so as to give himself the discretion to fashion what he took to be the appropriate sentence of life imprisonment without parole for a 40-year period. The Crown appealed the finding of unconstitutionality, while Mr. Bissonnette appealed the sentencing judge’s remedy (which the Crown defended as an alternative).
The Court of Appeal first considers whether the stacking of parole ineligibility periods amounts to cruel and unusual punishment. In its view, the fact that such stacking is not required and can be ordered at a judge’s discretion does not remedy its constitutional defects: “notwithstanding the existence of a discretionary power by which the judge can refrain from imposing a cruel and unusual sentence, the provision is invalid simply because it authorizes a judge to impose such a sentence”.  It clarifies, however, that a discretionary sentence that will be cruel and unusual in some cases ought to be upheld if it will nevertheless be proportionate in others. Thus “the question to be resolved is this: are there situations in which it would not be cruel and unusual to impose minimum parole ineligibility periods of 50, 75, 100, 125, 150, indeed 1,000, years?” 
The Court takes the position that there are no such situations. Indeed, in its view, the idea is simply irrational. For one thing, “the number of victims to be used as a basis for a judge to stack periods of ineligibility is a legislative choice that is difficult to reconcile with the sentencing criteria in place in Canada”.  The possibility of a court “imposing a parole ineligibility period that highly exceeds the life expectancy of any human being”  is particularly disturbing. For the Court of Appeal, “[a] court must not make an order that can never be carried out”, because this “brings the administration of justice into disrepute” and amounts to “senselessness” that “is, in and of itself, cruel and unusual punishment … degrading because of its absurdity”.  Indeed, even a sentence of life imprisonment without parole “is at least tied to the lifetime of a human being, while ineligibility periods totalling 100 years and more have nothing in common with the duration of a human life”. 
But the problem the Court sees with stacked parole ineligibility periods, even just two, is more than just irrationality. It also has to do with the possibility that a rehabilitated offender would be denied the opportunity to apply for parole:
An inmate rehabilitated after 25 years and not eligible to apply for parole before a second 25-year period would, in all cases, be subject to cruel and unusual treatment. The excessive length of the unnecessarily prolonged incarceration would be grossly disproportionate. … 
For the Court of Appeal, “preventing a reformed accused from having genuine access to the parole application process”  is in itself a fatal constitutional flaw, compounded by the fact that the sentencing “judge is not in a position, barring speculation, to genuinely know the likelihood that the accused will be rehabilitated in 25 years. He is in an even worse position, if that is possible, when dealing with a period of 50 years.”  This flaw cannot be justified under section 1 of the Charter.
The Court then turns to section 7 of the Charter. It notes that sentencing judge’s findings that not only are stacked parole ineligibility periods a deprivation of liberty, but also that “an actual irreducible sentence of imprisonment for life”  produce psychological impacts that amount to a deprivation of the prisoners’ security of the person are not challenged. The issue is whether these deprivations accord with principles of fundamental justice.
The Court of Appeal does not follow the judge below in accepting the protection of human dignity as a principle of fundamental justice and finding that it too has been breached. For it, two such principles are at play: the prohibitions on overbreadth and gross disproportionality. Both are assessed relative to the objective of the impugned legislation. The purpose of allowing sentencing judges to stack parole ineligibility periods for multiple murders is to “(1) protect society from the most incorrigible killers, and (2) restore the balance between the rights of victims and those of multiple murderers and acknowledge the value of ‘every life lost’”. 
The Court finds that the possibility of stacking parole ineligibility periods is overbroad “because it applies to all multiple murderers, regardless of the specific circumstances of each case”,  and not “only to psychopaths, organized crime hitmen or incorrigible murderers”.  Some might be sentenced to extended parole ineligibility without being unusually dangerous. The rule thus produces effects not rationally connected to its ostensible objectives, and so is overbroad. Nor is the stacking of parole ineligibility periods rationally connected to acknowledging every victim, since in any case a person so sentenced is likely or bound to die before all of the consecutive periods have elapsed. Such sentencing is also grossly disproportionate to its stated objectives. The overbreadth and gross disproportionality cannot be justified in a free and democratic society.
The last question for the Court is that of the remedy. Unlike the judge below, it holds that it must simply declare the possibility of stacking ineligibility periods invalid, “without being rewritten by the courts”.  It is clear that Parliament considered and rejected the solution adopted by the sentencing judge ― granting judges discretion as to the duration of parole ineligibility beyond the usual 25 years for a first-degree murder. It would not be appropriate for courts to impose it anyway.
In our view, the Court of Appeal’s judgment is less troubling than that of the Superior Court, which we criticized here. In particular, it is important to note that the Court takes the correct approach to the question of the remedy ― assuming, of course, that its conclusion of unconstitutionality is also correct. But it is not. The Court of Appeal’s reasoning on the issue of constitutionality misapprehends the inquiry and consequently falls into doctrinal error, as well as moral myopia.
Indeed, its most fundamental flaw is one that it ascribes to the legislation it pronounces unconstitutional: a refusal to engage with the circumstances and deserts of the individual accused. The very first sentence of the Court’s reasons proclaims that
[t]his judgment is not about the horror of Alexandre Bissonnette’s actions on January 29, 2017, nor even about the impact of his crimes on an entire community and on society in general; it is, rather, first and foremost, about the constitutionality of a provision of the Criminal Code. 
The Court subsequently adds that “[t]he analysis of the provision’s constitutionality must be carried out independently of the appellant’s case, notwithstanding the horror of his actions”.  The Court no doubt means this as a reminder that even the worst wrongdoers have rights under the Charter, which must be not be overlooked by focusing on their wrongdoing alone. That is true, so far as it goes. But there is a reason why Canadian courts normally assess the constitutionality of legislation on the facts of particular cases rather than in the abstract. This case, which is, pace the Court of Appeal, about the sentencing of man who murdered six worshippers at a mosque in Québec City and injured 19 others, ought to have been a reminder of that fact.
In the Supreme Court’s first explication of section 12 of the Charter in R v Smith,  1 SCR 1045, Justice Lamer (as he then was) wrote that
[i]n assessing whether a sentence is grossly disproportionate, the court must first consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender. … Section 12 ensures that individual offenders receive punishments that are appropriate, or at least not grossly disproportionate, to their particular circumstances. (1073)
In other words, contrary to the Court of Appeal’s approach, the offence and the offender ― including “the horror of his actions” are the primary consideration in assessing an alleged infringement of section 12. The Supreme Court has followed this approach more recently too, including in R v Boudreault, 2018 SCC 58,  3 SCR 599. The Court of Appeal neglects “to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender”, and this failure warps its subsequent analysis.
In particular, the Court of Appeal is single-mindedly focused on the issue of rehabilitation as the overriding consideration in deciding whether stacked parole ineligibility periods can ever be a constitutionally acceptable punishment. But, focusing on the facts before it, the Court ought to have remembered that ― as Justice Lamer suggested in Smith ― rehabilitation is not necessarily the primary factor in deciding on a fit sentence. Sometimes, the need to punish will dominate. This is not a crass desire for vengeance, but a recognition that different circumstances ― different offenses and different offenders ― call for different responses on the part of society.
A comparison with the sentencing judgment of the New Zealand High Court in the case of the Christchurch mosque shooter, R v Tarrant  NZHC 2192, is relevant. As one of us (Sirota) has explained here, in that case Justice Mander found that
no minimum period of imprisonment would be sufficient to satisfy the legitimate need to hold [the shooter] to account for the harm [he] ha[d] done to the community. Nor [would] minimum term of imprisonment would be sufficient to denounce [his] crimes. 
Ironically, the Court of Appeal refers to the Christchurch shooting, noting in a footnote that “the Christchurch massacre (51 victims) could have resulted in a period of 1,275 years” of parole ineligibility. For the Court this is self-evidently absurd. But for the judge who actually sentenced its perpetrator only a sentence of life imprisonment without parole would have sufficed.
This illustrates the fact the Court of Appeal has no regard to deserts of the man before it ― in violation of another cardinal principle of sentencing, that of the indivudalization of the sentence. It is also confused about the significance of the fact that a sentencing judge retains the discretion as to whether to sentence a given offender to a stacked period of parole ineligibility, at one point suggesting that this discretion is of no significance. Like it or not, Parliament enacted a law that allows individualized, if rough, justice. The Court of Appeal, by contrast, reasons entirely in the abstract.
Now, Parliament’s response to the prospect of vicious mass murder is, in our view, rather clunky. It would have been more straightforward, indeed more honest, to make sentences of life imprisonment without parole available, just as the New Zealand Parliament has done, instead of simply stacking non-eligibility periods until they quickly reach the same point. But the Court of Appeal does not really argue ― it merely asserts ― that the absurdity of extended ineligibility periods is inherently cruel. The person sentenced to such a punishment will understand what it means. And as for the claim that stacked parole ineligibility periods, because they cannot be served in full, discredit the administration of justice, it is simply beside the point. Section 12 of the Charter is concerned with justice to the offender, not the courts’ opinion of themselves.
As for the Court of Appeal’s reasoning on section 7 of the Charter, it also suffers from the Court’s failure to account for the discretionary nature of the stacking of parole ineligibility periods permitted ― not required! ― by the Criminal Code. The Court says that in some cases a stacked sentence can be imposed on multiple murderers who are not among the worst of the worst, and so not the sort of offender to deal with whom the stacking was permitted. But if indeed such a sentence is inappropriate ― and it is worth noting yet again that, as this very case highlights, the categories of the incorrigible are not closed, and are not limited to “psychopaths” and “organized crime hitmen” ― the sentencing in the particular case can be overturned on appeal. It seems that the Court of Appeal, like the judge below, simply does not trust to the discernment of other judges.
Like the Court of Appeal and the Superior Court, and like the New Zealand High Court, we believe that sentencing ― even for terrorist mass murderers ― must not be an exercise in raw vengeance. It is a good thing that Parliament’s authority to direct sentencing is constitutionally constrained. It is all too true that Parliament can sometimes demand punishment incommensurate to crime, especially when it seeks to curtail the sentencing judges’ ability to assess the actions and culpability of the offender in a pursuit of a law that will be equally harsh to all.
But nor can sentencing lose sight of the actions for which the sentence is being imposed. It would be a perverse constitution that required this, and fortunately the Charter is not so perverse. The principles consistently set out by the Supreme Court make clear both that the primary responsibility for sentencing policy is Parliament’s, and that applying constitutional constraints on Parliament must only serve to prevent abuses ― not to become an exercise in abstract, and ultimately soulless, humanitarianism. We hope that the Supreme Court will step in and reassert these principles once more in this case.