In R v Bissonnette, 2022 SCC 23, the Supreme Court unanimously finds unconstitutional the provision of the Criminal Code that, in effect, allowed persons found guilty of multiple murders to be sentenced to life imprisonment without parole. The Court holds that the denial of a chance at release to all those on whom such sentences are imposed makes their imposition cruel and unusual, regardless of the nature of the crimes leading to it, and so contrary to section 12 of the Canadian Charter of Rights and Freedoms. In my view, the Supreme Court is wrong.
The case concerns a man who, executing a premeditated plan, entered a mosque “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” [11] and injured others. The prosecution sought to have him sentenced to serve the mandatory periods of parole ineligibility for each of the murders consecutively, amounting to a total of 150 years. But the Superior Court and the Court of Appeal both found that doing so would be unconstitutional. The former re-wrote the law to impose a 40-years ineligibility period. The latter simply struck it down and imposed the default sentence for a first-degree murder, life imprisonment and parole ineligibility for 25 years.
Writing for the Court, the Chief Justice draws on its recent decisions in Quebec (Attorney General) v 9147‑0732 Québec inc, 2020 SCC 32 and Ward v Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43, to hold that section 12 of the Charter protects human dignity, which “evokes the idea that every person has intrinsic worth and is therefore entitled to respect”. [59] A punishment may contravene section 12 in two distinct ways. The more familiar one, which is involved in cases on mandatory minimum sentences that make up the bulk of section 12 jurisprudence, involves punishment that is grossly disproportionate to the particular offence for which it is imposed. To decide whether a given punishment is contrary to section 12 on this basis, the court must consider the offence. But there is a separate and logically prior category of section 12 breaches. It concerns punishments that are “intrinsically incompatible with human dignity”. [60] Here, the question of disproportionality does not arise at all; the punishment is simply not one that may imposed, no matter the offence. This category is “narrow” [64] but its contents “will necessarily evolve” along with “society’s standards of decency”. [65]
A punishment that belongs to this category “could never be imposed in a manner consonant with human dignity in the Canadian criminal context” because it “is, by its very nature, degrading or dehumanizing”, taking into account its “effects on all offenders on whom it is imposed”. [67] The Chief Justice adds that “the courts must be cautious and deferential” [70] before concluding that a punishment chosen by Parliament is of such a nature. However, once they reach this conclusion, because the imposition of such punishment is categorically forbidden, it can no more be discretionary than automatic, and it will not be mitigated by the existence of a prerogative power of mercy.
With this framework in mind, the Chief Justice considers whether effective life imprisonment without parole, which is what a parole ineligibility period of 50, let alone 75 or more years amounts to, falls into the category of punishments that “degrading or dehumanizing” by nature. In his view it is. There seem to be two somewhat distinct though no doubt mutually supportive reasons why this is so. On the one hand, such a punishment denies the important of rehabilitation as a part of the sentencing process. On the other, it is especially harsh on those subject to it.
On the issue of rehabilitation, the Chief Justice argues that life imprisonment without parole is incompatible with human dignity because “it presupposes at the time of its imposition, in a definitive and irreversible way, that the offender is beyond redemption and lacks the moral autonomy needed for rehabilitation”. [81] Rehabilitation is inextricably linked to human dignity, and “negat[ing] the objective of rehabilitation from the time of sentencing” “shakes the very foundations of Canadian criminal law”. [84] Even if rehabilitation seems unlikely, “[o]ffenders who are by chance able to rehabilitate themselves must have access to a sentence review mechanism after having served a period of incarceration that is sufficiently long to denounce the gravity of their offence”. [85] Rehabilitation can take the back seat to denunciation and deterrence, but not left by the wayside, as it were. The Chief Justice adds that “the objectives of denunciation and deterrence … lose all of their functional value” after a point, “especially when the sentence far exceeds human life expectancy”, which “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”. [94]
As for the harshness of life sentences without parole, the Chief Justice quotes descriptions of this sort of punishment as tantamount to a death sentence and writes that “[o]nce behind prison walls, the offender is doomed to remain there until death regardless of any efforts at rehabilitation, despite the devastating effects that this causes”, [82] such as “the feeling of leading a monotonous, futile existence in isolation from their loved ones and from the outside world”, [97] which can even lead some to suicide. But the Chief Justice is clear that this does not foreclose each and every sentence that would have the effect of “dooming” the offender to remain in prison until death: “an elderly offender who is convicted of first degree murder will … have little or no hope of getting out of prison”. [86] This is nonetheless acceptable “since it is within the purview of Parliament to sanction the most heinous crime with a sentence that sufficiently denounces the gravity of the offence”. [86] What matters is that the existing 25-year parole ineligibility period does not “depriv[e] every offender of any possibility of parole from the outset”. [86]
The Chief Justice then considers comparative materials, reviewing the laws and some case law from a number of countries, as well as some international jurisdictions. I will not say much about this to avoid overburdening this post, though the Chief Justice’s comments about the way in which such materials can and cannot be used, which echo those of the majority in Québec Inc, are worth considering. I will note, however, that the most pertinent comparative source of them all, the sentencing judgment in the New Zealand case of R v Tarrant, [2020] NZHC 2192, about which I have written here, is simply ignored. This isn’t entirely the Chief Justice’s fault, since, so far as I can tell, the factums for the prosecution and the Attorneys-General of Canada, Québec, and Ontario also fail to mention it. Yet I find the omission striking, and culpable on the part of both the lawyers and the Supreme Court.
Finally, having found a breach of section 12 of the Charter, and in the absence of any attempt by the government to justify it, the Chief Justice considers the remedy to grant. I will not address this issue here, but stay tuned ― there will be more on it on the blog in the days or weeks ahead.
The Chief Justice’s opinion does not persuade me. For one thing, it sits uneasily with precedent. The Chief Justice duly quotes his predecessor’s judgment for the unanimous Supreme Court in R v Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 SCR 180, to the effect that sentencing principles, “do not have constitutional status. Parliament is entitled to modify and abrogate them as it sees fit, subject only to s 12 of the Charter“. [71] This includes both the principle of proportionality and “other sentencing principles and objectives” [Bissonnette, 53] That would seem to include rehabilitation, which the Chief Justice enumerated in the discussion sentencing principles that precedes this passage. And yet it follows from the rest of his judgment that rehabilitation is in fact constitutionally protected. It has a special relationship with human dignity, and cannot be excluded, contrary to the suggestion in Safarzadeh-Markhali, which, however, is not overruled or indeed even discussed at this point in the Chief Justice’s reasons. This is a muddle, which is not helped by the Chief Justice’s disclaimer of any “intent … to have the objective of rehabilitation prevail over all the others”. [88] If rehabilitation, alone among the sentencing objectives and principles ― even proportionality ― is constitutionally entrenched, then it is indeed put on a different plane.
The Chief Justice might think that his disclaimer holds up because, as we have seen, he insists that rehabilitation only needs to be available to those offenders who have “served a period of incarceration that is sufficiently long to denounce the gravity of their offence”. But he does not consider whether ― and, despite his professed commitment to deference, does not consider that Parliament may have concluded that ― in some cases, “no minimum period of imprisonment would be sufficient to satisfy the legitimate need to hold [the offenders] to account for the harm [they] have done to the community [or] denounce [their] crimes”. [Tarrant, 179] If that is so, then the same reasons that prevent rehabilitation from, say, abridging the sentences of elderly murders ought to prevent it from standing in the way of life imprisonment without parole. But it does so stand, because of its alleged special connection with dignity.
Note that dignity itself is a judicial add-on to section 12 of the Charter; it’s no apparent part of the provision. As Maxime St-Hilaire and I pointed out in our comment on the first instance judgment in this case
the Supreme Court struggled for the better part of a decade to integrate human dignity into its equality jurisprudence, and gave up ― recognizing in R v Kapp, 2008 SCC 41 [2008] 2 SCR 483 that “human dignity is an abstract and subjective notion”, “confusing and difficult to apply”. [22]
Something, I suppose, has changed, though the Chief Justice no more bothers to tell us why Kapp was wrong than he does explaining his apparent departure from Safarzadeh-Markhali. And note, moreover, that the alleged violation of human dignity that results from life imprisonment without parole is also the fruit of a judicial say-so. The Chief Justice asserts that such a sentence amounts to denial of an offender’s capacity to rehabilitate him- or herself. But it is at least just as ― in my view more ― plausible to see it as Justice Mander did in Tarrant: as expressing the view that nothing less will adequately denounce the crime. The offender may repent it; he or she may become a saint; but still denunciation will demand nothing less than continuing imprisonment. This is not am implausible view ― again, a thoughtful judgment of the New Zealand High Court has taken it ― and the Chief Justice never confronts, let alone refutes, it.
Even if you disagree with me on this, it remains the case that the Chief Justice’s reasons suffer from a serious logical flaw on their own dignitarian terms. Again, he accepts that some, perhaps a not inconsiderable number of, people will be imprisoned without any realistic prospect of being able to apply for parole, as a consequence of their age at sentencing and the duration of a fit sentence (or indeed a mandatory ― but constitutional ― one). He claims that this acceptable because such a sentence “does not exceed constitutional limits by depriving every offender of any possibility of parole from the outset”. [86; emphasis added] But that’s not how human dignity works. Dignity, if it means anything at all, is personal. Elsewhere, the Chief Justice shows he understands this, for instance when he writes that “rehabilitation is intimately linked to human dignity in that it reflects the conviction that all individuals carry within themselves the capacity to reform and re-enter society”. [83; emphasis added] In other words, because we are separate and distinct individuals, your dignity is not upheld if I’m being treated in accordance with dignitarian requirements. Yet that is exactly what the Chief Justice’s approach presupposes. Because some people get a chance at parole, those who don’t are treated with dignity. It’s a dodge, and a very clumsy one.
Finally, although I do not think that the court’s role is “to weigh fundamental values in our society”, [2] I agree that the courts do not operate in a moral vacuum. Yet they should not seek to fill this vacuum with what Professor St-Hilaire, in our comment on the Court of Appeal’s decision in this case, and I have described as “abstract, and ultimately soulless, humanitarianism”. Sadly, this is exactly what the Supreme Court is doing here. It is striking that almost nothing about the crime that led to this case, beyond describing it as an “unspeakable horror” [1] behind which were “hatred, racism, ignorance and Islamophobia”. [10] Perhaps I being unfair here, but to me this sounds like empty slogans or, to repeat, soulless humanitarianism. By contrast, the Chief Justice’s description of the suffering of those condemned to life imprisonment without parole, which I partly quote above, is specific and vivid. I do not suppose that the Chief Justice is really more moved by this suffering than by that of the victims of the offender here. But, in his otherwise commendable determination to reject vengeance and uphold the rights of the justly reviled, he writes as if he were.
To be clear, rejecting pure vengeance as the basis of sentencing policy is right. So is the empowering the courts to check Parliament’s excesses in this realm. The politicians calling for the section 12 of the Charter to be overridden at the next opportunity are wrong, because they are opening the door to abuse and casual disregard of the rights it protects. But that does not mean that the Supreme Court is necessarily right when it protects these rights, and it isn’t right here. Bissonnette is legally muddled, logically flawed, and morally blinkered. It is not a dignified judicial performance.
Double Aspect 
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