While according paramount importance to the human rights of even prisoners, the Canada Supreme Court in an extremely learned, laudable, landmark and latest judgment titled R v. Bissonnette 2022 SCC 23 pronounced just recently on May 27, 2022 has been quite forthright in holding that a criminal law provision authorizing sentence of imprisonment for life without a realistic possibility of parole is unconstitutional. We must note here that this brilliant judgment was pronounced by Chief Justice Wagner and Judges comprising of Justices Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal. The Court unanimously observed that by stipulating that a court may impose consecutive 25-year parole ineligibility periods, the impugned provision authorizes the infliction of a degrading punishment that is incompatible with human dignity. The Court also held that every inmate must have a realistic possibility of applying for parole, at the very least earlier than the expiration of an ineligibility period of 50 years.

To start with, it is first and foremost stated in the introductory para that, On January 29, 2017, 46 people were gathered in the Great Mosque of Québec for evening prayer. B burst in and, armed with a semi-automatic rifle and a pistol, opened fire on the worshippers, causing the death of 6 people and seriously injuring 5 others. B pleaded guilty to the 12 charges laid against him, including 6 counts of first degree murder. An accused who is convicted of first degree murder will receive a minimum sentence of imprisonment for life and will be eligible for parole only after serving an ineligibility period of 25 years. B therefore received that sentence automatically. The Crown also asked that s. 745.51 of the Criminal Code be applied. This provision authorizes a court to order that the periods without eligibility for parole for each murder conviction be served consecutively rather than concurrently. In the context of first degree murders, the application of this provision allows a court to add up parole ineligibility periods of 25 years for each murder.

As it turned out, the Court then points out that:
B challenged the constitutionality of s. 745.51. The trial judge held that this provision infringed the right not to be subjected to any cruel and unusual treatment or punishment and the right to liberty and security of the person guaranteed to B by s. 12 and s. 7 of the Charter, respectively, and that the provision could not be saved under s. 1. To remedy the unconstitutionality of the provision, the trial judge applied the technique of reading in and interpreted s. 745.51 as granting courts a discretion to choose the length of the additional ineligibility period to impose on an offender. He ordered that B serve a total ineligibility period of 40 years before being able to apply for parole. The Court of Appeal allowed B’s appeal and declared s. 745.51 invalid and unconstitutional on the basis that it was contrary to ss. 12 and 7 of the Charter. It noted that the declaration of unconstitutionality was to take effect immediately. It found that reading in was inappropriate, and it therefore struck down the unconstitutional provision. It accordingly ordered that B serve a 25-year parole ineligibility period on each count before being able to apply for parole and that these periods be served concurrently. Held: The appeal should be dismissed.

While dwelling on the English version of the judgment of the Court delivered by the Chief Justice, it is first and foremost stated in para 1 that:
The crimes committed by the respondent in the Great Mosque of Québec on the fateful day of January 29, 2017 were of unspeakable horror and left deep and agonizing scars in the heart of the Muslim community and of Canadian society as a whole. We cannot help but feel sympathy for the victims and their loved ones for their irreparable losses and their indescribable pain.

More specifically, the Court then states in para 2 that:
It is in the context of those crimes that this Court must rule on the constitutional limits on the state’s power to punish offenders. The appeal requires us to weigh fundamental values of our society enshrined in the Canadian Charter of Rights and Freedoms and to reaffirm our commitment to upholding the rights it guarantees to every individual, including the vilest of criminals.

Most commendably, the Bench then minces no words to hold in para 139 of this notable judgment that:
In summary, by stipulating that a court may impose consecutive 25-year parole ineligibility periods, the impugned provision authorizes the infliction of a degrading punishment that is incompatible with human dignity. Under this provision, a court has the power to sentence an offender to imprisonment for life without a realistic possibility of parole for 50, 75 or even 150 years. In other words, in the context of multiple first degree murders, all offenders to whom this provision applies are doomed to spend the rest of their lives behind bars, and the sentences of some offenders may even exceed human life expectancy.

Most remarkably, the Court then also forthrightly holds in para 140 that:
Not only do such punishments bring the administration of justice into disrepute, but they are cruel and unusual by nature and thus contrary to s. 12 of the Charter. They are intrinsically incompatible with human dignity because of their degrading nature, as they deny offenders any moral autonomy by depriving them, in advance and definitively, of any possibility of reintegration into society. Sentences of imprisonment for life without a realistic possibility of parole may also have devastating effects on offenders, who are left with no incentive to rehabilitate themselves and whose incarceration will end only upon their death.

Interestingly enough, the Court then unequivocally holds in para 141 that, Parliament may not prescribe a sentence that negates the objective of rehabilitation in advance, and irreversibly, for all offenders. This penological objective is intimately linked to human dignity in that it reflects the conviction that every individual has the capacity to reform and re-enter society. For the objective of rehabilitation to be meaningful, every inmate must have a realistic possibility of applying for parole, at the very least earlier than the expiration of the minimum ineligibility period of 50 years stipulated in the impugned provision for cases involving first degree murders. What is at stake is our commitment, as a society, to respect human dignity and the inherent worth of every individual, however appalling the individual’s crimes may be.

Quite clearly, the Bench then envisages in para 142 that:
Let me be very clear. The conclusion that imposing consecutive 25-year parole ineligibility periods is unconstitutional must not be seen as devaluing the life of each innocent victim. Everyone would agree that multiple murders are inherently despicable acts and are the most serious of crimes, with consequences that last forever. 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.

As a corollary, the Bench then holds in para 143 that:
In the circumstances, this Court has no choice but to declare s. 745.51 Cr. C. invalid immediately. This declaration strikes down the provision retroactively to its enactment in 2011. The applicable law is therefore the law that existed prior to that date. This means that the respondent must receive a sentence of imprisonment for life without eligibility for parole for a total period of 25 years.

Most forthrightly, the Bench hastens to add in para 144 that:
The respondent committed horrendous crimes that damaged the very fabric of our society. Fueled by hatred, he took the lives of six innocent victims and caused serious, even permanent, physical and psychological injuries to the survivors of the killings. He left not only families devastated but a whole community — the Muslim community in Québec and throughout Canada — in a state of anguish and pain, with many of its members still fearful for their safety today. And he left Canadians at large feeling deeply saddened and outraged in the wake of his heinous crimes that undermined the very foundations on which our society rests.

Lamentably, the Bench then adds in para 145 that:
Sadly, this case is but one example of the crimes committed by multiple murderers that shock our collective conscience. Other examples include murders committed by sexual predators who place no value on the lives of their victims and who leave entire communities in a state of fear and terror until they are apprehended. So, too, is the case of terrorists who seek to destroy Canada’s political order without regard to the devastation and loss of life that may result from their crimes.

On a calmer note, the Court then mandates in para 146 that:
The horror of the crimes, however, does not negate the basic proposition that all human beings carry within them a capacity for rehabilitation and that, accordingly, punishments which fail to account for this human quality will offend the principles that underlie s. 12 of the Charter.

Most significantly, the Court then unambiguously holds in para 147 that:
All multiple murderers receive a minimum sentence of life in prison. In the current state of the law, they are eligible for parole after 25 years in the case of first degree murders. Eligibility for parole is not a right to parole. Experience has shown that the Board generally proceeds with care and caution before making a decision as important as releasing multiple murderers back into society. The protection of the public is the paramount consideration in the Board’s decision-making process, but the Board also takes into account other factors such as the gravity of the offence and its impact on victims. It, perhaps, provides a measure of solace to know that compelling evidence of rehabilitation will be demanded before the perpetrators of such crimes will be released on parole.

Finally, the Court then aptly concludes by holding in para 148 that:
For all these reasons, the appeal is dismissed.

In sum, the Supreme Court of Canada has been forthright enough while dismissing the appeal filed against this judgment of the Court of Appeals in conceding that life imprisonment without realistic possibility of parole is unconstitutional. It has ascribed the valid reasons also as we have elaborately discussed hereinabove. No denying it! It has also made it indisputably clear leaving no air of doubt whatsoever that the conclusion that imposing consecutive 25 year parole ineligibility period is unconstitutional must not be seen as devaluing the life of each innocent victim.

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi (Retd), A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.