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| John L. Hill |
At the time, a person with a commuted capital punishment sentence could go before the parole board generally in about 10 years. In 1967, a five-year moratorium on executions was imposed with exceptions for the killing of police or correctional officers. No one faced the death penalty during this period.
On July 14, 1976, a bill was passed abolishing the death penalty. It was a close vote, 130-124. In order to sway the vote in favour of abolition, a compromise was reached: A person convicted of first-degree murder must spend at least 25 years in prison before being eligible for parole. It was a politically devised solution.
Even with the compromise, abolition of capital punishment remained unpopular with roughly half the citizens polled wanting its reinstatement. To capitalize on the popular discontent in 2011, the Harper government passed legislation (adding s. 745.51 to the Code) allowing judges to impose consecutive periods of parole ineligibility for murders in which there had been multiple victims.
On June 14, 2014, Justin Christien Bourque shot and killed three RCMP officers and wounded two others. He pleaded guilty to three counts of first-degree murder and two counts of attempted murder two months later.
The chief justice of New Brunswick’s Court of Queen’s Bench considered the brutal circumstances and imposed a life sentence without parole eligibility for 25 years consecutive on each of the three murder convictions. Parole eligibility would be denied for 75 years. Bourque would be 99 years old, should he live so long, before trying to convince the Parole Board of Canada that he was a manageable risk in the community. Bourque accepted the sentence and did not appeal.
In 2017, Alexandre Bissonette went on a shooting rampage at a mosque in Quebec City. Upon conviction for multiple murders, the trial judge imposed life sentences for the murders and set parole ineligibility at 40 years (R. v. Bissonette 2019 QCCS 354).
Bissonette’s appeal to the Quebec Court of Appeal was successful and s. 745.51 that allowed consecutive periods of ineligibility was struck down, so all life sentences would be served concurrently (R. v. Bissonette 2020 QCCA 1585). Ultimately, the Supreme Court of Canada weighed in affirming the striking down of s. 745.51 as being in violation of the Charter guarantee protecting us from cruel and unusual treatment or punishment.
The chief justice reasoned the law provided safeguards in allowing the Parole Board of Canada to determine if protection of the public would allow a prisoner’s release. The court discounted the outrage of victims’ groups by noting, “This appeal is not about the value of each human life, but rather about the limits on the state’s power to punish offenders, which, in a society founded on the rule of law, must be exercised in a manner consistent with the Constitution.” (R. v. Bissonette 2022 SCC 23). Not only did the top court find s. 745.51 unconstitutional, it ordered that its provisions be struck down retroactively.
Enter New Brunswick lawyer David Lutz who took it upon himself to persuade Justin Bourque to appeal his 75 years of ineligibility. Lutz wanted to appeal, he told Law 360 Canada, because of his ethical obligation as a lawyer to ensure the laws of Canada are complied with. Lutz was successful in having an extension granted for Bourque to appeal and was successful in altering the consecutive portions of the sentence to be concurrent (R. v. Bourque 2023 NBCA 13).
The decisions of the Supreme Court of Canada, in theory, set out the interpretation of laws binding on all lower courts. In Bourque, both counsel for the Crown and for the defence agreed that his appeal must be allowed.
Yet, with all due admiration for the significant effort of Lutz, there remains an outstanding question.
How many more prisoners are serving consecutive parole ineligibility terms? Why should it be that we have to rely on the conscience of people like Lutz to ensure that right is done? Is it not incumbent on the minister of justice and the various provincial attorneys-general to search out and affirm that the decision of the Supreme Court is being followed? Or are we still in the position that opinion polls and politics rather than law is the driving factor?
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at johnlornehill@hotmail.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law 360Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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