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.

Asper Centre granted intervener status in 2 upcoming Ontario Court of Appeal cases and seeks standing in a third one

City of Toronto v. Attorney General of Ontario et al

On September 10, 2018, Ontario Superior Court Judge Edward Belobaba in City of Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151 declared that the province of Ontario had “substantially interfered” with the Charter section 2(b) freedom of expression rights of both the municipal ward election candidates and City of Toronto voters and struck down the province’s Bill 5 (which reduced the number of City of Toronto wards from 47 to 25) as unconstitutional.

The province appealed the decision to the Ontario Court of Appeal, which on September 19, 2018 stayed the order of the Superior Court pending the appeal, and thus allowed the election to proceed with the reduced number of wards.

The appeal of the lower court decision will be heard on June 10-11, 2019. The Asper Centre has been granted intervener status in this appeal, with its arguments focusing on the role that section 2(b) of the Charter plays “in ensuring a stable and protected election framework which is necessary to foster full engagement in the democratic process.”  Read the Asper Centre’s Intervener Factum here.

R v. Sharma

Ms. Sharma is a bi-racial Indigenous woman, whose ex-boyfriend used her as a drug mule and she was charged and convicted with importing just under 2kgs of cocaine. She would have been a suitable candidate for a conditional sentence but for the prohibition preventing drug importers from receiving a conditional sentence.

Based on a s.12 Charter argument advanced by Ms. Sharma that 2 years in jail would be grossly disproportionate and thus cruel and unusual punishment, the judge in R. v. Sharma, 2018 ONSC 1141, found that the mandatory minimum sentence of 2 years under the Act was unconstitutional and unjustified under section 1 of the Charter.  This aspect of the decision was not appealed.

Ms. Sharma also advanced a s.15 Charter argument that s.742.1(b) and (c) of the Criminal Code disproportionately affects Indigenous women as it removes the ability to serve their sentences as conditional sentences. The judge did not address (b) since he had already found the mandatory minimum to be unconstitutional. As for (c), the judge held that there is no reason to believe that the prohibition on conditional sentences, on the record before it, created an adverse effect such that it can qualify as a distinction based on Aboriginal status. This claim was dismissed.

Ultimately, the judge determined 18 months incarceration to be just, and reduced it by only 1 month given Gladue factors.

Ms. Sharma appealed her sentence to the Ontario Court of Appeal and the Asper Centre jointly with LEAF (the Women’s Legal Education and Action Fund) were granted intervener status in this appeal.

R v. Morris

Mr. Morris is a black male who was charged with multiple offences including possession of illegal firearms and assaulting a police officer. He was convicted only of the firearms offences.

Upon sentencing, the judge considered Mr. Morris’ personal social context, based on reports from psychologists and social scientists with an expertise on black racism in Canada. The Crown sought 4-4.5 years while the defence sought 1 (before Charter breaches were accounted for). In his decision the judge mentions that reports, such as the ones he was presented with, are not new to the law given Gladue reports for Indigenous offenders. He ultimately, in light of  Mr. Morris’s upbringing and social context (among the other mitigating and aggravating factors), sentenced him to 15 months, reduced to 12 months for Charter breaches.

The Crown appealed the sentence stating that the sentencing judge erred by imposing an unfit sentence, erred in his treatment of social context evidence and erred in his treatment of aggravating/mitigating factors.

The Asper Centre has applied for intervener status in this case. The motion is scheduled to be heard on June 13th.

Asper Centre Director Cheryl Milne to moderate a panel discussion in upcoming University of Toronto Faculty of Law Symposium: Reforming Criminal Justice and National Security

Hosted by U of T Faculty of Law and Supported by the Pierre Elliott Trudeau Foundation.  Co-sponsored by the Criminal Law Quarterly and the Counter-Terrorism Law and Policy Group, Global Justice Lab at the Munk School of Global Affairs

Tuesday May 30, 2017
University of Toronto Faculty of Law, 84 Queens Park, Solarium
10 am-5pm with reception to follow

This symposium is designed to produce a special double issue of the Criminal Law Quarterly that will reflect on the processes and challenges of reforming criminal justice and national security.

The aim is to examine specific contexts of pressing concerns that may be the subject of anticipated legislation including expected amendments to Ontario’s Police Services Act, expected amendments to the Criminal Code and expected amendments to the Anti-Terrorism Act, 2015 and related national security legislation.

The symposium is designed to bring academics, policy-makers and practitioners together for frank and open discussion of matters of common concern and pressing importance.

The symposium will end with a panel on general reflections about the process of criminal justice and national security reform.

The Symposium is free but registration is required. To register click on the registration form below.

See the Symposium agenda (PDF)

Registration form

For more information, contact michelle.rosenstock@utoronto.ca