R. v. Bissonnette

R. v. Bissonnette
Collection
Supreme Court Judgments
Date
2022-05-27
Neutral citation
2022 SCC 23
Case number
39544
Judges
Wagner, Richard; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud
On appeal from
Quebec
Subjects
Constitutional law
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Bissonnette, 2022 SCC 23
Appeal Heard: March 24, 2022 Judgment Rendered: May 27, 2022 Docket: 39544
Between:
Her Majesty The Queen and Attorney General of Quebec Appellants
and
Alexandre Bissonnette Respondent
- and -
Attorney General of Canada, Attorney General of Ontario, Attorney General of Nova Scotia, Attorney General of British Columbia, Attorney General of Alberta, Association des avocats de la défense de Montréal-Laval-Longueuil, Queen’s Prison Law Clinic, Toronto Police Association, Canadian Police Association, Karen Fraser, Jennifer Sweet, Nicole Sweet, Kim Sweet, John Sweet, J. Robert Sweet, Charles Sweet, Patricia Corcoran, Ann Parker, Ted Baylis, Sharon Baylis, Cory Baylis, Michael Leone, Doug French, Donna French, Deborah Mahaffy, Observatory on National Security Measures, Independent Criminal Defence Advocacy Society, Canadian Prison Law Association, National Council of Canadian Muslims, Canadian Civil Liberties Association, British Columbia Civil Liberties Association and Canadian Association of Chiefs of Police Interveners
Official English Translation
Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
Reasons for Judgment: (paras. 1 to 148)
Wagner C.J. (Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring)
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
Her Majesty The Queen and
Attorney General of Quebec Appellants
v.
Alexandre Bissonnette Respondent
and
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of Nova Scotia,
Attorney General of British Columbia,
Attorney General of Alberta,
Association des avocats de la défense de Montréal-Laval-Longueuil,
Queen’s Prison Law Clinic,
Toronto Police Association,
Canadian Police Association,
Karen Fraser,
Jennifer Sweet,
Nicole Sweet,
Kim Sweet,
John Sweet,
J. Robert Sweet,
Charles Sweet,
Patricia Corcoran,
Ann Parker,
Ted Baylis,
Sharon Baylis,
Cory Baylis,
Michael Leone,
Doug French,
Donna French,
Deborah Mahaffy,
Observatory on National Security Measures,
Independent Criminal Defence Advocacy Society,
Canadian Prison Law Association,
National Council of Canadian Muslims,
Canadian Civil Liberties Association,
British Columbia Civil Liberties Association and
Canadian Association of Chiefs of Police Interveners
Indexed as: R. v. Bissonnette
2022 SCC 23
File No.: 39544.
2022: March 24; 2022: May 27.
Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
on appeal from the court of appeal for quebec
Constitutional law — Charter of Rights — Cruel and unusual treatment or punishment — Punishment that is cruel and unusual by nature — Remedy — Section 745.51 of Criminal Code authorizing imposition of consecutive 25‑year parole ineligibility periods in cases involving multiple first degree murders — Whether s. 745.51 infringes s. 12 of Charter , which guarantees right not to be subjected to cruel and unusual treatment or punishment — Appropriate remedy if s. 12 infringed — Constitution Act, 1982, s. 52(1) — Canadian Charter of Rights and Freedoms, s. 12 — Criminal Code, R.S.C. 1985, c. C‑46, s. 745.51 .
On January 29, 2017, 46 people were gathered in the Great Mosque of Québec for evening prayer. B burst in and, armed with a semi‑automatic rifle and a pistol, opened fire on the worshippers, causing the death of 6 people and seriously injuring 5 others. B pleaded guilty to the 12 charges laid against him, including 6 counts of first degree murder. An accused who is convicted of first degree murder will receive a minimum sentence of imprisonment for life and will be eligible for parole only after serving an ineligibility period of 25 years. B therefore received that sentence automatically. The Crown also asked that s. 745.51 of the Criminal Code be applied. This provision authorizes a court to order that the periods without eligibility for parole for each murder conviction be served consecutively rather than concurrently. In the context of first degree murders, the application of this provision allows a court to add up parole ineligibility periods of 25 years for each murder.
B challenged the constitutionality of s. 745.51 . The trial judge held that this provision infringed the right not to be subjected to any cruel and unusual treatment or punishment and the right to liberty and security of the person guaranteed to B by s. 12 and s. 7 of the Charter , respectively, and that the provision could not be saved under s. 1 . To remedy the unconstitutionality of the provision, the trial judge applied the technique of reading in and interpreted s. 745.51 as granting courts a discretion to choose the length of the additional ineligibility period to impose on an offender. He ordered that B serve a total ineligibility period of 40 years before being able to apply for parole. The Court of Appeal allowed B’s appeal and declared s. 745.51 invalid and unconstitutional on the basis that it was contrary to ss. 12 and 7 of the Charter . It noted that the declaration of unconstitutionality was to take effect immediately. It found that reading in was inappropriate, and it therefore struck down the unconstitutional provision. It accordingly ordered that B serve a 25‑year parole ineligibility period on each count before being able to apply for parole and that these periods be served concurrently.
Held: The appeal should be dismissed.
Section 745.51 of the Criminal Code is contrary to s. 12 of the Charter and is not saved under s. 1 . It must be declared to be of no force or effect immediately under s. 52(1) of the Constitution Act, 1982 , and the declaration must strike down the impugned provision retroactively to the date it was enacted. In the case of multiple first degree murders, s. 745.51 authorizes the imposition of sentences of imprisonment that effectively deprive all offenders who receive such sentences of a realistic possibility of being granted parole before they die. Such sentences are degrading in nature and thus incompatible with human dignity, because they deny offenders any possibility of reintegration into society, which presupposes, definitively and irreversibly, that they lack the capacity to reform and re‑enter society. B’s total parole ineligibility period must therefore be 25 years, in accordance with the law as it existed prior to the enactment of s. 745.51.
Section 12 of the Charter guarantees the right not to be subjected to any cruel and unusual treatment or punishment. In essence, the purpose of s. 12 of the Charter is to protect human dignity and ensure respect for the inherent worth of each individual. The protection afforded by s. 12 has two prongs. Section 12 protects, first, against the imposition of a punishment that is so excessive as to be incompatible with human dignity and, second, against the imposition of a punishment that is intrinsically incompatible with human dignity. The first prong of the s. 12 guarantee relates to punishment whose effect is grossly disproportionate to what would have been appropriate. The second prong of the protection afforded by s. 12 concerns a narrow class of punishments that are cruel and unusual by nature; these punishments will always be grossly disproportionate because they are intrinsically incompatible with human dignity.
A punishment is cruel and unusual by nature if the court is convinced that, having regard to its nature and effects, it could never be imposed in a manner consonant with human dignity in the Canadian criminal context. To determine whether a punishment is intrinsically incompatible with human dignity, the court must determine whether the punishment is, by its very nature, degrading or dehumanizing. The effects that the punishment may have on all offenders on whom it is imposed can also inform the court and provide support for its analysis of the nature of the punishment. A punishment that is cruel and unusual by nature must always be excluded from the arsenal of punishments available to the state. It follows that the mere possibility that a punishment that is cruel and unusual by nature may be imposed is enough to infringe s. 12 of the Charter .
Where both prongs of the protection of s. 12 are in issue in the same case, the analysis of the nature of the punishment must precede that of gross disproportionality. If the punishment that might be imposed is cruel and unusual by nature, and hence intrinsically incompatible with human dignity, it will be pointless to consider whether the punishment is grossly disproportionate in a given case, because it will by definition always be grossly disproportionate.
The parole ineligibility period constitutes punishment for the purposes of s. 12 . State action is considered to be punishment for the purposes of s. 12 if it is a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and either it is imposed in furtherance of the purpose and principles of sentencing, or it has a significant impact on an offender’s liberty or security interests. The length of parole ineligibility is part of an offender’s punishment given that it is a consequence of conviction and that it has a significant impact on the offender’s interests in liberty and security of the person. It also furthers the objectives of denunciation and deterrence that underlie a sentence. The imposition of consecutive parole ineligibility periods authorized by s. 745.51 therefore constitutes punishment, the constitutionality of which must be determined under s. 12 of the Charter .
Section 745.51 effectively authorizes the imposition of a sentence of imprisonment for life without a realistic possibility of parole. This punishment is, by its very nature, intrinsically incompatible with human dignity. 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. Although Parliament has latitude to establish sentences whose severity expresses society’s condemnation of the offence committed, it may not prescribe a sentence that deprives every offender on whom it is imposed of any realistic possibility of parole from the outset. To ensure respect for human dignity, Parliament must leave a door open for rehabilitation, even in cases where this objective is of minimal importance. This objective is intimately linked to human dignity in that it conveys the conviction that every individual is capable of repenting and re‑entering society. The intent here is not to have the objective of rehabilitation prevail over all the others, but rather to preserve a certain place for it in a penal system based on respect for the inherent dignity of every individual, including the vilest of criminals. Where the offence of first degree murder is concerned, rehabilitation is already subordinate to the objectives of denunciation and deterrence, as can be seen from the severity of the mandatory minimum sentence for this offence.
The objectives of denunciation and deterrence are not better served by the imposition of excessive sentences. Beyond a certain threshold, these objectives lose all of their functional value, especially when the sentence far exceeds human life expectancy. The imposition of excessive sentences that fulfil no function does nothing more than bring the administration of justice into disrepute and undermine public confidence in the rationality and fairness of the criminal justice system. A punishment that can never be carried out is contrary to the fundamental values of Canadian society.
The effects of a sentence of imprisonment for life without a realistic possibility of parole support the conclusion that it is degrading in nature and thus intrinsically incompatible with human dignity. Offenders who have no realistic possibility of parole are deprived of any incentive to reform, and the psychological consequences flowing from this sentence are in some respects comparable to those experienced by inmates on death row, since only death will end their incarceration. For offenders who are sentenced to imprisonment for life without a realistic possibility of parole, the feeling of leading a monotonous, futile existence in isolation from their loved ones and from the outside world is very hard to tolerate, so much so that some prefer to put an end to their lives rather than die slowly and endure suffering that seems endless to them. Furthermore, in international and comparative law, a sentence that deprives offenders of any possibility of being released is generally considered to be incompatible with human dignity.
The royal prerogative of mercy, which gives Her Majesty the Queen an absolute discretion to grant a remission of sentence to any individual sentenced by a court, cannot save the impugned provision. The royal prerogative of mercy cannot be considered a true sentence review mechanism, because it is exercised only in exceptional circumstances. It is at best a release mechanism based on compassion and on the existence of humanitarian grounds, which means that individuals suffering the normal consequences of a properly imposed sentence are unlikely to obtain such a pardon. The existence of the royal prerogative of mercy therefore creates no realistic possibility of parole for offenders serving a sentence of imprisonment for life for which there is no other review mechanism.
The infringement of s. 12 of the Charter is not justified under s. 1 . In order to justify an infringement of a Charter right, the state is required to show that the impugned law addresses a pressing and substantial objective and that the means chosen to achieve that objective are proportional to it. In this case, since no arguments were made concerning the justification for the impugned provision, the state did not discharge the onus resting on it.
The appropriate remedy in this case is a declaration that s. 745.51 is of no force or effect immediately pursuant to s. 52(1) of the Constitution Act, 1982 , under which any law that is inconsistent with the provisions of the Constitution can be declared to be of no force or effect to the extent of the inconsistency. The technique of reading in is inappropriate in the circumstances. This technique allows a court to extend the reach of a statute so that it includes what was wrongly excluded from it. When a court applies this interpretive technique, it does so on the assumption that had Parliament been aware of the provision’s constitutional defect, it would likely have passed it with the alterations made by the court. In this case, however, the imposition of consecutive 25‑year ineligibility periods is directly related to Parliament’s objective in enacting s. 745.51, as shown by the words of the provision and the parliamentary debate. The words of s. 745.51 are clear as regards the length of the ineligibility periods that a court may make consecutive: for first degree murder, these periods must be 25 years under s. 745 (a) of the Criminal Code . As well, the parliamentary debate clearly shows that Parliament’s intention was to authorize courts to impose consecutive ineligibility periods in blocks of 25 years. In fact, Parliament specifically rejected a proposed amendment that would have given courts a discretion to determine the total length of the parole ineligibility period. It is therefore impossible to conclude that Parliament would likely have passed the impugned provision with the modifications that would result from applying the technique of reading in as the trial judge did.
The declaration of invalidity must have immediate effect given the seriousness of the infringement of the right of every individual not to be subjected to cruel and unusual punishment. The declaration must also strike down the impugned provision retroactively to the date it was enacted, in view of the continuing nature of the infringement of the right guaranteed by s. 12 of the Charter . The applicable law is therefore the law that existed prior to that date. The 25‑year parole ineligibility periods imposed on B for each of the 6 counts of first degree murder must thus be served concurrently. As a result, B may not apply for parole until he has served a total ineligibility period of 25 years, in accordance with s. 745(a). The Parole Board of Canada remains the ultimate arbiter of whether B can be released on parole at the end of the ineligibility period.
Cases Cited
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APPEAL from a judgment of the Quebec Court of Appeal (Doyon, Gagnon and Bélanger JJ.A.), 2020 QCCA 1585, 405 C.C.C. (3d) 524, 68 C.R. (7th) 1, [2020] AZ‑51725265, [2020] J.Q. no 11243 (QL), 2020 CarswellQue 13124 (WL), setting aside in part a decision of Huot J., 2019 QCCS 354, [2019] AZ‑51568159, [2019] Q.J. No. 758 (QL), 2019 CarswellQue 6617 (WL). Appeal dismissed.
François Godin and Olivier T. Raymond, for the appellant Her Majesty The Queen.
Jean‑François Paré, Sylvain Leboeuf, Julie Dassylva and Stéphanie Quirion‑Cantin, for the appellant the Attorney General of Quebec.
Charles‑Olivier Gosselin and Nicolas Déry, for the respondent.
Ian Demers, for the intervener the Attorney General of Canada.
Milan Rupic and Katie Doherty, for the intervener the Attorney General of Ontario.
Written submissions only by Glenn Hubbard, for the intervener the Attorney General of Nova Scotia.
Micah B. Rankin, for the intervener the Attorney General of British Columbia.
Written submissions only by Christine Rideout, c.r., for the intervener the Attorney General of Alberta.
Juliette Vani, for the intervener Association des avocats de la défense de Montréal‑Laval‑Longueuil.
Erin Dann and Paul Socka, for the intervener the Queen’s Prison Law Clinic.
Timothy S. B. Danson and Marjan Delavar, for the interveners the Toronto Police Association, the Canadian Police Association, Karen Fraser, Jennifer Sweet, Nicole Sweet, Kim Sweet, John Sweet, J. Robert Sweet, Charles Sweet, Patricia Corcoran, Ann Parker, Ted Baylis, Sharon Baylis, Cory Baylis, Michael Leone, Doug French, Donna French and Deborah Mahaffy.
Stéphane Beaulac, for the intervener the Observatory on National Security Measures.
Eric Purtzki and Alix Tolliday, for the intervener the Independent Criminal Defence Advocacy Society.
Simon Borys, for the intervener the Canadian Prison Law Association.
Sameha Omer and Daniel Kuhlen, for the intervener the National Council of Canadian Muslims.
Stephanie DiGiuseppe and Harshi Mann, for the intervener the Canadian Civil Liberties Association.
Danielle Robitaille and Carly Peddle, for the intervener the British Columbia Civil Liberties Association.
Mathieu St‑Germain and Jason Fraser, for the intervener the Canadian Association of Chiefs of Police.
TABLE OF CONTENTS
Paragraph
I. Introduction
1
II. Background and Judicial History
10
A. Facts
10
B. Quebec Superior Court, 2019 QCCS 354 (Huot J.)
13
C. Quebec Court of Appeal, 2020 QCCA 1585, 405 C.C.C. (3d) 524 (Doyon, Gagnon and Bélanger JJ.A.)
20
III. Issues
25
IV. Analysis
27
A. History of Section 745.51 Cr. C.
27
B. The Parole System in Canada
37
C. Sentencing Objectives in Canadian Law
45
D. The Right Under Section 12 of the Charter Not to Be Subjected to Cruel and Unusual Punishment
54
(1) The Parole Ineligibility Period Constitutes Punishment
56
(2) The Two Prongs of the Right Not to Be Subjected to Cruel and Unusual Punishment
59
E. Does Section 745.51 Cr. C. Infringe Section 12 of the Charter?
71
(1) Scope of Section 745.51 Cr. C.
74
(2) Imprisonment for Life Without a Realistic Possibility of Parole Constitutes Punishment That Is Cruel and Unusual by Nature
81
(a) Examination of the Nature of a Sentence of Imprisonment for Life Without a Realistic Possibility of Parole
82
(b) Effects of a Sentence of Imprisonment for Life Without a Realistic Possibility of Parole
96
(c) Dignity and Imprisonment for Life Without the Possibility of Parole: International and Comparative Law Perspectives
98
(d) Does the Judicial Discretion to Impose Consecutive Parole Ineligibility Periods Affect the Constitutionality of the Impugned Provision?
109
(e) Can the Royal Prerogative of Mercy Save the Impugned Provision?
112
F. Is the Infringement of Section 12 of the Charter Justified Under Section 1 of the Charter?
120
G. Appropriate Remedy
122
V. Conclusion
139
English version of the judgment of the Court delivered by
The Chief Justice —
I. Introduction
[1] The crimes committed by the respondent in the Great Mosque of Québec on the fateful day of January 29, 2017 were of unspeakable horror and left deep and agonizing scars in the heart of the Muslim community and of Canadian society as a whole. We cannot help but feel sympathy for the victims and their loved ones for their irreparable losses and their indescribable pain.
[2] It is in the context of those crimes that this Court must rule on the constitutional limits on the state’s power to punish offenders. The appeal requires us to weigh fundamental values of our society enshrined in the Canadian Charter of Rights and Freedoms and to reaffirm our commitment to upholding the rights it guarantees to every individual, including the vilest of criminals.
[3] More specifically, the question before the Court is whether s. 745.51 of the Criminal Code , R.S.C. 1985, c. C‑46 (“Cr. C.”), which was introduced in 2011 by the Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act, S.C. 2011, c. 5, s. 5, is contrary to ss. 7 and 12 of the Charter . The impugned provision authorizes the imposition of consecutive parole ineligibility periods in cases involving multiple murders. In the context of first degree murders, the application of this provision allows a court to impose a sentence of imprisonment without eligibility for parole for a period of 50, 75, 100 or even 150 years. In practice, the exercise of the court’s discretion will inevitably result in imprisonment for life without a realistic possibility of parole for every offender concerned who has been convicted of multiple first degree murders. Such a criminal sentence is one whose severity is without precedent in this country’s history since the abolition of the death penalty and corporal punishment in the 1970s.
[4] For the reasons that follow, I conclude that s. 745.51 Cr. C. is contrary to s. 12 of the Charter and is not saved under s. 1 . In light of this conclusion, it will not be necessary to consider the alleged infringement of s. 7 of the Charter .
[5] Section 12 of the Charter guarantees the right not to be subjected to cruel and unusual punishment or treatment. In essence, its purpose is to protect human dignity and ensure respect for the inherent worth of each individual. This Court recently affirmed, albeit in a different context, that human dignity transcends the interests of the individual and concerns society at large (Sherman Estate v. Donovan, 2021 SCC 25, at para. 33). In this sense, the significance of this appeal extends well beyond its particular facts.
[6] Section 12 of the Charter prohibits the state from imposing a punishment that is grossly disproportionate in relation to the situation of a particular offender and from having recourse to punishments that, by their very nature, are intrinsically incompatible with human dignity.
[7] The provision challenged in this case allows the imposition of a sentence that falls into this latter category of punishments that are cruel and unusual by nature. All offenders subjected to stacked 25‑year ineligibility periods under s. 745.51 Cr. C. are doomed to be incarcerated for the rest of their lives without a realistic possibility of being granted parole. The impugned provision, taken to its extreme, authorizes a court to order an offender to serve an ineligibility period that exceeds the life expectancy of any human being, a sentence so absurd that it would bring the administration of justice into disrepute.
[8] A sentence of imprisonment for life without a realistic possibility of parole is intrinsically incompatible with human dignity. Such a sentence is degrading insofar as it negates, in advance and irreversibly, the penological objective of rehabilitation. This objective is intimately linked to human dignity in that it conveys the conviction that every individual is capable of repenting and re‑entering society. This conclusion that a sentence of imprisonment for life without a realistic possibility of parole is incompatible with human dignity is not only reinforced by the effects that such a sentence may have on all offenders on whom it is imposed, but also finds support in international and comparative law.
[9] To ensure respect for the inherent dignity of every individual, s. 12 of the Charter requires that Parliament leave a door open for rehabilitation, even in cases where this objective is of secondary importance. In practical terms, this means that every inmate must have a realistic possibility of applying for parole, at the very least earlier than the expiration of an ineligibility period of 50 years, which is the minimum ineligibility period resulting from the exercise of judicial discretion under the impugned provision in cases involving first degree murders.
II. Background and Judicial History
A. Facts
[10] Given that these reasons concern the constitutionality of s. 745.51 Cr. C. and that the resulting principles will apply to many multiple murder cases, I do not think it would be appropriate to refer at length to the horrible circumstances of this case, which were summarized well by the trial judge and widely publicized in the media. However, out of respect for the victims of this tragedy, it must be said that hatred, racism, ignorance and Islamophobia were behind the appalling acts committed by the respondent on that fateful day of January 29, 2017, when he sowed terror and death in the Great Mosque of Québec.
[11] Forty‑six people, including four children, had gathered in that place of worship for evening prayer. The respondent burst in and, armed with a semi‑automatic rifle and a pistol, opened fire on the worshippers. In less than two minutes, he caused the death of six innocent people, Khaled Belkacemi, Ibrahima and Mamadou Tanou Barry, Abdelkrim Hassane, Azzeddine Soufiane and Aboubaker Thabti, seriously injured five others and left the survivors of the killings, and the victims’ loved ones, with deep and permanent psychological scars.
[12] On March 26, 2018, the respondent pleaded guilty to the 12 charges laid against him, including 6 counts of first degree murder, an indictable offence provided for in ss. 231(2) and 235 Cr. C. As a consequence, he was automatically sentenced to imprisonment for life. The Crown then asked the court to apply s. 745.51 Cr. C. and sentence the respondent to 6 consecutive parole ineligibility periods of 25 years, for a total of 150 years. The trial judge thus had to determine the length of the parole ineligibility period to be imposed on the respondent, and also had to rule on the constitutionality of s. 745.51 Cr. C.
B. Quebec Superior Court, 2019 QCCS 354 (Huot J.)
[13] In particularly detailed reasons, the trial judge held that s. 745.51 Cr. C. infringed ss. 12 and 7 of the Charter and that it could not be saved under s. 1 . As a remedy for the unconstitutionality of the provision, he applied the technique of readin