Measures passed under Stephen Harper’s government to end so-called “candy sentences” are under attack this week in the Supreme Court of Canada. The highest court in the land will assess whether a series of mandatory minimum sentences introduced under the former Conservative prime minister are contrary to the Canadian Constitution, as well as the “multiple murders” article which had allowed a judge to impose to the Quebec mosque shooter 40 years in prison.
Alexandre Bissonnette faced 150 years in prison for killing six people in 2017.
Normally, the first-degree murder charge carried a life sentence, with no possibility of parole for 25 years. It was the heaviest sentence provided for in the Criminal Code.
But the situation changed in 2011.
The Conservative government added a section to the Criminal Code that allows the judge, in the event of mass killings, to add up the periods of 25 years—one per murder—before the convicted person can ask to be released. For the mosque shooter, that could bring his prison sentence to 150 years, beyond the life expectancy of a human — a life prison sentence, period.
Such a duration had been described as a “death sentence by incarceration” by his lawyers who were trying to avoid him.
“Incompatible with human dignity,” they added, arguing that it would evacuate any possibility of rehabilitation and social reintegration, two cornerstones of the prison system.
They partially succeeded, with the judge opting to send Bissonnette behind bars for a minimum of 40 years. This solution did not please either the defense or the Crown prosecutors, who both lodged an appeal. The Quebec Court of Appeal invalidated section 745.51 of the Criminal Code and reduced the period of inadmissibility to 25 years, recalling that sentences must not satisfy a “vengeful spirit”.
Thursday, the Supreme Court will hear the parties and will have to decide in particular whether this combination is a “cruel or unusual punishment”, prohibited by section 12 of the Canadian Charter of Rights and Freedoms. She can decide to erase it from the Criminal Code.
After Bissonnette’s sentence was reduced, some argued that this meant there was no difference between killing one person or six.
But the sentence imposed is “life imprisonment”, recalls Mand Véronique Robert, specialized in criminal law. And then there is this possibility of applying for parole after 25 years.
“Which does not mean that the convicted person will get it”.
The parole board can assess the offender’s situation, taking into account a host of factors, including the possibility of rehabilitation, understanding of the harm done and regrets.
“The Sainte-Anne-des-Plaines penitentiary is full of people who have been there for 35 or 40 years,” she says. The two men convicted of the Jacques Cartier Bridge crimes in 1979, for example, are still behind bars despite several attempts to be released. The parole board calculates that it denies the first request of seven out of ten offenders.
Minimum Sentences
Under the Harper era, many minimum prison sentences were added for crimes involving sex, drugs or firearms.
These sentences have not become the norm, but their number has nonetheless increased significantly since 2006. There are now around 100 crimes for which such a minimum sentence has been established. Their validity is often questioned, to the point where a lawyer has created a table allowing his colleagues to know if a provision is already challenged.
This week, the Supreme Court heard four cases in which the constitutionality of such minimum sentences was debated: three relate to firearms offenses — for which a minimum of three or four years in prison is prescribed — and another for trafficking cocaine, as the Criminal Code now prohibits conditional sentences in certain circumstances.
Here too, the highest court in the country will be called upon to decide whether these sentences are “cruel and unusual”, underlines Mand Robert. The minimum sentence, she argues, “takes away the judge’s discretion to assess all the circumstances of the commission of the crime” and the situation of the offender.
Because this exercise is imposed on the judge by the Criminal Code, which lists a series of “aggravating or mitigating” circumstances that he must assess to find the appropriate sentence: did the crime target a child? Was he motivated by hate? — an aggravating factor that cannot be ruled out in the case of Alexandre Bissonnette.
However, with minimum sentences, “judges have their hands tied,” says the criminal lawyer.
As for a reason often cited for the existence of these minimum sentences, namely to avoid “candy sentences”, Ms.and Robert recalls that there are scales for each crime, developed by case law, which already guide magistrates. And in the event of an unreasonable difference, the Court of Appeal can intervene.
Moreover, these minimum sentences collide with Supreme Court decisions that encourage judges to take into account the reality of Aboriginal people and to consider a sentence other than detention.
“These minimum sentences have a disproportionate impact on Indigenous people and vulnerable people, including those with mental disorders,” said the British Columbia Civil Liberties Association, which argued its case in Supreme Court. For her, any sentence that does not examine the particular circumstances of the offender is unconstitutional.
Demands to have them declared unconstitutional keep the courts busy. In December, the Department of Justice reported tracking 217 Charter challenges. And according to him, 70% of these challenges for drug-related offenses have been successful.