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.}

by Jeffrey Wang

The Supreme Court of Canada (SCC) recently released the decision of ON (Attorney General) v G. This case challenged the constitutionality of Christopher’s Law, an Ontario law that allowed some offenders who were convicted of sexual offences to be removed from the federal and provincial sex offender registries after 10 years. Christopher’s Law did not extend to any offenders who had been found not criminally responsible due to mental disorder even if they had been absolutely discharged of the crime. The respondent fell within this latter group and challenged this law under s. 15 of the Charter for discrimination on the basis of mental disability.

At the Ontario Court of Appeal, Justice Doherty found that Christopher’s Law violated s. 15 and thus struck down the law. However, he suspended the declaration of invalidity for twelve months in order to allow the legislature to amend the impugned law. Justice Doherty also exempted the applicant G from this suspension, which meant that Christopher’s Law immediately stopped applying to him personally. This exemption was very controversial since it went against the SCC’s jurisprudence in R v Demers that individual remedies under s. 24(1) should not be combined with general remedies under s. 52.

The Asper Centre intervened in ON v G on the issue of remedies. Assisted by Professor Kent Roach, the Centre argued that courts have increasingly used suspended declarations of invalidity without proper justification. The Centre urged the SCC to adopt a more principled approach to applying this constitutional remedy. Additionally, the Centre argued that individual exemptions can be applied in conjunction with suspended declarations of invalidity in order to allow applicants to benefit from their successful Charter challenge.

The SCC’s ON v G decision “accept[ed] the Asper Centre’s invitation to articulate a principled approach to remedies for legislation that violates the Charter.”[1] The majority decision asserted that constitutional remedies should guided by four remedial principles: Charter rights should be safeguarded; the public has an interest in the constitutional compliance of legislation; the public is entitled to the benefit of legislation; and the courts and legislatures play different institutional roles.[2] Constitutional remedies must balance the fact that the public does not want to be governed by unconstitutional legislation but also cannot function under an absence of legislation. To reach this balance, the Court once again urged the judiciary to carefully identify the unconstitutional aspects of legislation and use reading down, reading in, and severance to preserve its constitutional aspects.

In its discussion of suspended declarations, the Court recognizes that there may be times where “giving immediate and retroactive effect to the fundamental rights and freedoms guaranteed by the Charter must…yield to other imperatives.”[3] However, agreeing with the Asper Centre, the Court is clear that suspended declarations should only be granted where the government can demonstrate “that the importance of another compelling interest grounded in the Constitution outweighs the continued breach of constitutional rights.”[4] For example, the government can rely on the distinct roles of the courts and legislatures, but must show that “an immediately effective declaration would significantly impair the ability to legislate.”[5] Courts must also balance the benefits of a suspended declaration against the significance of the Charter right in question. For example, it will be difficult to balance a suspended declaration against potential criminal jeopardy.[6] Moving forward, the Court is clear that suspended declarations will be rare, and the government will also have to justify its length if it were to be granted.

This principled balancing approach expands the previous categorical Schachter framework where suspended declarations were only granted in three specific scenarios. As noted by the Asper Centre and other commentators, many cases after Schachter continued to grant suspensions beyond these categories often without explanation. This more flexible approach in ON v G addresses this concern and allows justified uses of this remedy in more unique circumstances.

The ON v G Court also departed from precedent and allowed the simultaneous application of s. 24(1) and s. 52 remedies. This means that individual claimants can be exempt from suspended declarations. While some have argued that only allowing the claimant to be exempt is unfair to all others in their position, the Court reasoned that the claimant is the one who brought a successful Charter challenge and should reap its rewards.[7] Additionally, since Charter challenges can be difficult to bring forward, individual exemptions to suspended declarations may temper the disincentives of litigation.[8] The Court also noted that the government may show that there is a compelling reason to deny an exemption, such as if the exemption would undermine the purposes of the suspension, or if judicial economy would not be served by exempting a large class of claimants.[9]

Applying these principles to the case at hand, the Court noted that a suspended declaration of invalidity for Christopher’s Law is justified for public safety reasons[10]. Immediately declaring the law to be invalid could potentially irreversibly exempt many dangerous individuals from being listed on the sex offender registry, greatly restricting the effectiveness of new legislation.[11] However, an individual exemption is warranted for the claimant, since they have long had a spotless criminal record and do not pose a threat.

The Asper Center reached out to Professor Kent Roach to get his thoughts on the ON v G ruling. He comments that:

“The case will be a landmark one for the use of suspended declarations of invalidity and the Asper Centre appears to have made a real impact. The majority embraces the Centre’s arguments for a principled approach that does not depend on the three categories outlined in Schachter. They also accept the need for allowing exemptions in appropriate cases when the government has justified the use of a suspension. Even the dissenting judges also acknowledged that the Asper Centre had been helpful in arguing for the need for exemptions from suspensions to prevent irreparable harm. The judgment cites both my own scholarship but also remedial scholarship from Grant Hoole my former LLM student and Carolyn Moulard my current doctorate student.”

Indeed, the ON v G case will undoubtedly be solidified as a significant development in constitutional law. The dissenting justices criticized the majority’s broad and vague remedial principles, but it will be up to the lower courts to further build on the majority’s foundations. There is no denying that ON v G has pushed the law on constitutional remedies to be more fair and rational, ushering in a new era of remedies from the courts.

Jeffrey Wang is a 3L JD Candidate at the Faculty of Law, and a former Asper Centre Clinic student.

[1] Para 81.

[2] Para 94.

[3] Para 121.

[4] Para 133.

[5] Para 129.

[6] Para 131

[7] Para 148.

[8] Ibid.

[9] Paras 150-151.

[10] Para 175.

[11] Para 176.

Charter Section 52