The Law
Section 12 of the Canadian Charter of Rights and Freedoms, as part of the Constitution of Canada, is a legal rights section that protects an individual’s freedom from cruel and unusual punishments in Canada. Cruel and unusual punishment is a phrase in common law describing punishment that is considered unacceptable due to the suffering, pain, or humiliation it inflicts on the person subjected to the sanction.
The precise definition varies by jurisdiction, but typically includes punishments that are arbitrary, unnecessary, overly severe compared to the crime, or not generally accepted in society. The Canadian courts in numerous different case laws have tried to operationalize what does and does not constitute cruel and unusual punishment. Section 7 of the Charter includes a related principle, prohibiting grossly disproportionate limitations of the right to life, liberty and security of the person.
Note, however, that with respect to criminal sentencing, the gross disproportionality standard in section 7 is the same as it is under section 12.
In other words, the section 7 principle against gross disproportionality would not give rise to a constitutional remedy against a criminal sentence if that sentence is in accordance with section 12. The Supreme Court has never directly defined an underlying purpose for section 12. However, it is clear from the case law that section 12 prohibits the imposition of certain treatments or punishments, through a contextual assessment of “the effect that the [treatment or] punishment may have on the person on whom it is imposed” balanced against the objective for that treatment or punishment.
Section 12 prohibits treatment or punishment that is “grossly disproportionate” in the circumstances; in other words, one that would “outrage our society’s sense of decency” such that Canadians would find it “abhorrent or intolerable”. The test of gross disproportionality requires that a number of factors be carefully examined and weighed against each other:
- The gravity of the offence;
- The personal characteristics of the offender;
- The circumstances of the offence;
- The effect of the sentence on the offender and other claimants;
- Whether the punishment is necessary to achieve a valid penal purpose (Is Parliament responding to a pressing problem?);
- Whether the punishment is founded on recognized sentencing principles;
- Whether valid alternatives to the punishment exist;
- Comparison with punishments for other crimes within the jurisdiction to determine proportionality;
- Comparison with punishments for similar crimes in other jurisdictions
The Crime
Bissonnette pleaded guilty in March 2018 to six counts of first-degree murder and six of attempted murder. His murder victims were Mamadou Tanou Barry, 42; Abdelkrim Hassane, 41; Khaled Belkacemi, 60; Aboubaker Thabti, 44; Azzeddine Soufiane, 57; and Ibrahima Barry, 39. In addition to the men killed, five others were struck by bullets.
Witnesses to the crime described the former student, then 27, entering the Islamic Cultural Centre and calmly opening fire on the crowd gathered for evening prayers.
Quebec Superior Court Justice Francois Huot concluded during sentencing that the consecutive sentencing provision, which would have allowed him to sentence Bissonnette to 150 years in prison, amounted to cruel and unusual punishment.
But he also decided that 25 years was too little for Bissonnette, who he said was driven by “racism and hatred” when he stormed the mosque.
In the end, he sentenced Bissonnette to concurrent life sentences for five murders, and on the sixth added 15 years to bring the total to 40.
The decision was appealed by both the defense and the Crown, who argued for parole eligibility of 25 years and 50 years, respectively.
The Criminology
On November 26th, 2020 that sentence has been reduced to 25 years by Quebec Court of Appeal decision, which took issue with a 2011 amendment to the Criminal Code that allowed life sentences to be served one after another rather than concurrently, as was previously the case.
The three-judge panel wrote that while a decision to set parole eligibility at 100 or more years “may give some people a sense of satisfaction,” it is “grossly disproportionate” because it exceeds the person’s expected lifespan. “It contemplates a possibility that will never be able to come to fruition,” the decision read. “This is why the provision is absurd and constitutes an attack on human dignity.”
Now what does that mean? Firstly, the decision does not mean that Bissonnette will be released in 25 years, it simply means that he will be eligible to apply for parole in 25 years. Note that the original sentence, which still stands, is that he has been sentenced to life in prison. Therefore, he will remain under the supervision of Her Majesty’s Prison Service [Correctional Services of Canada] for as long as he lives.
Just because an offender becomes eligible for parole does not necessarily mean that they will be granted one. Also, if they are released [temporarily released] they must abide by several conditions. Breaching any one of those conditions will mean revocation of release which puts them back in prison.
We have several violent offenders in our prison system who have committed acts that have shaken humanity at its core. The likes of Robert Pickton, Paul Bernado, Douglass Garland, have all committed terrible acts and have a set period for their parole eligibility. However, one of the central premises for the parole board when deciding on cases is public safety.
In my opinion I do not see these offenders ever being released. So, does bringing down the eligibility to 25 make any difference? Yes and no. Yes, because it allows offenders to reform and maintain good behavior while in prison. No, because the worst of the worst have committed acts so uncomprehensive, that they will end their days in confinement.
But if that is the case then why even bother reducing the eligibility period to 25 years? The answer is to preserve the integrity of the criminal justice system. Anything more than 25 years constitutes cruel and unusual punishment. This is something that has been decided by our courts while keeping in mind Canadian values.
Courts have constantly rebuked consecutive sentencing as unconstitutional. Consecutive sentencing was introduced by the Harper administration as part of their tough on crime Bill.
Majority of the policies passed by the Torries Crime Omnibus Bill [C-10] has been overturned by the Supreme Court of Canada who found them unconstitutional. The take away -is our legal system perfect?
No, not by many leagues-but we do have a legal system like no other. One that is based on reason, humanity and common sense. So next time when you hear the words ‘lets lock’um up and throw away the key’, ask yourself if that will constitute cruel and unusual punishment.
Ask yourself if just because a person has violated natural laws that we should do the same. Ask yourself if it is Canadian to inflict cruel and unusual punishment upon others.
