Quebec City mosque killer will now be eligible for parole after 25 years. Did the court get it right?

Sentencing someone, for example, to 150 years in prison is 'absurd.' Such figures might give some people a sense of satisfaction, but they are deceptive nonetheless

The Quebec City mosque spree killer will be eligible to apply for parole after 25 years in prison, 15 years earlier than his trial judge ordered, after the Quebec Court of Appeal struck down the practice of “stacking” sentences for murder.

Alexandre Bissonnette, who was 27 at the time of the crime in 2017, pleaded guilty to six counts of first degree murder and six of attempted murder, and got one of the harshest criminal penalties since the end of capital punishment: a life sentence with no parole eligibility for 40 years.

It was a grotesque massacre of people at evening worship, an act of racist hatred prompted by the federal government’s recent pledge to accept more refugees, and conducted by a young man in thrall to far-right online material.

Six people died: Mamadou Tanou Barry, 42, Abdelkrim Hassane, 41, Khaled Belkacemi, 60, Aboubaker Thabti, 44, Azzeddine Soufiane, 57, and Ibrahima Barry, 39. Many others were injured, and a nation horrified.

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“This judgment is not about the horror of Alexandre Bissonnette’s actions on January 29, 2017, nor even about the impact of his crimes on an entire community and on society in general,” three judges of the Quebec Court of Appeal wrote in the unanimous ruling. “It is, rather, first and foremost, about the constitutionality of a provision of the Criminal Code.”

The provision in question is a Stephen Harper-era change to the Criminal Code that allows judges to order consecutive periods of parole ineligibility for first degree murder. So someone who killed four people could be sentenced to 100 years before being allowed to apply for parole.

When it was passed in 2011, the effect was to increase the minimum prison term for murder beyond the 25 years set in place after Canada abolished the death penalty in 1976. In cases of multiple murders, judges could order that parole ineligibility periods be consecutive, rather than concurrent, in 25-year increments. It became known as “stacking” periods of parole ineligibility.

For the first time, Canadian courts were considering prison terms that far exceed the normal human lifespan. According to the new ruling, this is part of what makes the law unconstitutional, as a violation of the Charter right to be free of cruel and unusual punishment.

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Discretion is not the issue. Judges might not be required to impose a cruel and unusual punishment, the appeal court noted, but the law is unconstitutional simply because it allows them to.

Sentencing someone, for example, to 150 years in prison is “absurd.” Such figures might give some people a sense of satisfaction, but they are deceptive nonetheless. A court must not make an order that can never be carried out,” the ruling reads.

“Such senselessness cannot stand and is, in and of itself, cruel and unusual punishment that is degrading because of its absurdity. It is a sentence that will always be grossly disproportionate. It contemplates a possibility that will never be able to come to fruition.”

In a police interview, Quebec mosque shooter Alexandre Bissonnette recounted the attack, and told the SQ that terrorist attacks around the world had been on his mind for months before the shooting. Photo by Court files

There are several cases of stacked sentences for murderers of fewer victims. For example, the law was used for Douglas Garland of Alberta, who got 75 years for killing an elderly couple and their young grandson. Justin Bourque of New Brunswick also got 75 years for killing three police officers. Dellen Millard of Ontario got 75 years for killing his father, a former girlfriend, and a stranger.

It has also been rejected by judges, for example in the case of Toronto serial killer Bruce McArthur, whose life sentence for eight murders came with a simple 25-year parole ineligibility period. His trial judge said his guilty pleas and advanced age meant that even doubling his ineligibility to 50 years was not justified. He can apply for parole when he is 91.

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Even then, parole is never a sure thing, and first-time applicants usually fail, then have to wait another two years. Paul Bernardo, for example, applied for parole in 2018, after he had served his minimum 25 years. He made his case in a public hearing, and was swiftly refused.

At Bissonnette’s sentencing in 2019, the 40-year period was a compromise. The prosecution wanted all six periods to run consecutively, making it 150 years. The defence wanted the normal life sentence with no parole eligibility for 25 years.

Police survey the scene of a shooting at a Quebec City mosque on Sunday, Jan. 29, 2017. Photo by Francis Vachon/The Canadian Press/File

The trial judge decided that the sentences for first five counts would run concurrently, but 15 years should be added for the sixth count. This was legally suspect and criticized from the start, because the law seems only to allow the judge to sentence in 25 year increments: 50, 75, 100.

This new appeal ruling overturns that sentencing decision, in part because the trial judge was “rewriting the legislative provision, rather than simply striking it down.”

It also strikes down the stacking provision as unconstitutional. The ruling is not binding on other provinces, although the issue may yet be addressed by the Supreme Court.

The trial judge should have simply struck down the stacking law, not write himself a new one, the Quebec Court of Appeal found. Instead, his ruling “intruded on the legislative sphere,” the judgment says. By analyzing both the letter of the law and quoting extensively from the parliamentary debate around it, the three judges of the Court of Appeal found that “Parliament’s choice to limit the (stacking) exercise to fixed periods of 25 years was deliberate and at the very heart of the provision.”

This new ruling applies the sentencing law as it would have been without the stacking provision, meaning Bissonnette’s six 25-year periods without parole eligibility are now running concurrently, and he can apply for parole after serving 25 years.

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