R. v. Bissonnette, 2020 QCCA 1585, 2022 SCC 23 (39544)
“On January 29, 2017, 46 people were gathered in the Great Mosque of Québec for evening prayer. B burst in and, armed with a semi‑automatic rifle and a pistol, opened fire on the worshippers, causing the death of 6 people and seriously injuring 5 others. B pleaded guilty to the 12 charges laid against him, including 6 counts of first degree murder. An accused who is convicted of first degree murder will receive a minimum sentence of imprisonment for life and will be eligible for parole only after serving an ineligibility period of 25 years. B therefore received that sentence automatically. The Crown also asked that s. 745.51 of the Criminal Code be applied. This provision authorizes a court to order that the periods without eligibility for parole for each murder conviction be served consecutively rather than concurrently. In the context of first degree murders, the application of this provision allows a court to add up parole ineligibility periods of 25 years for each murder.
B challenged the constitutionality of s. 745.51. The trial judge held that this provision infringed the right not to be subjected to any cruel and unusual treatment or punishment and the right to liberty and security of the person guaranteed to B by s. 12 and s. 7 of the Charter, respectively, and that the provision could not be saved under s. 1. To remedy the unconstitutionality of the provision, the trial judge applied the technique of reading in and interpreted s. 745.51 as granting courts a discretion to choose the length of the additional ineligibility period to impose on an offender. He ordered that B serve a total ineligibility period of 40 years before being able to apply for parole. The Court of Appeal allowed B’s appeal and declared s. 745.51 invalid and unconstitutional on the basis that it was contrary to ss. 12 and 7 of the Charter. It noted that the declaration of unconstitutionality was to take effect immediately. It found that reading in was inappropriate, and it therefore struck down the unconstitutional provision. It accordingly ordered that B serve a 25‑year parole ineligibility period on each count before being able to apply for parole and that these periods be served concurrently.”
The SCC (9:0) dismissed the appeal.
Chief Justice Wagner wrote as follows (at paras. 4-9, 108, 139-141):
“For the reasons that follow, I conclude that s. 745.51 Cr. C. is contrary to s. 12 of the Charter and is not saved under s. 1. In light of this conclusion, it will not be necessary to consider the alleged infringement of s. 7 of the Charter.
Section 12 of the Charter guarantees the right not to be subjected to cruel and unusual punishment or treatment. In essence, its purpose is to protect human dignity and ensure respect for the inherent worth of each individual. This Court recently affirmed, albeit in a different context, that human dignity transcends the interests of the individual and concerns society at large (Sherman Estate v. Donovan, 2021 SCC 25, at para. 33). In this sense, the significance of this appeal extends well beyond its particular facts.
Section 12 of the Charter prohibits the state from imposing a punishment that is grossly disproportionate in relation to the situation of a particular offender and from having recourse to punishments that, by their very nature, are intrinsically incompatible with human dignity.
The provision challenged in this case allows the imposition of a sentence that falls into this latter category of punishments that are cruel and unusual by nature. All offenders subjected to stacked 25‑year ineligibility periods under s. 745.51 Cr. C. are doomed to be incarcerated for the rest of their lives without a realistic possibility of being granted parole. The impugned provision, taken to its extreme, authorizes a court to order an offender to serve an ineligibility period that exceeds the life expectancy of any human being, a sentence so absurd that it would bring the administration of justice into disrepute.
A sentence of imprisonment for life without a realistic possibility of parole is intrinsically incompatible with human dignity. Such a sentence is degrading insofar as it negates, in advance and irreversibly, the penological objective of rehabilitation. This objective is intimately linked to human dignity in that it conveys the conviction that every individual is capable of repenting and re‑entering society. This conclusion that a sentence of imprisonment for life without a realistic possibility of parole is incompatible with human dignity is not only reinforced by the effects that such a sentence may have on all offenders on whom it is imposed, but also finds support in international and comparative law.
To ensure respect for the inherent dignity of every individual, s. 12 of the Charter requires that Parliament leave a door open for rehabilitation, even in cases where this objective is of secondary importance. In practical terms, this means that every inmate must have a realistic possibility of applying for parole, at the very least earlier than the expiration of an ineligibility period of 50 years, which is the minimum ineligibility period resulting from the exercise of judicial discretion under the impugned provision in cases involving first degree murders.
In summary, although s. 12, like any other Charter provision, must be interpreted primarily by reference to Canadian law and history (9147‑0732 Québec inc., at para. 20; see also Kindler, at p. 812), a parallel can be drawn between the approach taken in Canadian criminal law and the approaches taken in international law and in the law of various countries similar to Canada with respect to sentences of imprisonment for life without the possibility of parole, which are generally considered to be incompatible with human dignity.
In summary, by stipulating that a court may impose consecutive 25‑year parole ineligibility periods, the impugned provision authorizes the infliction of a degrading punishment that is incompatible with human dignity. Under this provision, a court has the power to sentence an offender to imprisonment for life without a realistic possibility of parole for 50, 75 or even 150 years. In other words, in the context of multiple first degree murders, all offenders to whom this provision applies are doomed to spend the rest of their lives behind bars, and the sentences of some offenders may even exceed human life expectancy.
Not only do such punishments bring the administration of justice into disrepute, but they are cruel and unusual by nature and thus contrary to s. 12 of the Charter. They are intrinsically incompatible with human dignity because of their degrading nature, as they deny offenders any moral autonomy by depriving them, in advance and definitively, of any possibility of reintegration into society. Sentences of imprisonment for life without a realistic possibility of parole may also have devastating effects on offenders, who are left with no incentive to rehabilitate themselves and whose incarceration will end only upon their death. Parliament may not prescribe a sentence that negates the objective of rehabilitation in advance, and irreversibly, for all offenders. This penological objective is intimately linked to human dignity in that it reflects the conviction that every individual has the capacity to reform and re‑enter society. For the objective of rehabilitation to be meaningful, every inmate must have a realistic possibility of applying for parole, at the very least earlier than the expiration of the minimum ineligibility period of 50 years stipulated in the impugned provision for cases involving first degree murders. What is at stake is our commitment, as a society, to respect human dignity and the inherent worth of every individual, however appalling the individual’s crimes may be.”