R v Bissonnette: The Supreme Court’s Ruling on the Constitutionality of Consecutive First Degree Murder Sentences

by Caitlin Salvino

In R v Bissonnette, released on May 27, 2022, the Supreme Court of Canada (SCC) ruled on the constitutionality of consecutive first degree murder sentences.[1] The SCC held that consecutive first degree murder sentences, authorised under section 745.51 of the Criminal Code (the Code) violates section 12 of the Canadian Charter of Rights and Freedoms (Charter) and cannot be “demonstrably justified” in a free and democratic society.

The SCC ruling in Bissonnette garnered headlines across Canada[2] and a strong reaction by some Canadian political leaders[3]. This piece will examine the decision and the reasoning that influenced this unanimous SCC decision.

Legislative History

After the death penalty was abolished in Canada, Parliament created mandatory minimum life sentences for the two categories of first degree and second degree murder. For second degree murder the parole ineligibility period varies between 10 and 15 years. For first degree murder, the parole ineligibility is automatically 25 years, regardless of the number of victims.[4] In 2011, Parliament introduced amendments to the Code under section 745.51 that permitted individuals convicted of multiple counts of murder to have each murder sentence applied consecutively.[5] Thus, a judge may determine that an individual convicted of multiple murders should be sentenced to mandatory periods of ineligibility for parole served consecutively.[6]

Factual Background and Procedural History

On January 29, 2017, the respondent (Alexandre Bissonnette) entered the Great Mosque of Québec with a semi-automatic rifle and opened fire on a crowd of 46 worshippers. Bissonnette killed 6 people and seriously injured 5 others. He pleaded guilty to 12 charges, including 6 counts of first degree murder.[7]

At sentencing the Crown requested that section 745.51 of the Code be applied and the six mandatory periods of ineligibility for parole be served consecutively. If applied consecutively, the sentences would total 150 years before Bissonnette could be eligible for parole. Bissonnette argued that applying section 745.51 of the Code infringes sections 7 and 12 of the Charter.

The Quebec Superior Court held that section 745.51 of the Code violates sections 7 and 12 of the Charter and cannot be “demonstrably justified” under section 1 of the Charter.[8] After declaring the provision unconstitutional, the judge then applied the remedy of reading in and sentenced Bissonnette to 40 years in prison before applying for parole.[9]

The Quebec Court of Appeal (QCCA) unanimously held that section 745.51 of the Code violates sections 7 and 12 of the Charter and cannot be “demonstrably justified” under section 1 of the Charter.[10] The QCCA also held that the trial judge erred in sentencing Bissonnette to 40 years in prison without parole eligibility. The identified error in law was that the sentencing alteration had no basis in law.[11]

Interpreting Section 12 of the Charter: Cruel and Unusual Punishments

In an unanimous decision the SCC ruled that section 745.51 of the Code violates section 12 of the Charter and cannot be saved under section 1. Based on this finding the SCC did not consider if section 7 of the Charter was engaged.[12]

Section 12 of the Charter states that “everyone has the right not to be subjected to any cruel and unusual treatment or punishment”.[13] Notably, this right applies to everyone regardless of citizenship status but is limited to humans.[14] Section 12 is engaged only when there is either a punishment or a treatment. In Bissonnette, the SCC determined that the serving of consecutive sentences without the possibility of parole qualified as a punishment to engage section 12.

The SCC then clarified the application of section 12 before applying the principles to the case. Chief Justice Wagner, on behalf of the unanimous Court, affirmed that section 12 has two prongs that must be distinguished.[15] First, section 12 safeguards against a punishment that “is so excessive as to be incompatible with human dignity”.[16] This category is comprised of punishment that not only is excessive but is grossly disproportionate compared to what would have been appropriate.[17] Recent jurisprudence on mandatory minimum sentences have found them to be grossly disproportionate for imposing punishment without consideration of the offenders specific circumstances.[18] Second, section 12 safeguards against punishment that “is intrinsically incompatible with human dignity”.[19] This narrower category comprised of punishments that are by nature incompatible with human dignity will always be considered grossly disproportionate.[20] Other punishments recognised in this evolving category include corporal punishment, lobotomisation of certain dangerous offenders and castration of sexual offenders.[21]

The SCC held that a punishment will be held to infringe section 12 if either of these two prongs is engaged. While pursuing a section 12 analysis, the SCC determined that courts must first analyse the nature of the punishment before considering gross disproportionality.[22]

Application to Bissonnette Factual Matrix

After considering the facts the SCC held that the application of consecutive first degree murder sentences without the possibility of parole was grossly disproportionate because they “are degrading in nature and thus incompatible with human dignity”. This determination was made based on the finding that such consecutive sentences deny offenders any possibility of reform and societal reintegration.[23] Based on the lower life expectancy of individuals in prison, the SCC held that any consecutive sentence of 50 years or more without parole was akin to a life sentence without parole.[24] The SCC also drew on comparative[25] and international law[26] to guide their interpretation of the Charter rights.

The SCC concluded their section 12 analysis by determining that the discretionary nature of sentences and the royal prerogative authority does not permit imposing a punishment contrary to section 12 of the Charter.

After finding that consecutive first degree murder sentences without parole eligibility infringes section 12, the SCC briefly analysed whether section 745.51 of the Code could be saved under section 1. Section 1 of the Charter, also known as the reasonable limits clause, allows the government to reasonably limit a Charter right if the limitation “can be demonstrably justified in a free and democratic society”.[27] The SCC drew on its earlier decision in R v Nur to find that “it is hard to imagine how a punishment that is cruel and unusual by nature could be justified in a free and democratic society”.[28]

At the remedy stage, the SCC held that the trial court erred in its interpretation of its authority under the remedy of reading in.[29] Instead, the SCC applied section 52(1) of the Constitution Act, 1982 to declare section 745.51 of the Code invalid for a breach of section 12 of the Charter that could not be saved under section 1.[30] The declaration of invalidity would come into effect immediately.[31]

Looking Ahead

Bissonnette is the second unanimous SCC decision rendered on Charter rights within criminal law proceedings in May 2022. In R v Sullivan, the SCC held that the barring of the defence of self-induced intoxication for crimes of general intent under section 33 of the Code unjustifiably infringed sections 7 and 11(d) of the Charter.[32] These two unanimous decisions establish clear safeguards for the constitutional rights of individuals accused of an offence or undergoing sentencing.

Immediately following the release of the Bissonnette decision, two federal Conservative Party of Canada leadership candidates expressed their intent to invoke the notwithstanding clause to temporarily set aside the effects of the decision.[33] The notwithstanding clause entrenched under section 33 of the Charter, is a legislative tool that permits a federal, provincial, or territorial legislature to declare an Act or provision of an Act to operate notwithstanding sections 2 and 7 to 15 of the Charter. Any notwithstanding clause declaration must be passed by a legislative simple majority and expires after five years.[34] If the notwithstanding clause were to be invoked to temporarily suspend section 12 of the Charter, it would be the first time ever used by the federal Parliament.[35]

Caitlin Salvino is a JD Candidate at the Faculty of Law and is the Asper Centre’s 2022 summer Research Assistant.

[1] R v Bissonnette, 2022 SCC 23 [Bissonnette].

[2] Isabelle Porter, “Alexandre Bissonnette pourra chercher une libération conditionnelle après 25 ans”, Le Devoir (28 May 2022), online: <https://www.ledevoir.com/societe/justice/716079/decision-cour-supreme-alexandre-bissonnette-mosquee-de-quebec>; Joe Lofaro, “Supreme Court rules Quebec City mosque killer to be eligible for parole in 25 years”, CTV Montreal (27 May 2022), online: <https://montreal.ctvnews.ca/supreme-court-rules-quebec-city-mosque-killer-to-be-eligible-for-parole-in-25-years-1.5921148>; Antoni Nerestant, “Quebec City mosque shooter must get chance at parole after 25 years, Supreme Court rules”, CBC News Montreal (27 May 2022), online: <https://www.cbc.ca/news/canada/montreal/supreme-court-canada-bissonnette-mosque-shooting-sentence-parole-1.6466847>; Sean Fine, “Supreme Court to rule on constitutionality of life without parole in case of Quebec City mosque shooter”, The Globe and Mail (25 May 2022), online: <https://www.theglobeandmail.com/canada/article-supreme-court-quebec-city-mosque-shooter/>.

[3] Federal Conservative Party of Canada leadership candidates Pierre Poilievre and Patrick Brown both released statements following the SCC ruling pledging to invoke the notwithstanding clause to temporarily suspend the decision if elected. The notwithstanding clause under section 33 of the Charter, permits a federal, provincial or territorial legislature to suspend sections 2 and 7 to 15 of the Charter for a renewable period of 5 years. See Peter Zimonjic, “Government disagrees with top court’s decision on gunman’s parole but will respect it: Lametti”, CBC News (27 May 2022), online: <https://www.cbc.ca/news/politics/lametti-top-court-parole-decision-1.6468914>; Canadian Charter of Rights and Freedoms, s 8, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), c 11 (Canadian Charter of Rights and Freedoms), 1982, s 33.

[4] Bissonnette, supra note 1 at para 31.

[5] Ibid at para 34.

[6] Criminal Code, RSC 1985, c C-46, s 745.51.

[7] Bissonnette, supra note 1 at paras 11–12.

[8] R c Bissonnette, 2019 QCCS 354.

[9] Ibid.

[10] Bissonnette c R, 2020 QCCA 1585.

[11] Ibid.

[12] Bissonnette, supra note 1 at para 119.

[13] Canadian Charter of Rights and Freedoms, supra note 3, s 12.

[14] Quebec (Attorney General) v 9147-0732 Québec inc., 2020 SCC 32.

[15] Bissonnette, supra note 1 at para 59.

[16] Ibid at para 60.

[17] Ibid at para 61.

[18] Ibid at para 63 citing R v Nur, 2015 SCC 15; R v Ferguson, 2008 SCC 96; R v Lloyd, 2016 SCC 13.

[19] Bissonnette, supra note 1 at para 60.

[20] Ibid at para 64.

[21] Ibid at paras 64–65.

[22] Ibid at para 69.

[23] Ibid at para 73.

[24] Ibid at para 78.

[25] Ibid at paras 105–106.

[26] The SCC referenced the Charter of the United Nations, the International Covenant on Civil and Political Rights, the Rome Statute, and the European Convention on Human Rights. See ibid at paras 99–104.

[27] Canadian Charter of Rights and Freedoms, supra note 3, s 1.

[28] Bissonnette, supra note 1 at para 121.

[29] Ibid at para 124.

[30] Ibid at para 123.

[31] Ibid at para 125.

[32] R. v. Sullivan, 2022 SCC 19. For an analysis of Sullivan, see Kathryn Mullins. ”R v Sullivan, R v Chan and R v Brown: The Supreme Court’s Ruling on the Defence of Extreme Intoxication”. David Asper Centre for Constitutional Rights, May 2022. online: https://aspercentre.ca/r-v-sullivan-r-v-chan-and-r-v-brown-the-supreme-courts-ruling-on-the-defence-of-extreme-intoxication/.

[33] Zimonjic, supra note 3.

[34] Canadian Charter of Rights and Freedoms, supra note 3, s 33.

[35] Caitlin Salvino, “A Tool of Last Resort: A Comprehensive Account of the Notwithstanding Clause Political Uses 1982-2021” (2022) 16:1 JPPL.

Recapping Brandon Garrett’s Constitutional Roundtable on Wealth, Equal Protection, and Due Process

by Kylie de Chastelain

On Wednesday, October 2nd, 2019 the Asper Centre hosted Professor Brandon Garrett for a Constitutional Roundtable titled “Wealth, Equal Protection and Due Process.”

Professor Garrett presented work from a recent paper exploring “equal process” – a term he coined to describe the intersection between the Equal Protection and Due Process Clauses in the United States Constitution. “Equal process” claims have already arisen from Supreme Court and lower court cases where the main issue is wealth inequality, but courts have been wary of engaging with constitutional issues on a cumulative or intersectional basis. Garrett argues that the “equal process” approach should be more widely implemented to help address a series of pressing civil right issues, including the constitutionality of fines, loss of voter rights or driver’s licenses, and detention for inability to pay cash bail.

To illustrate the damaging effects of “punishing the poor,” and the need for an “equal process” approach, Garrett presented findings from a compelling empirical research study he conducted at Duke Law’s JustScience Lab. The study examined driver’s license suspensions in North Carolina from 1996-2018. In North Carolina, licenses can be suspended for a failure to pay traffic tickets or failure to appear in court. Many states have similar legislation. However, in North Carolina, as elsewhere, insufficient public transit options make driving a necessity. The loss of one’s license can have substantial material effects on livelihood and employment.

Garrett and his team found that approximately 1 out of 7 driving-age individuals in North Carolina currently have suspended licenses, for a total of 1,225,000 active suspensions. Of these, 827,000 are for a failure to appear in Court, 263,000 are for a failure to comply with orders to pay traffic fines or court fees, and 135,000 are for both. This data was further analyzed against race and class metrics to find that driver’s license suspensions occur disproportionately in low-income and non-white populations. In other words, license suspension and legal procedure of this kind punish people for poverty; something the Equal Protection Clause explicitly aims to prevent.

Historically, U.S. courts have been unwilling to examine constitutional issues such as these in creative ways, preferring to examine constitutional matters in isolation. This clause-by-clause tactic, Garrett argues, fails to adequately address the complex issues arising from poverty. An interdisciplinary approach yields better results.

For example, in Bearden v Georgia, 461 U.S. 660 (1983), a man who was sentenced to probation and ordered to pay $750 in fines but could not afford to do so eventually had his probation revoked. The Bearden Court explicitly merged Equal Protection and Due Process analyses in this case, noting that a classic procedural approach – where fine amounts are automatic regardless of ability to pay – was inherently unjust. Instead, the Court examined why the man could not pay and explored whether alternative measures could equally serve the state’s interest. Implementing a delayed payment plan, reducing the fine, or ordering time in public service could all fulfill requirements for punishment and restitution without unduly compounding the effects of poverty in this man’s life. Like this, the “equal process” approach could empower courts and litigators to raise joint claims and establish more just modes of penalty.

In this way, Professor Garrett argues, Bearden provides courts and lawyers with a strong basis for raising and trying joint claims. Adopting an “equal process” approach could empower courts to re-examine their objectives and interests in handing down punishment to society’s most vulnerable.

Following Professor Garrett’s presentation, Professor Vincent Chiao offered his comments and insight into the Canadian context. R v Boudreault, 2018 SCC 58 is a recent notable case where the Supreme Court of Canada struck down the mandatory victim surcharge provision of the Criminal Code on the basis that it was unconstitutional. As Chiao noted, the Court’s analysis in Boudreault did not focus on due process or equality but on gross disproportionality and cruel and unusual punishment as per s. 12 of the Charter.

The decision in Boudreault marked a clear departure from R v Tinker 2017 ONCA 522, where the Court reinstated victim surcharges against appellants on the basis that they were “rationally connected” to aims regarding remedy for criminal activities and accountability to victims. In Tinker, s. 12 arguments addressing cruel and unusual punishment were dismissed. But in Boudreault, as in Bearden, the Court acknowledged that victim surcharges compound the effects of poverty, effectively creating ongoing debts that are impossible for offenders to repay. Chiao emphasized that although the result in Boudreault was encouraging, Professor Garrett’s “equal process” approach could help elucidate intersectional, equality-focused jurisprudence in Canada moving forward.

Kylie de Chastelain is a 1L JD student at the Faculty of Law and is the current Asper Centre work-study student.