The crime was monstrous, unheard of in Canadian history: A man enters a mosque, shoots six people dead because of their religion. The Quebec prosecutor asked for parole eligibility to be set at 150 years, reflecting “the height of social censure.” But a psychologist testified that Alexandre Bissonnette is not a psychopath, just a mentally ill, former victim of bullying who wanted people to stop laughing at him; he can be rehabilitated, the psychologist said. The defence lawyer pleaded for 25 years.
The sentencing on Friday of Mr. Bissonnette, 29, is a primal test of the justice system’s values in the postcapital-punishment era – and of a punishment some label “Canada’s new death penalty.”
It is not the only such test on Friday. In Toronto, a judge is to sentence 67-year-old serial killer Bruce McArthur for eight counts of first-degree murder, whose victims were mostly connected to the city’s Gay Village. The Crown has asked for parole to be set at 50 years, taking him to 116. The defence urged 25 years.
Beginning in 2011, Canadian judges were given the authority to stack up parole eligibility periods for mass killers – adding 25 years for each first-degree murder, if they choose to do so.
Since then, U.S.-style sentences – those that bear no relation to the human life span, that amount in effect to life without parole – have become the norm for mass killers.
And the Liberal government has not challenged the trend by undoing the law written by the Conservative government that preceded it, despite a review of sentencing reforms ordered by Prime Minister Justin Trudeau in his 2015 mandate letter to his first justice minister.
It falls, then, to judges – in how they use their discretion, and in whether they find the law to be a justifiable use of state power, under Canada’s Charter of Rights and Freedoms.
Now some judges, though a minority, are publicly speaking up against the stacking of parole periods. And Mr. Bissonnette’s lawyer is launching a constitutional challenge based on the preservation of hope as a requirement of Canadian law. It is not the first such challenge – two previous ones have failed in Ontario’s lower courts – but it could yet be the one that winds its way up to the Supreme Court.
The sentencing of Alexandre Bissonnette and Bruce McArthur could mark a turning point – reinforcing the trend to a retributive, rest-of-life sentence, or pointing the country in a new direction.
Capital punishment’s hold on the Canadian justice system lasted until recent times. Until 1961, murder was automatically punishable by death, unless the federal cabinet commuted the sentence to life in prison. From 1867 to that point, just less than half of all death penalties were commuted. Murderers could be released on parole; the average time spent in prison up to 1961 for murder was just less than 20 years. The last two executions were in 1962.
Capital punishment ended in 1976 with a Parliamentary compromise: an automatic life sentence for first-degree murder, with no parole hearing for 25 years; and, in a nod to those who felt 25 years was worse than death, a “faint-hope clause” that gave killers, even multiple murderers, the right to apply to a jury after 15 years for an early parole hearing.
Bit by bit, that compromise fell apart. In 1997, a Liberal government rewrote the law to deny early parole applications to multiple killers. In 2011, the Conservative government of Stephen Harper killed the faint-hope clause, and then gave judges the discretion to add parole ineligibility periods together for mass killers. The idea was that killers should not receive a “sentencing discount” after the first killing.
“I think it helps increase people’s confidence in the criminal-justice system,” Conservative MP Rob Nicholson, who was the justice minister in 2011, said in an interview.
He also said the government sought to protect victims’ families from being revictimized at parole hearings. Paul Bernardo, for instance, who sexually assaulted and killed three teenage girls in the early 1990s, had his first parole hearing last September. In a victim-impact statement for herself, her husband and her son, Debbie Mahaffy, mother of murder victim Leslie Mahaffy, said it was “gut-wrenching” to have to prepare for it. “We have to relive Leslie’s pain and horror – our pain and horror – as if it happened yesterday.”
During Stephen Harper’s tenure as prime minister, Mary Campbell was a senior adviser on parole policy. She abhors the parole-stacking law, dubbing it the new death penalty.
“Look, these cases are indescribably horrible,” she says. “But the question is not, ‘What do they deserve?’ It is, ‘What do we deserve as a just and democratic society?’ If we respond to a callous killing by doing the same thing in return, are we any better than the perpetrator?”
In 13 of 20 mass killings in Canada since 2011 in which at least one count of first-degree murder was involved, judges have set parole eligibility well beyond 25 years. (One who received just 25 years was Elizabeth Wettlaufer, an Ontario nurse who confessed to killing eight elderly patients; the Crown and defence made a joint submission on sentencing, saying she had spared the families of her victims a trial by pleading guilty.)
Travis Baumgartner of Alberta was the first mass killer to be punished under the new law, in 2013. An armoured car guard, he shot to death three of his co-workers in 2012. One killing was deemed first-degree murder, and two were second-degree; the Crown and defence together asked for parole eligibility of 40 years. He was 21 when convicted; he will have his first chance at freedom at 61.
Since then, parole eligibility ordered under the 2011 law would take the 57-year-old Douglas Garland to the age of 132, for the killings of a couple and their five-year-old grandson in Alberta; Boris Borutski, 60, to nearly 130, for the murder of three former female partners in Ontario; 40-year-old John Ostamas to 115, for beating to death three homeless men in Manitoba; Derek Saretzky, 24, to 97, for three killings, including a two-year-old girl, in Alberta; and Justin Bourque, 24, to 99, for shooting three RCMP officers dead in New Brunswick.
Earlier this month, though, an Alberta judge refused to impose more than one 25-year period on Laylin Delorme, who at 24 participated in two cold-blooded killings of convenience-store employees. The Crown asked for 50 years. There was no Charter challenge. Justice Robert Graesser of the Alberta Court of Queen’s Bench simply used his discretion to say no.
But in doing so, he set out multiple objections to the law – that it destroyed hope, precluded rehabilitation, was unduly harsh and ignored the special circumstances of Indigenous offenders (Mr. Delorme is Métis).
“I have greater faith in the National Parole Board than did Parliament in 2011,” he wrote in his ruling.
In the United States, 50,000 people are serving life sentences without parole, for a variety of crimes, from murder to drug trafficking to non-violent property crimes; in Canada, the numbers are still small, and reserved for mass killers. On Friday, judges will look down on two convicted killers and decide whether this country’s worst crimes merit U.S.-style punishment.
The Globe and Mail, February 6, 2019