Double Aspect

I have blogged about the issue of imprisonment to life without parole, in name or in effect, for some years — namely, since the Superior Court of Quebec held that doing so was unconstitutional in R v Bissonnette, 2019 QCCS 354. Maxime St-Hilaire wrote about that slightly manic judgment here, and about the Quebec Court of Appeal’s take on the issue in Bissonnette v R, 2020 QCCA 1585, here. Finally, I wrote about the Supreme Court’s undiginified performance in this case,  R v Bissonnette, 2022 SCC 23, here. Meanwhile, I sadly also had occasion to write here about a judgment of New Zealand’s High Court in a very similar case, R v Tarrant, [2020] NZHC 2192. The bottom line, so far as positive law is concerned, is that in Canada a sentence of effective life imprisonment without parole is always unconstitutional. In New Zealand, it is — in an appropriate case — not deemed contrary to the Bill of Rights Act.

Another jurisdiction that had to consider similar questions about the permissibility of whole-life sentences as a matter of human rights is the European Court of Human Rights. In a nutshell, its approach is similar to the Canadian one; indeed, the Supreme Court of Canada refers to a number of Strasbourg decisions in Bissonnette. Both courts emphasize the significance of rehabilition and consider that depriving an offender, even one guilty of, say, mass murder fuelled by religious hatred (as in both Bissonnette and Tarrant) of a chance at recovering a degree of freedom is itself a form of serious mistreatment.

As I have argued in my posts here, this is not persuasive. As it happens, Guy Baldwin, a colleague from the University of Manchester, shared my misgivings about the reasoning in the cases that have condemned life without parole sentences, so we have joined forces to write about it. The result, “Can States Throw Away the Key? Critiquing Human Rights Law Approaches to Whole Life Sentences”, has just been accepted by the European Human Right Law Review. Here is the abstract:

In this article, we examine the jurisprudence on the compatibility of irreducible life sentences with human rights under three rights-protecting instruments: the European Convention on Human Rights, the Canadian Charter of Rights and Freedoms, and the New Zealand Bill of Rights Act. While the European Court of Human Rights and the Supreme Court of Canada take a similar approach, holding that irreducible life sentences are impermissible as “inhuman or degrading” or “cruel and unusual punishment”, New Zealand ‘s High Court, by contrast, found that such a sentence was not “cruel, degrading, or disproportionately severe”. We critique the European and Canadian case law, favouring the New Zealand approach, by reference to multiple aspects of the courts’ reasoning in these cases: the significance of rehabilitation of the offender (as opposed to other possible penological grounds for imprisonment); the meaning of atonement; the effects on the offender; the place of the victim in the judicial reasoning; the interests o f the community; and issues with the concepts of human dignity and the living instrument in human rights law. Without making an affirmative case for irreducible life sentences, we argue that such a punishment is not inherently contrary to human rights.

The article is due to be published later this year, but you can already read it on SSRN. Many thanks to all those who read the piece in draft, and especially to the organizers and attendees of workshops at the Max Planck Institute for the Study of Crime, Security and Law and at the University of Manchester where we presented the paper.

Lastly, a quick note on what follows from this. Bissonnette is one of the growing number of judicial decisions that have provoked calls for legislation to override it using section 33 of the Canadian Charter of Rights and Freedoms. I’m not sure whether this was in fact stated in so many words, but my impression, at least, was that such a statute was likely planned to be the federal law (as opposed to provincial legislation) to ever resort to the “notwithstanding clause” if the Conservatives had won the last election. You can see why: anyone who would oppose this would instantly be smeared as a supporter of mass murderers.

So, being on the record, not only on the blog but now also in an academic journal, as thinking that the Supreme Court did mess up this issue, both doctrinally and philosophically, I want to emphasize that, nevertheless, overturning its decision by involving section 33 would be entirely wrong. Whatever the rights and wrongs of individual decisions, in the long run, our rights are far better protected by the courts than by legislatures, which largely or entirely disregard rights when they resort to the notwtithstanding clause, despite what the clause’s apologists say in disregard of all empirical evidence. The rule against using the notwithstanding clause can only function as a rule; once politicians start making exceptions to it, they will not stop, as we are now seeing clearly. And the point of rules is that they must apply even when we don’t like it. Dura lex and all that.

If, however, the Supreme Court is ever given the opportunity to revisit Bissonnette, I will certainly be hoping they take it. For the many reasons Dr Baldwin and I explain, they got that one wrong, and the sooner they can correct themselves, the better.