Appeal Watch: Consecutive Ineligible Parole Periods Deemed Unconstitutional in Attorney General of Quebec, et al. v. Alexandre Bissonnette

*TRIGGER WARNING: This post has descriptions of violence that may be triggering to some readers*

Since the abolition of the death penalty, the highest sentence a judge can prescribe to a criminal offender is a life sentence with a 25-year parole ineligibility period. Where there are multiple murder victims, under s. 745.51 of the Criminal Code RSC 1985, c C-46 (“Code”), the judge 

…may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and the recommendation, if any, made pursuant to section 745.21, by order, decide that the periods without eligibility for parole for each murder conviction are to be served consecutively [emphasis added].

This provision could create situations where an offender responsible for multiple murders could be imprisoned without parole for the remainder of their life. In Attorney General of Quebec, et al. v. Alexandre Bissonnette 2020 QCCA 1585 [Bissonnette II], the accused Alexandre Bissonnette was faced with that very dilemma. Thus, the lawyer for the infamous Quebec City Mosque shooter challenged the constitutionality of the provision, alleging that it violated the accused’s rights protected under ss. 12 and 7 of the Canadian Charter of Rights and Freedoms Schedule B to the Canada Act 1982 (UK), 1982, c 11 (“Charter”). 

The case is waiting to be heard by the Supreme Court of Canada (“SCC”) so, as of now, the provision has been deemed unconstitutional by both the Quebec Superior Court (R v Bissonnette, 2019 QCCS 354 [Bissonnette I]) and the Quebec Court of Appeal (“Court”). While both courts reached the same conclusion, they diverged in determining how the provision ought to be treated: the trial judge read into the provision and narrowed its scope and the appellate court struck it down completely. It is unlikely that the SCC would reverse the unconstitutionality finding of s. 745.21, however, it is difficult to anticipate their approach on how to treat it given the broad repercussions that may have on statutory interpretation.


On the evening of January 29, 2017, the accused, intoxicated and armed with two firearms, headed to the Great Mosque in Quebec City where approximately forty worshippers were present at evening prayers. Shortly after the evening prayers ended, the accused opened fire at eleven worshippers in a span of two and a half minutes, killing six and injuring five [Bissonnette I, para 31]. He then fled the scene and called the police, confessing to his crime and informing the operator that he was planning to commit suicide [Bissonnette I, para 37]. The accused was arrested shortly thereafter. 

In the days leading up to the shooting, the accused browsed online stories of mass murders and shootings, such as the San Bernadino shooting and the Charleston church shooting, as well as reports on jihadi attacks [Bissonnette I, paras 11-12]. This was submitted as evidence for premeditation and enabled the Crown to lay six charges of first-degree murder under s. 235 of the Code. The accused faced six additional charges of attempted murder with a restricted firearm under s. 239(1) of the Code, both for the injuries caused against five individuals and the shots fired at several others at the scene [para 46]. The accused pled guilty to all the charges and was deemed fit to stand trial. [Bissonnette I, para 49 and 52]. 

The Crown sought a sentence of six consecutive parole ineligibility periods of 25-years each, pursuant to s. 745.51 [Bissonnette I, para 458]. In response, the defence challenged the constitutionality of the provision, asserting that it violated the accused’s s. 12 right to not receive cruel and unusual punishment and his s. 7 right to liberty and security [Bissonnette I, paras 289-290].

Trial Court Reads Into s. 745.51

At trial, the judge conducted a standard sentencing analysis by considering the aggravating and mitigating factors of the accused’s crime. He found that: while the crime was motivated by racism, it could not be deemed terrorism; the accused’s mental state was a significant mitigating factor; and the accused showed some prospect of rehabilitation [Bissonnette I, paras 551, 596, 603]. He also reviewed the criteria required for applying s. 745.51—the character of the offender, the nature of the offence and the circumstances surrounding its commission.  In executing the s. 745.51 analysis, the trial judge further considered how sentencing principles ought to be applied in the present case and concluded that the accused “must be sentenced to imprisonment for life without eligibility for parole for a period exceeding 25 years” [Bissonnette I, para 770].

Section 12 Analysis

The trial judge agreed with the accused that the requirement to serve consecutive ineligibility periods in multiples of 25-years was an unconstitutional breach of s. 12 of the Charter. In determining that there was a breach, he applied the test from R v Nur 2015 SCC 15. This test first requires the court to determine ‘what constitutes a proportionate sentence for the offence’ and then to evaluate whether ‘the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence” [Bissonnette I, para 802]. The trial judge acknowledged that while s. 745.51 did not impose a mandatory minimum sentence—or was concerned with minimum sentencing at all—the test could still be applied to examine the constitutionality of the provision. Thus, the judge concluded that the imposition of two consecutive ineligibility periods of 25-years would violate the accused’s s. 12 rights as the sentences would be so “grossly disproportionate and totally incompatible with human dignity” that it could not be proportional to the offence [Bissonnette I, para 980].

Section 7 Analysis

The trial judge then turned to s. 7 of the Charter which considers whether the provision is in violation of the principles of justice; that is, whether the provision is arbitrary, overbroad, or grossly disproportionate [para 1018]. The judge found that s. 745.21 was overbroad and grossly disproportionate: the scope of the provision was broader than necessary to achieve its objectives. Interestingly, the accused argued that the provision violated two additional principles of fundamental justice: the protection of hope and the protection of human dignity [paras 1056 and 1071]. While the court dismissed the argument that the former was a principle of fundamental justice, the court affirmed the latter as one and found that the provision violated the principle [paras 1102 and 1104]. 

Provision not Saved Under Section 1 

The court concluded that s. 12 and s. 7 violations could not be saved under s. 1, especially because the provision was not drafted in a minimally impairing manner and was therefore disproportionate [para 1150]. This was based upon reviewing Parliamentary debates which revealed that in drafting the Bill, opposition MPs had proposed an amendment for the enabling of five or ten-year parole ineligibility periods beyond the first ineligibility period of 25-years [para 1139]. Despite hearing alternative recommendations for limiting the provision, Parliament opted to pass Bill C-48 in its present form [para 1145]. 

Thus, the trial judge chose to read into the provision using the powers provided in s. 52 of the Constitution. [para 1162]. This, however, was only possible because the trial judge found that the constitutional incompatibility was not at the core of the provision [para 1171-2].  By reading in, the trial judge enabled the addition of consecutive terms of parole ineligibility with flexible lengths, as opposed to the current reading which restricted terms to be fixed to 25-years [para 1195].

Court of Appeal Strikes Down the Provision

The Court unanimously agreed with the trial judge in finding that s. 745.51 violated ss 12 and 7 of the Charter but differed in their analysis.

The Court began by stating that for a sentence to be considered cruel and unusual punishment, it must be “‘so excessive as to outrage standards of decency’ and ‘abhorrent or intolerable’ to society” [Bissonnette II, para 74 citing R v Boudreault, 2018 SCC 58, para 45]. The sentence needs to either be grossly disproportionate weighed against the offence, or be of an unacceptable nature [Bissonnette II, para 77]. In other words, the Court dismissed the approach of the trial judge in applying the Nur test and opted to assess the s. 12 issue based on two of the conditions required to make a sentence cruel and unusual [Bissonnette II, para 83]. Using this approach, the Court concluded that the possibility of imposing periods by 25-year “leaps” in parole eligibility would either be grossly disproportionate or unacceptable by nature [Bissonnette II, para 113].

As for s. 7, the Court largely agreed with the trial judge, apart from the holding that the protection of human dignity is a principle of fundamental justice. They stated that, “[a]lthough human dignity constitutes a fundamental notion in Canadian law and finds expression in almost all Charter rights”, whether it was a principle of fundamental justice would remain up for debate [Bissonnette II, para 151].

Upon finding the provision unconstitutional on both grounds, the Court then addressed the appropriateness of the trial judge’s reading-in of the provision as the appropriate remedy. The Court stated that reading in as a remedy could respect the roles and wishes of the legislature, but only if the constitutional incompatibility did not go towards the heart of the provision [Bissonnette II, para 168]. However, it was held that Parliament deliberately choosing to keep the 25-year increments indicated its centrality in achieving the provision’s objective [Bissonnette II, para 184]. As altering this provision would impinge on the legislature’s powers, the provision was instead immediately struck down [Bissonnette II para 186].

Contemplating the SCC’s Position

There are three issues that the SCC would likely consider reviewing from this case: the appropriate test to handle s. 12; whether the protection of human dignity could be a principle of fundamental justice; and whether the 25-year increments of parole ineligibility was indeed at the heart of the provision.

Regarding the first issue, the SCC could choose to adopt the appellate court’s test or create a new test that could be applied when determining what a cruel and unusual ineligible parole period would be. It is unlikely that the SCC would expand the Nur test to apply in this case because it was intended to only be used on provisions concerning mandatory minimum sentencing. 

It was noted by both Quebec courts that the protection of human dignity has neither been recognized nor dismissed as a principle of fundamental justice. A decision by the SCC leading to its inclusion would be an interesting legal development that would spur a wave of s. 7 Charter challenges.

However, due to the broad-sweeping ramifications the introduction of a new principle of fundamental justice would bring, the SCC is more likely to engage in the third issue concerning an appropriate remedy to the unconstitutional Criminal Code provision. The Court of Appeal had decided that the 25-year “leaps” were central to s. 745.51 because of the remarks made by the Minister of Justice during Parliamentary proceedings at the time. Simultaneously, there were recommendations and amendments proposed by the Opposition suggesting a more flexible discretion of judges, which led the trial judge to believe the 25-year leaps were not at the crux of the provision. The SCC could lean in either way and perhaps provide more guidance on how to determine whether an unconstitutional incompatibility is “central” to a provision.

One final note from the author: I can’t help but wonder whether the constitutionality issue of s. 745.51 was only engaged with at this scale because of the facts of the case. Would the courts have seriously dealt with this issue if the accused was a racialized person with a criminal record, and the victims were predominantly white? While the author is mindful that the court’s determination of this issue would have downstream effects for accused persons of all backgrounds, I’m of the opinion that it only caught the attention of the courts because the accused was supposedly inconspicuous.

Grace Shin

Grace is a third-year law student at Osgoode Hall Law School interested in issues dealing with administrative law, Aboriginal law, and employment law. Prior to law school, Grace obtained a B.Sc in Psychology from McGill University, where she conducted research on human attention and attraction. Her science background has helped Grace develop an eye for detail and a critical approach in analyzing Supreme Court cases. When she's not thinking about sociolegal theory, Grace is probably playing with her cat, practicing yoga, or trying out new recipes!

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