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For a plain-language summary of the decision (provided by the Supreme Court of Canada), see below “Timestamps”.

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Timestamps:

I: Introduction: 0:00:15, paragraphs 1 to 9

II: Background and Judicial History

II(A): Facts: 0:04:32, paragraphs 10 to 12

II(B): Quebec Superior Court, 2019 QCCS 354 (Huot J.): 0:06:22, paragraphs 13 to 19

II(C): Quebec Court of Appeal, 2020 QCCA 1585 (Doyon, Gagnon and Bélanger JJ.A.): 0:10:47, paragraphs 20 to 24

III: Issues: 0:14:03, paragraphs 25 to 26

IV: Analysis:

IV(A): History of Section 745:51 Cr: C: 0:14:55, paragraphs 27 to 36

IV(B): The Parole System in Canada: 0:19:17, paragraphs 37 to 44

IV(C): Sentencing Objectives in Canadian Law: 0:23:14, paragraphs 45 to 53

IV(D): The Right Under Section 12 of the Charter Not to Be Subjected to Cruel and Unusual Punishment: 0:27:30, paragraphs 54 to 55

IV(D)(1): The Parole Ineligibility Period Constitutes Punishment: 0:28:05, paragraphs 56 to 58

IV(D)(2): The Two Prongs of the Right Not to Be Subjected to Cruel and Unusual Punishment: 0:29:17, paragraphs 59 to 70

IV(E): Does Section 745:51 Cr: C: Infringe Section 12 of the Charter?: 0:36:48, paragraphs 71 to 73

IV(E)(1): Scope of Section 745:51 Cr: C: 0:39:13, paragraphs 74 to 80

IV(E)(2): Imprisonment for Life Without a Realistic Possibility of Parole Constitutes Punishment That Is Cruel and Unusual by Nature: 0:43:01, paragraph 81

IV(E)(2)(a): Examination of the Nature of a Sentence of Imprisonment for Life Without a Realistic Possibility of Parole: 0:43:45, 82 to 95

IV(E)(2)(b): Effects of a Sentence of Imprisonment for Life Without a Realistic Possibility of Parole: 0:52:46, paragraphs 96 to 97

IV(E)(2)(c): Dignity and Imprisonment for Life Without the Possibility of Parole: International and Comparative Law Perspectives: 0:54:10, paragraphs 98 to 108

IV(E)(2)(d): Does the Judicial Discretion to Impose Consecutive Parole Ineligibility Periods Affect the Constitutionality of the Impugned Provision?: 1:03:13, paragraphs 109 to 111

IV(E)(2)(e): Can the Royal Prerogative of Mercy Save the Impugned Provision?: 1:05:15, paragraphs 112 to 119

IV(F): Is the Infringement of Section 12 of the Charter Justified Under Section 1 of the Charter?: 1:10:23, paragraphs 120 to 121

IV(G): Appropriate Remedy: 1:11:25, paragraphs 122 to 138

V: Conclusion: 1:21:48, paragraphs 139 to 148

Headnote provided by the Supreme Court of Canada:

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.

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.

Section 745.51 of the Criminal Code is contrary to s. 12 of the Charter and is not saved under s. 1. It must be declared to be of no force or effect immediately under s. 52(1) of the Constitution Act, 1982, and the declaration must strike down the impugned provision retroactively to the date it was enacted. In the case of multiple first degree murders, s. 745.51 authorizes the imposition of sentences of imprisonment that effectively deprive all offenders who receive such sentences of a realistic possibility of being granted parole before they die. Such sentences are degrading in nature and thus incompatible with human dignity, because they deny offenders any possibility of reintegration into society, which presupposes, definitively and irreversibly, that they lack the capacity to reform and re‑enter society. B’s total parole ineligibility period must therefore be 25 years, in accordance with the law as it existed prior to the enactment of s. 745.51.

Section 12 of the Charter guarantees the right not to be subjected to any cruel and unusual treatment or punishment. In essence, the purpose of s. 12 of the Charter is to protect human dignity and ensure respect for the inherent worth of each individual. The protection afforded by s. 12 has two prongs. Section 12 protects, first, against the imposition of a punishment that is so excessive as to be incompatible with human dignity and, second, against the imposition of a punishment that is intrinsically incompatible with human dignity. The first prong of the s. 12 guarantee relates to punishment whose effect is grossly disproportionate to what would have been appropriate. The second prong of the protection afforded by s. 12 concerns a narrow class of punishments that are cruel and usual by nature; these punishments will always be grossly disproportionate because they are intrinsically incompatible with human dignity.

A punishment is cruel and unusual by nature if the court is convinced that, having regard to its nature and effects, it could never be imposed in a manner consonant with human dignity in the Canadian criminal context. To determine whether a punishment is intrinsically incompatible with human dignity, the court must determine whether the punishment is, by its very nature, degrading or dehumanizing. The effects that the punishment may have on all offenders on whom it is imposed can also inform the court and provide support for its analysis of the nature of the punishment. A punishment that is cruel and unusual by nature must always be excluded from the arsenal of punishments available to the state. It follows that the mere possibility that a punishment that is cruel and unusual by nature may be imposed is enough to infringe s. 12 of the Charter.

Where both prongs of the protection of s. 12 are in issue in the same case, the analysis of the nature of the punishment must precede that of gross disproportionality. If the punishment that might be imposed is cruel and unusual by nature, and hence intrinsically incompatible with human dignity, it will be pointless to consider whether the punishment is grossly disproportionate in a given case, because it will by definition always be grossly disproportionate.

The parole ineligibility period constitutes punishment for the purposes of s. 12. State action is considered to be punishment for the purposes of s. 12 if it is a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and either it is imposed in furtherance of the purpose and principles of sentencing, or it has a significant impact on an offender’s liberty or security interests. The length of parole ineligibility is part of an offender’s punishment given that it is a consequence of conviction and that it has a significant impact on the offender’s interests in liberty and security of the person. It also furthers the objectives of denunciation and deterrence that underlie a sentence. The imposition of consecutive parole ineligibility periods authorized by s. 745.51 therefore constitutes punishment, the constitutionality of which must be determined under s. 12 of the Charter.

Section 745.51 effectively authorizes the imposition of a sentence of imprisonment for life without a realistic possibility of parole. This punishment is, by its very nature, intrinsically incompatible with human dignity. It is degrading in nature in that it presupposes at the time of its imposition that the offender is beyond redemption and lacks the moral autonomy needed for rehabilitation. Although Parliament has latitude to establish sentences whose severity expresses society’s condemnation of the offence committed, it may not prescribe a sentence that deprives every offender on whom it is imposed of any realistic possibility of parole from the outset. To ensure respect for human dignity, Parliament must leave a door open for rehabilitation, even in cases where this objective is of minimal importance. This objective is intimately linked to human dignity in that it conveys the conviction that every individual is capable of repenting and re‑entering society. The intent here is not to have the objective of rehabilitation prevail over all the others, but rather to preserve a certain place for it in a penal system based on respect for the inherent dignity of every individual, including the vilest of criminals. Where the offence of first degree murder is concerned, rehabilitation is already subordinate to the objectives of denunciation and deterrence, as can be seen from the severity of the mandatory minimum sentence for this offence.

The objectives of denunciation and deterrence are not better served by the imposition of excessive sentences. Beyond a certain threshold, these objectives lose all of their functional value, especially when the sentence far exceeds human life expectancy. The imposition of excessive sentences that fulfil no function does nothing more than bring the administration of justice into disrepute and undermine public confidence in the rationality and fairness of the criminal justice system. A punishment that can never be carried out is contrary to the fundamental values of Canadian society.

The effects of a sentence of imprisonment for life without a realistic possibility of parole support the conclusion that it is degrading in nature and thus intrinsically incompatible with human dignity. Offenders who have no realistic possibility of parole are deprived of any incentive to reform, and the psychological consequences flowing from this sentence are in some respects comparable to those experienced by inmates on death row, since only death will end their incarceration. For offenders who are sentenced to imprisonment for life without a realistic possibility of parole, the feeling of leading a monotonous, futile existence in isolation from their loved ones and from the outside world is very hard to tolerate, so much so that some prefer to put an end to their lives rather than die slowly and endure suffering that seems endless to them. Furthermore, in international and comparative law, a sentence that deprives offenders of any possibility of being released is generally considered to be incompatible with human dignity.

The royal prerogative of mercy, which gives Her Majesty the Queen an absolute discretion to grant a remission of sentence to any individual sentenced by a court, cannot save the impugned provision. The royal prerogative of mercy cannot be considered a true sentence review mechanism, because it is exercised only in exceptional circumstances. It is at best a release mechanism based on compassion and on the existence of humanitarian grounds, which means that individuals suffering the normal consequences of a properly imposed sentence are unlikely to obtain such a pardon. The existence of the royal prerogative of mercy therefore creates no realistic possibility of parole for offenders serving a sentence of imprisonment for life for which there is no other review mechanism.

The infringement of s. 12 of the Charter is not justified under s. 1. In order to justify an infringement of a Charter right, the state is required to show that the impugned law addresses a pressing and substantial objective and that the means chosen to achieve that objective are proportional to it. In this case, since no arguments were made concerning the justification for the impugned provision, the state did not discharge the onus resting on it.

The appropriate remedy in this case is a declaration that s. 745.51 is of no force or effect immediately pursuant to s. 52(1) of the Constitution Act, 1982, under which any law that is inconsistent with the provisions of the Constitution can be declared to be of no force or effect to the extent of the inconsistency. The technique of reading in is inappropriate in the circumstances. This technique allows a court to extend the reach of a statute so that it includes what was wrongly excluded from it. When a court applies this interpretive technique, it does so on the assumption that had Parliament been aware of the provision’s constitutional defect, it would likely have passed it with the alterations made by the court. In this case, however, the imposition of consecutive 25‑year ineligibility periods is directly related to Parliament’s objective in enacting s. 745.51, as shown by the words of the provision and the parliamentary debate. The words of s. 745.51 are clear as regards the length of the ineligibility periods that a court may make consecutive: for first degree murder, these periods must be 25 years under s. 745(a) of the Criminal Code. As well, the parliamentary debate clearly shows that Parliament’s intention was to authorize courts to impose consecutive ineligibility periods in blocks of 25 years. In fact, Parliament specifically rejected a proposed amendment that would have given courts a discretion to determine the total length of the parole ineligibility period. It is therefore impossible to conclude that Parliament would likely have passed the impugned provision with the modifications that would result from applying the technique of reading in as the trial judge did.

The declaration of invalidity must have immediate effect given the seriousness of the infringement of the right of every individual not to be subjected to cruel and unusual punishment. The declaration must also strike down the impugned provision retroactively to the date it was enacted, in view of the continuing nature of the infringement of the right guaranteed by s. 12 of the Charter. The applicable law is therefore the law that existed prior to that date. The 25‑year parole ineligibility periods imposed on B for each of the 6 counts of first degree murder must thus be served concurrently. As a result, B may not apply for parole until he has served a total ineligibility period of 25 years, in accordance with s. 745(a). The Parole Board of Canada remains the ultimate arbiter of whether B can be released on parole at the end of the ineligibility period.

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