Mass murderers spending life in prison is good, actually. But we don’t need the notwithstanding clause to make it happen

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Over the years, reams of analysis have skewered the Canadian Supreme Court’s decision in R v. Bissonnette, which declared it unconstitutional to sentence offenders to consecutive periods of parole ineligibility on the grounds that it constitutes “cruel and unusual punishment.” But the decision is so myopic, so deleterious to the public’s perception of the fairness of our justice system, that it deserves just a little bit more reproval.

The case at the centre of the decision was that of Alexandre Bissonnette, who, in 2017, opened fire in a Quebec City mosque, killing six. He pleaded guilty to six counts of first degree murder and was sentenced to life in prison without parole for 40 years: 25 years for the first five counts, to be served concurrently, and 15 years for the sixth count, to be served consecutively. Mr. Bissonnette appealed to Quebec’s Court of Appeal, which found the legislation allowing periods of parole ineligibility to be stacked – Section 745.51 of the Criminal Code, introduced by Stephen Harper’s government in 2011 – was unconstitutional. The Crown appealed to the Supreme Court, which unanimously struck down the provision.

Writing for the Court, Chief Justice Richard Wagner said that denying offenders an “incentive to rehabilitate” – which the Court implicitly suggested can only be remit by offering the possibility of parole – violates their rights under Section 12 of the Charter. Mr. Bissonnette will be eligible for parole after 25 years.

The decision was essentially a moral one, effectively enshrining a hierarchy of sentencing objectives that places the opportunity for rehabilitation for offenders above deterrence, denunciation, reparations for the victims and protection of the public. It states that to deny any offender the chance of reintegration is to violate his or her Charter rights and declares that the decision “must not be seen as devaluing the life of each innocent victim,” when, in practice, it does exactly that. Mr. Bissonnette, who murdered six, will be eligible for parole at the same time as if he murdered one, or 600. Thanks to the Supreme Court, families of victims will have to relive their trauma at parole hearings after 25 years, and every five years after that. Mr. Bissonnette might never actually be released from prison, but that’s not the point; the decision throws the justice system into disrepute while actively harming victims.

Conservative Leader Pierre Poilievre’s proposed answer is to invoke the notwithstanding clause to essentially override the Supreme Court, which is both a legitimate and constitutional use of Section 33 of the Charter, despite rather feverish claims to the contrary. Fears that it will prompt a slippery slope are also somewhat misplaced; if anything, Mr. Poilievre’s proposed use of Section 33, which would come after its use or threatened use at the provincial level, would be at the short end of the slope. It would not be in the name of overriding the Charter rights of, say, LGBT children in Saskatchewan or religious minorities in Quebec, but of mass murderers whose supposed “right” to a parole hearing after 25 years has only tenuously been established by the Supreme Court. It might indeed open the door to further usage at the federal level, but that does not itself make Mr. Poilievre’s proposal illegitimate. Indeed, there is a case to be made that elected legislators who are accountable to Canadians should have a hand in matters of such significant public importance.

That said, the notwithstanding clause should not be used in this case (or in many other cases). That’s because of the bluntness of the instrument – overriding Charter rights should be a last resort, not a first proposal – and also because other options exist. The trial judge pointed to one in his initial sentencing of Mr. Bissonnette, when he noted that the Harper legislation “leaves the trial judge no other choice but to cumulate 25-year periods of parole ineligibility or not.” In other words, he could sentence Mr. Bissonnette to 25 years, 50 years, 75 years and so on, but nothing in between. (Though he got around that anyway, writing that S. 745.51 of the Criminal Code should be declared constitutionally invalid for that reason.) He also noted that an amendment was proposed in committee during debate over the legislation that would have allowed judges to retain true discretion in sentencing, but that it was dismissed.

The next government could revive that amendment, or otherwise redraft sentencing legislation such that trial judges can sentence mass murderers to appropriate parole ineligibility periods. For some, that should be closer to life than 25 years, which, one could argue, is neither cruel nor unusual punishment for someone who took six lives, and likely destroyed dozens of others. But that doesn’t require deploying the Charter’s nuclear option.