Throwing Away the Key

Thoughts on life imprisonment without parole, in New Zealand and in Canada

Last week, Justice Mander of New Zealand’s High Court sentenced the Christchurch mosque shooter to life imprisonment without the possibility of parole for the murder of 51 people, attempted murder of 40 others, and terrorism. This punishment is provided for by section 103(2A) of New Zealand’s Sentencing Act 2002.

Justice Mander’s sentencing remarks in R v Tarrant, [2020] NZHC 2192hold some lessons for Canadians, as the Québec Court of Appeal is considering the appeals of both the Crown and the accused from the sentence the Superior Court imposed on the Québec mosque shooter in R v Bissonnette, 2019 QCCS 354. In that decision, about which Maxime St-Hilaire and I wrote here, Justice Huot found the possibility of stacking parole ineligibility periods for multiple murders in a way that amounted to sentencing those who commit them to life imprisonment without parole to a cruel and unusual punishment and a deprivation of liberty contrary to principles of fundamental justice, contrary to sections 7 and 12 of the Canadian Charter of Rights and Freedoms.

Although stating that “the needs of denunciation, of setting an example, and of incapacitation” are especially “pressing” [766; translation mine], Justice Huot went on to find that life imprisonment without a realistic prospect of parole was contrary to Canadian values. Canada, he wrote, “is not a land where the most undesirable elements of the community are shut in a gaol and their very existence forgotten, the key of their liberty having been thrown into the river of a vast collective indifference.” [845; tanslation Professor St-Hilaire’s and mine] For him, the possibility of rehabilitation, even for the worst offenders, means that it is “sophistry to assert that [multiple murderers] should reasonably expect, in a free, civilized, and democratic society, to spend the rest of their days behind bars”. [975] Justice Mander’s cogent remarks help show that this was wrong.

Justice Mander, it worth noting, is by no means insensitive to considerations of humanity and anti-populism that apparently influenced Justice Huot so much. He considers the prospects of rehabilitation, and notes that “[t]he sentence [he] impose[s] must represent a civilised reaction based not on emotion but justice and deliberation”. [177] But these concerns are not dispositive in a case such as this.

Addressing Mr. Tarrant, Justice Mander explains that his

prime objectives are threefold. First and foremost, to condemn your crimes and to denounce your actions. Second, to hold you accountable for the terrible harm you have caused — in plain terms, to attempt to impose some commensurate punishment … on behalf of the whole community, which in particular includes the victims of your crimes and their families, all of whom are a part of New Zealand’s multicultural society. Third … to protect the community from a person capable of committing cold-blooded murder on such a scale and who presents such a grave risk to public safety. [124]

Justice Mander notes that section 9 of New Zealand bill of Rights Act 1990 prohibits the imposition of “disproportionately severe … punishment” (judicially interpreted as calling for a test of gross disproportionality ― similar to the one applied to test the constitutionality of legislation under section 12 of the Canadian Charter of Rights and Freedoms). He notes, also, that “[t]here is European jurisprudence that indicates the imposition of a whole-of-life sentence in the absence of any effective review mechanism is incompatible with
international human rights instruments”. [139] Nevertheless, he finds that nothing short of a life sentence without parole would be proportionate to the crimes here.

Let me quote just one paragraph about the facts (this one drawn from Justice Mander’s discussion of the aggravating circumstances). It is horrible, and there is, alas, so much more horror in this case ― as there was in the Bissonnette one:

It is self-evident that your offending constituted extreme violence. It was brutal and beyond callous — your actions were inhuman. You deliberately killed a threeyear-old infant by shooting him in the head as he clung to the leg of his father. The terror you inflicted in the last few minutes of that small child’s life is but one instance of the pitiless cruelty that you exhibited throughout. There are countless more examples. You showed no mercy. [151]

In Justice Mander’s view,

no minimum period of imprisonment would be sufficient to satisfy the legitimate need to hold you to account for the harm you have done to the community. Nor [would] minimum term of imprisonment would be sufficient to denounce your crimes. [179]

Indeed, in a comment particularly relevant to the comparison the sentence he imposes with Justice Huot’s preoccupation with not letting people spend their lives behind bars, Justice Mander observes that, were he “to impose a minimum period of imprisonment in an endeavour to meet the purposes that I am required to achieve in sentencing you for murdering 51 people, it could not be less than [Mr. Tarrant’s] natural life”. [180] Ultimately, he does

not consider, however long the length of your incarceration during your lifetime, that it could, even in a modest way, atone for what you have done. Ordinarily such an approach would be a poor guarantee of just and proportionate punishment, but I consider yours is one of those exceedingly rare cases which is different. [184]

I think that Justice Mander is right about all of this. Justice Huot, who would no doubt hurl accusations of “sophistry”, populism, and other assorted sins, would not only be wrong but, at the risk of sounding pompous, morally obtuse. Collective indifference and forgetfulness are not just, or even primarily, concerns in relation to those who commit terrible crimes. It would be no less ― and indeed much more ― wrong to be indifferent to the crimes themselves. And it will still be wrong decades from now.

As I recently wrote in discussing an Alberta judgment on the application of section 12 of the Charter, I think that the gross disproportionality test is a sensible construction of its “cruel and unusual punishment” prong, so far as individuals (rather than legal persons) are concerned. Well, I don’t think there is anything grossly disproportional, or indeed disproportional in any way, in denying the possibility of parole to a man who presents himself to a place of worship with the sole purpose of killing as many people as possible, and proceeds to do just that. On the contrary, I think justice may well demand no less. Perhaps there are policy considerations that would explain why a legislature might not put that option on the table. But at the level of principle, I think the New Zealand approach of making the life without parole sentence available in cases where the objectives of punishment cannot be met by a lesser one is right. The Canadian approach of making the parole non-eligibility terms of multiple murderers run consecutively amounts to the same thing, but less transparently, so I think the New Zealand one is preferable.

Granted, the sentencing court should consider repentance and the prospect, even if unlikely on balance, of rehabilitation. There seems to be a difference on this point between the Québec and Christchurch cases, and if this were the reason for Justice Huot’s decision not to impose, in effect, a life sentence without parole, it might have been defensible. (I’m not sure it would have been. Luckily I’m not a judge in charge of sentencing mass murderers, so I get to punt on this question.) But that’s not the main consideration that motivated Justice Huot. On the contrary, he felt strongly enough the need to denounce and punish Mr. Bissonnette that he rewrote (which is a nice way of saying “broke”) the law to impose a 40-year parole ineligibility period, instead of a 25-year one. That suggests that, ultimately, he thought that, as in the Christchurch case, punishment and denunciation dominate. And, if so, a sentence without parole is warranted.

I fully agree with Justices Huot and Mander that the measure of just punishment is not its ability to grab the headlines, and that a civilized justice system must move away from the “an-eye-for-an-eye” instinct. Cases such as these remind us, in any event, the futility of such fantasies. Even if we were in the business of killing murders, we couldn’t kill them six, or fifty-one, times over.

But Justice Mander’s sentencing remarks are a reminder that one need not be vengeful, or to simple-mindedly parrot the tough-on-crime line, to find, in truly shocking and exceptional cases, that the most severe punishment is warranted. Protecting the lives of the citizens is the state’s first responsibility on any plausible view of its role. Providing justice, in the form punishment, in response to those who take their fellow human beings’ lives is the second. In the face of contempt for human life and indifference to, if not actual pleasure in, human suffering, retribution is called for. In extreme cases, locking such people up and throwing away the key is only fair. I do hope that the Québec Court of Appeal, and the Supreme Court if comes to that, take note.

That’s Right

A couple of blog posts published over the holidays seem to confirm that two Canadian appellate decisions about which I posted recently are right―not necessarily as a matter of law, about which the posts don’t tell us much―but at least as a matter of policy. I thought they’re worth pointing out.


First, at Concurring Opinions, Gaia Bernstein writes about the unintended consequences of the prohibitions on anonymous sperm or egg donations, which the BC Court of Appeal, in a decision on which I commented hererecently refused to elevate to the rank of a constitutional requirement. According to Prof. Bernstein, her research shows that

three jurisdictions, which prohibited donor gamete anonymity[,] Sweden, Victoria (an Australian state) and the United Kingdom …  share dire shortages in donor gametes accompanied by long wait-lists. The study concluded that although prohibitions on anonymity were not the sole cause of the shortages, these prohibitions definitely played a role in their creation.

Her more recent research looks at “the potential effect of the adoption of prohibitions on anonymity in the United States on the practice of surrogacy.” Because of the peculiarities of the legal regime surrounding surrogacy in the United States, surrogacy is more dependent on donor eggs there than in many other countries. So “[t]he adoption of prohibitions on anonymity in the United States could destabilize the practice of surrogacy in a way that did not occur in other countries that adopted these prohibitions.” (Prof. Bernstein explains why―there’s no point in my reproducing her argument here.)

Now I don’t know whether the legal regime for surrogacy is in Canada, or rather in the various Canadian provinces (I seem to remember from discussions with friends who do know that there might be differences, especially between common law provinces and Québec) is like that of the United States. But what I can tell is that it is another variable that ought to be taken into account when crafting the rules on donor anonymity, and that the process of judicial review, during which such “side” issues are often, perhaps inevitably, obscured. So it is for the better that the issue of anonymity is left to the legislatures. As I wrote in my earlier post, I also think that the law does not require the contrary conclusion.


The second post is by Jonathan Hafetz at Balkinization. Prof. Hafetz writes about a case, The People v. Morales, in which the New York Court of Appeals reversed the convictions for terrorism of members of a gang responsible for a shooting in which a child was killed and another bystander suffered horrible injuries. New York’s law defined terrorism as the commission of one of a range of offences with the “intent to intimidate or coerce a civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by murder, assassination or kidnapping.” On the face of it, this might include gang violence, but that would be a very broad interpretation and the Court rejected it. As prof. Hafetz writes,

While [treating gang violence as terrorism] might enhance prosecutorial power, it could undermine other law enforcement efforts to reduce gang activity, which often involve a combination of traditional criminal sanctions and gang-prevention programs … At the same time, treating gang violence as terrorism would alter collective understandings of the type of acts—the deliberate and ideologically motivated targeting of the civilian population—viewed as terrorism, potentially diluting the exceptional stigma attached to those acts and undermining public support for anti-terrorism efforts generally.

This suggests that it is well that the Supreme Court of Canada, in its recent decision in R. v. Khawaja, 2012 SCC 69, about which I wrote here, refused to declare unconstitutional the “motive clause” in the Criminal Code’s definition of terrorism, which provides that in order to be considered terrorism, an “act or omission” must be “committed in whole or in part for a political, religious or ideological purpose, objective or cause.” While Mr. Khawaja argued that the motive clause would in effect give excessive powers of ideological surveillance to law enforcement agencies, what it really does is to limit their power by making it impossible to do what the New York prosecutors tried to do and treat “ordinary” criminal violence, however serious, as terrorism. A case such as Morales would simply not have been possible under the Criminal Code―thanks to the “motive clause.” Good thing that the Supreme Court let it stand.

Anti-Terrorism Act Upheld

In a unanimous decision by the Chief Justice, the Supreme Court has today upheld the constitutionality of the anti-terrorism provisions of the Criminal Code, enacted after 9/11 as the Anti-Terrorism Act, S.C. 2001 c. 41. The case is R. v. Khawaja, 2012 SCC 69. In addition to  constitutionality of the provisions in question Mr. Khawaja also raised issues relating to their application in his case and to the appropriateness of the stiff sentence (simplifying, life imprisonment and no possibility of parole for 10 years) which the Court of Appeal for Ontario had imposed on him. I will only deal with the constitutional issues in this post.

Two arguments were raised in support of the claim that the anti-terrorism provisions were unconstitutional. The first, which Mr. Khawaja had made at first instance but abandoned on appeal, but which was raised by the appellants in a companion case, Sriskandarajah v. United States of America, 2012 SCC 70, and which the Supreme Court considered in Khawaja for the sake of completeness, was that the Criminal Code‘s definitions of terrorist activity and participation in terrorist activity were overbroad. The second was that it created a chilling effect which infringed the freedoms protected by s. 2 of the Canadian Charter of Rights and Freedoms, especially freedom of expression.

The Court rejected the overbreadth claim after some clarification of the anti-terrorist provisions’ scope. The appellants in Sriskandarajah argued that they would “capture[…] conduct that does not contribute materially to the creation of a risk of terrorism, such as direct and indirect participation in legitimate, innocent and charitable activities carried out by a terrorist group” (par. 42). Criticism, or worries, along these lines had also been expressed by academics. But, the Court noted, the definition of support for terrorism includes requirements that such support be knowing and “for the purpose” of enabling or facilitating terrorism. It also took the view that “Parliament did not intend for the provision to capture conduct that creates no risk or a negligible risk of harm” (par. 50). Worries that people taking part in peaceful protests or, say, lawyers defending terrorism suspects, could be accused are thus unwarranted. While the provision is broad, it is not disproportionate to “the objective of preventing the devastating harm that may result from terrorist activity” (par. 62).

The second argument against the constitutionality of the Criminal Code’s definition of terrorism  was that defining terrorism by “a political, religious or ideological purpose,” as s. 83.01(1)(b)(i)(A) of the Code does, aims at restricting citizens’ freedoms of expression, religion, and association or will have a chilling effect on the exercise of these freedoms. The Court focuses on freedom of expression. It points out that violence, however expressive, is not covered by the Charter‘s guarantee of freedom of expression. Nor, it says, are threats of violence. The Criminal Code‘s definition of terrorism mostly captures acts or threats of violence, and to that extent they are unquestionably constitutional.  The only potentially problematic aspect of the definition is that it includes disruptions of essential services and systems, except as a result of protest not intended to cause harm to life, health, or property. At least for the most part, says the Court, this too concerns acts or threats of violence; if a future case reveals that this provision can capture non-violent expressive activity, this conclusion can be revised on its facts. As for chilling effect, the Court concludes that it is not a justified worry. There is some dispute over how chilling effect can be established―are logical inferences enough, or does there have to be evidence? The Court says that an inference may be enough in some cases―but not here. For one thing, a finding of chilling effect has to be based on a correct understanding of the impugned provision. And once it is understood that the definition of terrorism only encompasses acts or threats of violence, there is no ground to fear that it will be applied to non-violent expression. For another, if it appears that law enforcement uses the provision for biased profiling activities, then it is these, rather than the law itself, which will need to be challenged.

Sounds sensible to me.