The decision “unusual” for a judge in Quebec to derogate from the provisions of the criminal Code condemning Alexandre Bissonnette to a sentence of life imprisonment without the possibility of parole for 40 years sheds light on the ongoing debate on the consecutive sentences in Canada, according to legal experts.
To impose a period of ineligibility of 40 years, the judge has not complied with the requirements of section 745.51 of the criminal Code. It allows the cumulation of ineligibility periods of 25 years in the case of multiple killings, so that the judge of record may impose a 25, 50 or 75 years before a person can apply to be released conditionally – but nothing in between these numbers.
The justice François Huot of the superior Court, said that the article, as written, violates the canadian Charter of rights and freedoms, including the right to life and the right for a citizen not to be subjected to treatments and punishments cruel and unusual.
The judge, however, did not deem it necessary to declare the section invalid, but as the interpreter and rewrote it so as to give a true discretionary power to the magistrate who attempts to determine the just and appropriate sentence for each case.
Bissonnette, 29, pleaded guilty last march to six counts of first-degree murder and six attempted murder after he opened fire in the mosque of the islamic cultural Centre of Quebec during the prayer of the evening of January 29, 2017.
Kent Roach, professor of law at the University of Toronto, has called the decision of the judge Huot of”innovative”.
“Of disputes under the Charter relating to provisions of 2011 had already been dismissed on the ground that the judge was not obliged to increase the parole ineligibility for multiple murders,” he pointed out by e-mail.
“(The decision) could be the subject of an appeal by the Crown, which demanded a lot more than 40 years – and the defence, who could argue that if the judge considers that the provision violates the Charter, he would not have had to impose that 25 years of parole ineligibility,” added Mr. Roach.
All the same, Rénald Beaudry, a criminal lawyer of Quebec present at the pronouncement of the verdict against Bissonnette, considers that it would not be easy to win the case on appeal.
He stressed that the decision extensively detailed by the judge Huot includes a broad overview of the global jurisprudence on the issue of consecutive sentences, the underlying philosophy of the fundamental principles of canadian law and a summary of the debate in the House of commons on the issue.
“It is really “‘backé,” to use the expression,” he dropped.
On Friday, lawyers for the Crown and defence have stated that they would study the decision before deciding to appeal or not to appeal the sentence. A spokesman for the ministry of Justice of Quebec has also indicated that its lawyers were studying the possibility of an appeal.
A decision framing in a broader discussion about the law
Lisa Silver, a professor of law at the University of Calgary, stated that this decision reflects the ongoing debate in Canada around the law, which allows judges to “earn” sentences of life imprisonment for several killings instead that defendants the are serving simultaneously.
“(The decision) seems unusual, but it is also very consistent with what some judges have said, not just about this article, but also about the determination of the sentence and of the broader discussion on these articles in the criminal Code,” she pointed out.
Recent decisions of sentencing high-profile outlets in Canada have reflected different approaches to court on multiple sentences.
To this day, the prison sentence, the longest in Canada is 75 years without parole, which was imposed to at least five convicts who had committed three murders, including Justin Bourque, who killed three RCMP officers in a shooting in New Brunswick in 2014.
However, other judges have rejected applications for consecutive sentences, including the judge in Toronto sentenced Friday Bruce McArthur to life in prison without the possibility of parole before 25 years for the murder of eight men linked to the gay community of Toronto.
Perceptions of inequity
Ms. Silver stated that the disparity between the sentences can be problematic, as it leads to comparisons, such as the perception that the murder of a homosexual or a muslim does not have the same scope as that of an agent of the RCMP.
But, she added, people should understand that a sentence is not to assign a numerical value to a person’s life.
“We have to remember that the determination of the penalty is specific to a case and takes into account a number of factors, including the circumstances of the crime, its seriousness, its impact on society, in most of the situation and background of the offender”, she stressed.
Ms. Silver has recognized that the conviction of Bissonnette would probably be the subject of an appeal, and it considers that it is a good thing.
She said that the law on consecutive sentences should be reviewed in order to better guide judges and prevent the harm caused by a perception of inconsistency in sentencing.