R v Bissonnette: Uncompromising on Charter Values and Public Safety
Lauren Teixeira, 3L, Volume 81 Senior Editor
On January 29, 2017, Alexandre Bissonnette killed six people and injured five others after entering the Great Mosque of Quebec and opening fire. He was charged with six counts of first degree murder, to which he pled guilty, and was sentenced to serve consecutive parole ineligibility periods under s. 745.51 of the Criminal Code. This section, enacted in 2011, allowed judges to sentence offenders convicted of multiple murders (first degree, second degree, or a combination of both) for 25 years of parole ineligibility for each count of murder. Bissonnette argued that section 745.51 was unconstitutional because a parole ineligibility period of more than 25 years would render a sentence grossly disproportionate by eliminating any hope of release.
In May 2022, a unanimous decision by the Supreme Court of Canada (SCC) held that sentencing offenders to serve consecutive parole ineligibility periods is unconstitutional (R v Bissonnette, 2022 SCC 23 (CanLII) (Bissonnette)). Chief Justice Wagner, writing for the Court, found that s. 745.51 violated s. 12 of the Charter, and could not be saved under s. 1, because a parole ineligibility period that exceeds the life expectancy of an offender is inconsistent with human dignity. Section 12 protects the dignity of every individual and is violated where a punishment is deemed cruel and unusual. In paras 81-83, the Court reasoned that “the objective of rehabilitation is intimately linked to human dignity in that it reflects the conviction that all individuals carry within themselves the capacity to reform and re‑enter society.” Removing a realistic possibility of parole presupposes that the offender “is beyond redemption and lacks the moral autonomy needed for rehabilitation.” The provision was struck down and applied retroactively. The maximum parole ineligibility period is now 25 years in total for cases involving multiple murders.
The Bissonnette decision aligns well with the fundamental sentencing principles of the Canadian criminal justice system. There has always been a strong focus on the rehabilitation and reintegration of offenders, and the impugned legislation inherently ran counter to both principles. It did not allow offenders to work to change and rehabilitate themselves, and it precluded the possibility of a return to society.
Nevertheless, the decision caused an uproar from the public (who are fearful of multiple murderers being released), and from politicians (who have discussed invoking the notwithstanding clause). Both of these reactions are probably attributable to a misunderstanding of the effect of the decision, which will likely be negligible. As Chief Justice Wagner stated clearly in the penultimate paragraph of Bissonnette, “[e]ligibility for parole is not a right to parole” (para 147). An examination of the Parole Board of Canada’s decision-making process and the Canadian criminal justice system more broadly shows that Bissonnette will have little to no impact on release for multiple murderers.
Murder Sentences Unchanged after Bissonnette
First degree murder carries a mandatory minimum sentence of life imprisonment with parole ineligibility for 25 years, while second degree murder carries a sentence of life imprisonment with parole ineligibility to be set between 10 and 25 years. Between 2011 and Bissonnette, offenders convicted of two or more counts of murder could be sentenced to serve their parole ineligibility periods consecutively, one after the other, at the judge’s discretion. Now, the parole ineligibility periods are to be served concurrently.
While Bissonnette allows these offenders to come before the Parole Board of Canada (“Parole Board”) after 25 years, it must be remembered that these offenders are nevertheless still facing a life sentence. If parole is not granted, they will remain in prison for the rest of their life. If parole is granted, the life sentence does not disappear—the offender will be under supervision for the rest of their life and will return to prison for any breach of conditions.
In terms of impact, over 50 per cent of multiple-murder cases are not affected by the Bissonnette ruling. A 2021 study conducted by Isabel Grant, Crystal Choi and Debra Parkes in “The Meaning of Life: A Study of the Use of Parole Ineligibility for Murder Sentencing” showed that less than 45 per cent of eligible multiple-murder cases in Canada received consecutive parole ineligibility periods (p. 133). This means that in more cases than not, the court only imposed 25 years of parole ineligibility for multiple murderers. Therefore, this is not an entirely new phenomenon, as much of the public seems to believe. Discretion has been afforded to sentencing judges ever since s. 745.51 was enacted 11 years ago, and the practice of exercising that discretion to impose consecutive parole ineligibility periods has not been used consistently.
Parole Decisions and Public Safety
The Parole Board is an administrative tribunal that operates under the Corrections and Conditional Release Act, 1992 (“CCRA”) with exclusive authority to make parole decisions. When offenders become eligible for parole, they must make an application to the Parole Board if they wish to have a hearing. The John Howard Society summarized the Parole Board’s 2014-2015 Performance Monitoring Report, noting that it is not uncommon for offenders eligible for parole to waive their right to a hearing and hypothesizing that this is because they have been urged to waive the right. A recent example was profiled in a Globe & Mail article; David Ennis, who was convicted of six counts of murder, waived his right to a parole hearing upon becoming eligible to apply in 2016. When an offender waives their hearing, they have to wait five years for another review, pursuant to s. 123(5.01) of the CCRA.
The public has every right to be concerned about their safety when it comes to the release of some of the more dangerous offenders in our prisons. However, the worrisome effects of eliminating consecutive parole ineligibility periods may be combatted by the rigors of the parole process and its emphasis on public safety.
When deciding whether to grant an offender parole, the Parole Board conducts a risk assessment that is informed by several factors, set out in the Decision-Making Policy Manual for Board Members, including the offender’s criminal history, the type of offence, the reasons for the offence, victim statements, and release plans, among other considerations. In order to release an offender, the Board must satisfy themselves that:
(i) the offender will not present an undue risk to society before the end of the sentence, and
(ii) the release of the offender will contribute to the protection of society by facilitating the offender’s return to the community as a law-abiding citizen.
This risk assessment and the considerations that influence it are likely different in single-murder versus multiple-murder cases.
Consecutive Ineligibility Periods Are Unnecessary to Protect Public Safety
To begin this discussion with some context, it should first be noted how infrequently offenders are granted parole at their first hearing: according to statistics provided by the Parole Board, only approximately 30 per cent of offenders who apply for parole are actually granted it at their first hearing. This number decreases when looking at offenders, such as murderers, with life sentences. From 2014 to 2015, the Parole Board’s Performance Monitoring Report showed that only 20 per cent of offenders with life sentences applying for day parole for their first time were granted it (p. 28). The rest of this section will examine factors likely to be reviewed in a parole hearing for murder and distinguish how the Parole Board may view single-murder offenders from multiple-murder offenders in making their assessment.
At its core, the risk assessment focuses on the likelihood that the parolee will reoffend, which the Parole Board likely views as higher for those convicted of multiple murders than for those convicted of a single murder. Interestingly, a Correctional Service Canada study by Stewart et al. in “A Comprehensive Study of Recidivism Rates among Canadian Federal Offenders” showed that not only does homicide not generally have a significant risk of reoffending, but that it has one of the lowest rates of reoffending (p. 54). This low recidivism rate may contribute to decisions to let an offender convicted of murder out on parole before their statutory release date. However, given the factors that the Parole Board considers, the “low risk of reoffending” rationale is unlikely to apply to multiple murderers. Not only will someone convicted of multiple murders likely evince a higher risk of reoffending due to the severity of the offence, but they may also demonstrate a lesser chance of rehabilitation. Allely et al.’s study in 2014, “Neurodevelopmental and psychosocial risk factors in serial killers and mass murderers,” which analyzed serial killers and mass murderers, provided some preliminary evidence that a complicated interaction of biological, psychological, and sociological factors is often present within these individuals, including neurodevelopmental disorders, histories of abuse, psychological stressors and head injuries (p. 288, 290). One could imagine that the complexity of these situations is often more difficult to treat and rehabilitate, which the Parole Board is required to take into consideration.
Furthermore, the Parole Board will consider the type of offence within its risk assessment. It goes without saying that murder—particularly serial or mass murder—is a serious and violent offence that threatens public safety. The Parole Board will necessarily take that into account when the nature and the gravity of the offence is considered.
Another factor that the Parole Board may consider is the reason for the offence: whether this was a senseless act of killing or if there was a motivation. A 2021 study by Fowler et al. in “Examining differences between mass, multiple, and single-victim homicides to inform prevention: findings from the National Violent Death Reporting System” showed that victims of mass homicides were often strangers to the offender (p. 9). This means that when there is more than one victim, it is more likely that the offender senselessly victimized strangers. Prior to Bissonnette, when judges had the discretion to implement consecutive or concurrent parole ineligibility periods, the imposition of a consecutive one was seen as reflecting a more serious approach. Furthermore, the previously mentioned study conducted by Grant, Choi and Parkes showed that where murders involved victims who were strangers to the accused, 66 per cent were given a consecutive parole ineligibility period, compared to just 36 per cent of offenders whose victims were their intimate partners or acquaintances (p. 170). The above-noted study refers to this phenomenon as an “intimacy discount” or, in “Punishing femicide: Criminal justice responses to the killing of women over four decades” by Myrna Dawson, a “domestic discount.” A close relationship between the offender and victim tends to result in a lesser sentence, and vice versa (Dawson at p. 1010). Therefore, if the above literature is correct and the majority of victims of multiple-murders are strangers to the offender, the Parole Board will likely tend to view the offences more seriously, as judges have in the past, than cases of single-murder.
Additionally, victim impact statements play a role in Parole Board hearings and can work to decrease the possibility of parole being granted. While these statements are always taken into consideration, multiple statements from family and friends of the victims will likely have a deeper effect on the Board members. It demonstrates the gravity that the offence had, reinforcing that there was not just one victim and one family impacted—the sheer amount of people affected creates an added impact.
In sum, the Parole Board has not only the power, but also the responsibility, to make sure the public is safe when they make parole decisions. In Bissonnette, the Supreme Court implicitly expressed its confidence in the ability of the Parole Board to make such decisions, by explaining 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 (para 147).
If the Parole Board denies parole for a violent offender, it means that the offender is not eligible for another five years under section 123(5.01) of the CCRA. David Ennis’ case, mentioned previously, is a prime example of the Parole Board impeding release of a multiple murderer, demonstrating its ability to protect the public. Ennis became eligible for parole in 2021, after his waiver in 2016. The Parole Board denied his request.
Offenders convicted of multiple murders are, and will continue to be, treated differently than those convicted of single murders at parole hearings. While some multiple murderers are now eligible to apply for parole earlier than expected, the Parole Board has the legal capacity to be just as exacting as section 745.51 was by continually denying their parole where the circumstances warrant it. There is no indication that the Parole Board will fail to properly consider the gravity of multiple murder convictions.