Canada’s Longest Recent Sentences and the Questions and Controversies of Consecutive Life Sentences
On February 17, 2017, Justice Gates of the Alberta Court of Queen’s Bench handed down what is being referred to as the “harshest” sentence in recent Canadian history, tied with Christien Bourque’s sentence in 2014. This disposition of three consecutive life sentences, which will render the offender ineligible to apply for parole for 75 years, was made possible by 2011 legislation. The three longest sentences that have been ordered under this legislation highlight the problems with imposing this legislation and the concerns it might raise for Charter rights and sentencing principles.
The Legislative Context
Prior to the legislation, sentences for multiple murders were to be served concurrently. First degree murder would result in 25 years without parole, while second degree murder was punishable by a minimum of 10 and maximum of 25 years without parole, regardless of the number of victims. In 2011, the Harper government passed the Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act, SC 2011, c 5. The Act amended the Criminal Code, RSC 1985 c C-46, by adding s 745.51. This provision allows a judge to order that life sentences be served consecutively if justified by the “character of the offender, the natural of the offence and the circumstances surrounding its commission.”
The purpose of the bill was largely symbolic and to “send a strong message” to victims’ families. The law aimed to provide that the sentence affiliated with each victim and their impacted loved ones would receive its own ineligibility period to end “sentence discounts” that multiple murders would get before.
R v Garland
Douglas Garland was convicted on February 16 of three counts of first degree murder for the deaths of Calgary couple Alan and Cathy Liknes and their 5-year-old grandson, Nathan O’Brien, after the jury deliberated for less than two days. The trial was significant in the region and attracted a lot of public attention. The evidence at trial showed that Garland planned, in detail, the kidnapping, torture, death, and disposal of the victims. It was suggested to the jury that Nathan was incorporated into Garland’s plan when he happened to be at his grandparents’ home for a sleepover the night the couple was attacked. The Crown’s case was extensive and included 5 weeks of evidence.
The Court heard five victim impact statements and submissions from the Crown arguing that the sentences should be consecutive. The statements included viewpoints expressing that Garland was “evil” and that you “cannot rehabilitate evil”. The defence argued that the sentences should run concurrently because the offences were “one continuous act.” In any event, 57-year-old Garland would more than likely die in prison. Justice Gates, in handing down a sentence of 75 years without the possibility of parole, called the murders “cunning” and “cruel,” finding no mitigating circumstances present and a “very, very high” degree of blameworthiness.
R v Ostamas, 2016 MBQB 136
In 2016, John Paul Ostamas pled guilty to the three counts of second degree murder for the 2015 killings of three homeless men in Winnipeg: Myles Monias, Stony Bushie, and Donald Collins. The Court extended the parole ineligibility period to 25 from the minimum of 10 and ordered he serve them consecutively. This decision came out of a joint submission by counsel to raise the period of parole ineligibility and due to the circumstances and nature of the offences. Justice Toews of the Manitoba Court of Queen’s Bench highlighted a number of factual circumstances that led him to this decision. Ostamas did not know any of the homeless victims who were each “savagely” beaten to death in “cold blood.” Additionally, each victim was killed in a distinct incident. The judge did not refer to any mitigating factors.
R v Bourque 2014 NBQB 237
In 2014, Justin Christien Bourque pled guilty to the first degree murder of three members of the RCMP, and the attempted murder of two others. Bourque entered a subdivision in Moncton dressed in camouflage and armed with multiple weapons. When the RCMP attended the scene, he targeted them across the span of about 20 minutes. Bourque had been fascinated by firearms but had no record of abuse or a criminal record prior to the offences. The court noted how he thought poorly of the police, and hated all people in authority. The court also found his use of marijuana and his potential withdrawal, emotional turmoil, and sleep deprivation relevant. The court heard ten victim impact statements, and noted as well the impact it had on the community.
In this case, the Crown recommended that the first degree sentences run consecutively, but the defence argued that 75 years was unnecessary to denounce and deter the conduct and should impose 50 years instead. Justice Smith ultimately found that the principles of sentencing would be best achieved through a 75-year prison sentence. It was particularly meaningful to the court that this was one of the worst crimes in Canadian history by their standards and that the only mitigating factor was the guilty plea but that it was outweighed by all other circumstances.
The Principles of Sentencing
The principles and purposes of sentencing are housed in s 718 of the Code. The “fundamental purpose” provided in the Code is “to protect society and to contribute, along with crime prevention initiatives, respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.” A sentence must also promote one of the sentencing objectives enumerated in the Code: denunciation, deterrence, rehabilitation to provide reparations, and to promote a sense of responsibility. In addition to the purposes and objectives of sentencing, the Code provides additional principles. The “fundamental principle” is that the sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender.” The Code provides mitigating and aggravating circumstances and additional principles to take into account in s 718.2. Finally, additional factors to guide a sentencing judge are in s 718.21.
Parliament was clear about their intention in this specific provision: it is not about rehabilitation at all. This legislation was pushed forward as one of the Conservative government’s tough of crime measures and the government was unapologetic in this approach. The main purpose of the amendments was to allow for a punishment-oriented mechanism for sentences for specific offenders where rehabilitation is futile.
Parity in Sentencing?
Each of these three cases resulted in the same sentence. Each of the cases were heard in different courts, in different provinces, and each had different, though all horrible facts. Each court highlighted different concerns and factors. First, the Garland decision is perhaps the easiest case for a judge to impose the most severe sentence possible. There were virtually no mitigating factors that the judge could have drawn from, with the potential exception that Garland may have suffered from some sort of mental illness. The gravity of his crimes, and the public concern that was palpable around Calgary makes this a relatively uncontroversial sentence, as far as s 745.51 goes.
Second, the Bourque decision is similarly simple in terms of the severity of the circumstances. There were some mitigating factors such as the mental health circumstances of the accused at the time, but this is partly reflected in the fact that the judge did not impose each of the five sentences to run consecutively.
The Ostamas decision is more problematic. While all three are horrific cases, viewing Garland alongside Ostamas shows a potential lack of parity in the imposition of s 745.51 so far. The aggravating factors in Ostamas are important and certainly evident, however, the offender in Ostamas had vulnerabilities similar to his victims that the court failed to notice. Ostamas had a difficult childhood and was an Aboriginal person with mental illness. Ostamas also pled guilty and apologized at trial. Each of these highlights serious disparities between the circumstances of Garland versus Ostamas, for example. Additionally, Garland was found guilty of first degree murder, and Ostamas of second degree. Ostamas’ lawyer seemed to take no issue with the constitutionality of this sentence. Additionally, the court seemed to fail Ostamas as an Aboriginal offender, who should be, as much as appropriate, kept out of prison and to always take into account the Gladue principles. The proportionality here is very questionable. While the sentencing of Ostamas also speaks to the treatment of Aboriginal offenders by the justice system, including their own lawyers, a sentencing regime like s 745.51 can magnify those concerns.
The New Death Penalty?
Some scholars and advocates have expressed concern that s 745.51 is Canada moving towards the US trend of life without parole sentences, and even the death penalty, which Canada has long since done away with. When it comes to the fear of wrongful convictions, the consecutive life sentences model does not have the same level of finality, and there are mechanisms in the Code that can avail to the potentially wrongfully convicted even after all appeal options are exhausted. It can also be distinguished from the life without parole model in some states because consecutive life sentences will only be imposed in the most serious of cases where multiple life sentences were warranted in the first place. However, there are valid concerns with its abandonment of the goal of rehabilitation in some cases and how that reflects the death penalty model and that it potentially violates human dignity.
There is an argument to be had regarding whether this type of sentence can ever be considered proportionate. In the case of R v Husbands, 2015 CarswellOnt 7677, in 2015, Ewaschuk J of the Superior Court of Justice found that the accused had failed to prove that the section was null and void as unconstitutional based on Charter sections 12 and 7. Here, the court found that the measure is a discretionary one, and the sentencing judge will always be guided by the sentencing provisions of the Code such as the principle of totality so that the order is both fit and just. The accused cited European jurisprudence, which found in obiter that there can never be a case where an offender is not reviewed for parole after 25 years of imprisonment. Any longer, those courts found, would be the result in a “prisoner’s loss of hope of release” making it a form of inhuman and degrading punishment.
The SCJ found that the rejection of availability of a parole hearing after 25-years is not enough to prove a violation of s 12 of the Charter. This court rejected the accused’s argument that allowing an accused to go without a parole hearing for longer than 25 years results in a “degrading loss of hope of release which is both cruel and unusual” and is an “affront to human dignity” (para 10). Here, the judge relied on jurisprudence that found that ineligibility for parole until 25 years for first degree and for second degree did not contravene the Charter to stand for the presumption that Parliament has the power to provide the judiciary with discretionary power to impose even longer periods of parole ineligibility.
As a Superior Court decision, this is likely not the end of the conversation. On March 17, Douglas Garland filed an appeal of his sentence and conviction. Among other grounds, the defence argues that his sentence is “excessive and harsh.” While the facts of his case may not be the most persuasive, the outcome of this appeal will nonetheless be informative to the future of s 745.51.