Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

This Week at the SCC

On Friday, May 27, 2022, the Supreme Court of Canada is releasing its decision in R.v. Bissonnette. At issue is the constitutionality of consecutive life sentences.

Bissonnette pled guilty to six counts of first-degree murder and six counts of attempted murder in relation to the attack at the Centre Culturel Islamique de Quebec. At sentencing, he challenged the constitutional validity of s. 745.51 of the Criminal Code, a provision which permits a judge in the event of multiple murders, in addition to imposing a life sentence, to order parole ineligibility periods, to be served consecutively, of 25 years for each murder. The sentencing judge concluded that the section in question infringes ss. 12 and 7 of the Charter, and that the limits on the protected rights had not been shown to be justified in a free and democratic society. He found that the appropriate remedy would be to read in a new wording that would allow a court to impose consecutive periods of less than 25 years. Bissonnette was sentenced to life in prison with no eligibility for parole for 40 years (25 years no parole for 5 of the 6 murders and another 15 years for the 6th murder).

The Quebec Court of Appeal reached the same conclusions as regards the constitutionality of the provision, but it was of the view that the constitutional incompatibility identified by the sentencing judge goes to the very heart of the provision and that reading in is therefore not appropriate. It accordingly declared that s. 745.51 is invalid and of no force or effect. It ordered a total period of parole ineligibility of 25 years in this case. The Crown appealed to the SCC.

At the SCC, the Crown argued that preventing Bissonnette from seeking parole after only 25 years does not fit the severity of the crimes he committed. They asked for 50 years. The defence argued that stacking consecutive periods without the possibility of parole was unconstitutional and amounted to “cruel and unusual” punishment. It is absurd to allow parole ineligibility that extends far beyond a person’s natural life.

Last Week at the SCC

On May 13, 2022, the SCC released its decisions in R. v. Brown, 2022 SCC 18 and R. v. Sullivan, 2022 SCC 19.

  • In both cases, the Court sided with the defence and restored acquittals on the basis of automatism.
  • Section 33.1 of the Criminal Code prevented a person from using automatism as a defence for crimes involving assault or interference with the bodily integrity of another person.
  • The Court found s. 33.1 violates s. 11(d) of the Charter because society could interpret someone’s intent to become intoxicated as an intention to commit a violent offence. It also violates s. 7 because a person could be convicted without the prosecution having to prove that the action was voluntary or that the person intended to commit the offence. Convicting someone for how they conducted themselves while in a state of automatism violates principles of fundamental justice.
  • The Court said that Parliament could enact new legislation to hold an extremely intoxicated person accountable for a violent crime.
  • About 60% correctly predicted this outcome.

-Tom Slade