Overhanging any discussion of crime and punishment, particularly the most serious crimes, is the popular fallacy that the punishment must fit the crime.
Proportionality in sentencing is, to be sure, a fundamental principle of justice. But that is a more complicated matter than a simple matching of punishment with crime. That is not how the justice system works, or should. We do not torture torturers, nor rape rapists; neither do we maim, or kill, those found guilty of either. To ape them in their crimes would involve society in the same moral depravity as its worst citizens.
Indeed, as applied to one particular crime, of multiple murders, the principle of “an eye for an eye” is not only repugnant, but impossible. Even if the death penalty were still in effect, after all, it could be imposed but once. In that sense, multiple murderers have always benefited from a “volume discount.” The severest punishment in law – whether the death penalty, before its abolition in 1976, or life in prison without possibility of parole for 25 years, as it was after that – has always been the same for multiple as for single murders.
That is, it was, until 2011, when the Harper government amended the Criminal Code to allow judges to impose the 25-year minimum prison term for each offence consecutively, rather than concurrently – in effect providing for sentences of 50, 75, or 150 years or more. Not only did this amount to a sentence to death in prison, it asserted the power, absurdly, to go on punishing the prisoner long after his death. It was as if the state were to hang a man twice, or shoot bullets into his corpse.
By overturning that Harper-era amendment, then, via last week’s ruling in the case of R. v Bissonnette, the Supreme Court has not invented some new or bizarre legal theory. It has simply restored ancient common-law principles of justice, not to say common sense, to Canadian sentencing. It is the law, not the ruling, that is radical.
The ruling does not mean that multiple murderers will walk free after 25 years. It does not mean they have a right to parole once the minimum period has expired. It means they have a right to apply. In any such proceeding, the onus is on the prisoner to show why he is no longer a threat to society, not on the Crown to show why he is.
That’s an especially high bar in the case of a multiple murderer. Most still end up dying in prison. But it at least leaves open the possibility. It says that the question of whether a prisoner can, after 25 years or more in jail, be so thoroughly rehabilitated as to make him eligible for parole is one to be assessed individually, at the time: not ruled out universally, in advance.
This, too, is a matter of elemental justice. If the prisoner who makes every effort to rehabilitate himself is required to serve the same time as the prisoner who remains, to the end, as depraved as the day he walked in, how is justice served? What incentive is there, as a matter of practicality, to good behaviour, if there is no reward for it?
The principle that every person, no matter how grave his crimes, must be presumed to have the potential for redemption, even if that potential is never realized, is the same principle that allows him to be found guilty in the first place. To say a prisoner is capable of being rehabilitated – of choosing to do right – is to say that he is also capable of choosing to do wrong. Both are assertions of moral agency, and therefore moral responsibility.
The ruling affects a tiny sliver of the prison population – perhaps a dozen cases, total. It remains open to the government to rewrite the law, within the limits set out by the court. Even if you disagree with the ruling, then, it clearly implies no emergency or crisis. The public is not one whit less safe after the ruling than it was before.
And yet several candidates for Conservative leader – Pierre Poilievre, Patrick Brown, and Jean Charest – reacted with a vow to invoke the notwithstanding clause: the first time any federal government would have done so, were anyone to hold them to it. Has it come to this? Has the notwithstanding clause become so routine, has our perspective become so distorted, that it should be invoked so casually in such an absurd cause: the right to do what no one has any intention of doing – holding people in jail after they are dead?
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