The Moot Times UCalgary Law
R v Bissonnette: A proportional reaction?
By Ro Burrington
Mamadou Tanou Barry. Azzeddine Soufiane. Abdelkrim Hassane. Ibrahima Barry. Aboubaker Thabti. Khaled Belkacemi. These are the names of the six men murdered by Alexandre Bissonnette when he opened fire on worshippers at a Quebec City mosque on January 29th, 2017. It is on the back of this atrocity and the ensuing criminal trial that the Supreme Court of Canada unanimously declared s.745.51 of the Criminal Code to be invalid in May of last year. This is the provision that allowed judges to impose consecutive periods of ineligibility for parole for people convicted of multiple counts of first degree murder.
At trial, the Crown prosecutor asked that Bissonnette be ineligible for parole for a period of 150 years—25 years for each of his six victims. The sentencing judge rejected this, but set parole eligibility at 40 years, making use of the discretion afforded by s.745.51. However, the SCC’s invalidation of this provision means that consecutive parole ineligibility periods can no longer be imposed. For those charged with first-degree murder, the parole ineligibility period is set at 25 years. For Bissonnette, this ruling means that, despite taking the lives of six people and injuring several others, he will be eligible for parole in 25 years. He will be 52.
The Court justified their decision on the basis that consecutive parole ineligibility periods are in contravention with section 12 of the Canadian Charter of Rights and Freedoms, which states “everyone has the right not to be subjected to any cruel and unusual punishment or treatment.” A punishment will infringe section 12 of the Charter if it is grossly disproportionate to the crime committed in a given case, or if it is cruel and unusual by nature, and thus “intrinsically incompatible with human dignity.”
The fundamental principle of sentencing, as enshrined in section 718.1 of the Criminal Code, is that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” It is a well-worn adage in the legal profession that its constituents are not, shall we say, the most mathematically gifted individuals to grace the earth. But I think even the most numerically-challenged of us can accept that 6 x 25 does not, in fact, equal 25.
The Court explains that a punishment is cruel and unusual by nature if it is “so inherently repugnant that it could never be an appropriate punishment, however egregious the offence.” I agree with the Court that setting parole eligibility at 150 years, a period unattainable for even the heartiest of individuals, seems inappropriate, regardless of the circumstances of the case. That being said, I am also unconvinced that the punishment for violently taking the lives of six people should be the same as that for a single murder. A representative of Quebec’s Islamic community expressed the community’s disappointment with May’s ruling, stating that “this decision fails to take into due consideration the atrocity and the scourge of the multiple murders,” and I am inclined to agree.
It feels almost sacrilegious to disagree with a unanimous Supreme Court decision. As I write this I find myself half expecting Kevlar-clad SWAT agents to crash through my bedroom window and arrest me for even harbouring such a notion. I hope they don’t. That would scare my cats. I digress. My concern is this: that in their admirable desire to not exceed the “limits on the state’s power to punish offenders,” the SCC has lost sight of the importance of proportional sentencing in our justice system, and in doing so have devalued the individual lives of Bissonnette’s six victims.