Case Comments from a Christian Perspective: R. v. Bissonnette
Welcome to the first blog in a new series of blogs from ARPA Canada. These blogs will all be “case comments,” extended commentary on a particular court case. They seek to inform the reader: 1) what the court decided, 2) how the case in question moved Canadian law forward, and 3) what the socio-political consequences of the decision might be. Where our case comments will differ from the typical case comments released by legal firms is that they will focus on analyzing court decisions through a Christian worldview and spend time discussing how the decisions might impact religious communities and Christian believers in particular.
Late last month, May 27, 2022, the Supreme Court released its decision in R v Bissonnette. In 2017, Alexandre Bissonnette went on a shooting spree at a mosque in Quebec City. He killed six people and injured five others as they performed their evening prayers. At trial, Bissonnette pled guilty to six counts of first-degree murder and was automatically sentenced to life in prison, meaning he would be ineligible for a parole hearing for a minimum of 25 years for each murder.
Sentencing Those who Commit Multiple Murders: How It Works
Typically, Canadian criminal law specifies that when someone is guilty of multiple murders, they serve their parole ineligibility concurrently. For example, suppose someone committed three murders: two first-degree murders and one second-degree murder. After the trial, the judge gives this convict three life sentences. Each life sentence would come with a period where the convict would not be allowed to appear before a parole board. Let us assume the judge sentences the convict to life in prison with no chance of parole for 25 years on the first murder count, the same for the second murder count, and life in prison with no chance of parole for 10 years on the third murder count. In this scenario, our convict would likely not serve 60 years in prison before appearing in front of a parole board. Instead, he would serve each “parole ineligibility period” concurrently (at the same time), meaning he would be eligible for his first parole hearing after 25 years.
However, if the judge decides to apply Criminal Code section 745.51, the murderer’s sentence effectively changes. Section 745.51 sets aside the concurrency principle and makes the convict serve consecutive parole ineligibility periods. So, if the judge applies s. 745.51 in the case of our imaginary murderer, he will spend 60 years in jail before being eligible to appear before a parole board.
When the trial court arrived at the sentencing phase of Bissonnette’s trial, the crown prosecutor asked the trial judge to apply s. 745.51, which would give Bissonnette a parole ineligibility period of 150 years.In response, Bissonnette argued that s. 745.51 violated his right to “life, liberty, and security of security of the person” contrary to section 7 of the Charter, and his right “not to be subjected to cruel and unusual punishment” contrary to section 12 of the Charter. The trial judge agreed with Bissonnette, and the crown prosecutor appealed. A unanimous Supreme Court also agreed with Bissonnette and declared s. 745.51 unconstitutional because it constituted “cruel and unusual punishment” and struck down the provision.
A Legal Overview: What did the Supreme Court Actually Say?
R v Bissonnette is notable for its conclusion and for how the court came to its conclusion. Section 12 of the Charter is one simple sentence: “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” The court extrapolated on this, ruling that s. 12’s purpose is “to protect human dignity and ensure respect for the inherent worth of each individual.” (para. 7) After identifying s. 12’s purpose, the court decided that s. 745.51 is “intrinsically incompatible” with human dignity. According to the court, s. 745.51 subjects human beings to a “degrading” sentence. (paras. 7-8). Interestingly, the court held that the Charter necessitated striking down s. 745.51 and also necessitated drawing boundaries on how Parliament could craft sentencing provisions in the future. Chief Justice Wagner, who wrote the decision on behalf of the whole court, writes,
To ensure respect for the inherent dignity of every individual, s. 12 of the Charter requires that Parliament leave a door open for rehabilitation, even in cases where this objective is of secondary importance. In practical terms, this means 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.(para. 9)
It is important to note that the Supreme Court said that Parliament may be able to change the ineligibility period to something longer than 25 years. The Chief Justice spent considerable time comparing Canada’s sentences for first-degree murder to other nations that might be considered Canada’s “peers” – particularly in Western Europe. He observed that, in comparison, Canada’s sentences for murder are harsher. Still, he specifically mentioned (at para. 71) that this case does not decide the issue of whether it would be unconstitutional to impose an ineligibility period longer than 25 years.
Conceptually, the court drew a line back in time from parole ineligibility periods to the death penalty, noting that Canada adopted the 25-year parole ineligibility period as it was going through the process of abolishing the death penalty for non-military offences. According to the court, the abolition of the death penalty signified an evolution in what society finds acceptable. Punishments that society recoils at now were tolerable and even decent in the past.
The reason we no longer whip or hang people is not that we ran out of leather or rope. Rather, it is because those punishments are no longer congruent with Canadian values– Chief Justice Wagner, quoting Professor A.N. Doob at para. 65
The lynchpin on which all the court’s reasoning rests is their conception of what a human being is at his core. The court held that consecutive 25-year parole ineligibility periods are “degrading in nature in that it presupposes at the time of imposition, in a definitive and irreversible way, that the offender is beyond redemption and lacks the moral autonomy needed for rehabilitation.”
Chief Justice Wagner wrote that the idea that a human being is free, autonomous, and capable of change, is such a fundamental concept that it provides a foundation for our entire system of criminal law (at para 83). According to the Chief Justice, section 745.51 denies human beings’ moral autonomy because it almost always means that the person convicted will spend their entire life in jail, leaving no opportunity for rehabilitation. The Chief Justice quotes academic Jessica Henry with approval when she says that sentences that confine someone to prison until they die are “severe and degrading because, like capital sentences, they fail to recognize the intrinsic worth of the incarcerated person. The absence of all redemptive possibility denies human dignity” (para 82).
A Legal Critique
Is rehabilitation as fundamental as the court asserts?
My critique of the court’s ruling surrounds the reasoning discussed above, namely that the freedom and autonomy of the human being, as protected by s. 12, necessitates that Parliament must “leave a door open for rehabilitation, even where this objective is of secondary importance” (at paras. 9 and 85). The fault in this logic is that Parliament legislated “rehabilitation” as a criminal concept into being in 1996 by adding it to the list of “sentencing principles” found in the Criminal Code.
Since its very beginning, our Charter has been one that adapts to new circumstances. If Parliament does not legislate in a particular area of law, the Charter will leave Parliament alone. However, if Parliament does legislate, the Charter steps in by delineating how Parliament may legislate. But the Chief Justice did not say that s. 12 requires the door to be left open for rehabilitation because Parliament sought fit to include rehabilitation as a sentencing principle. No, he held that rehabilitating the offender is the basis for criminal law. If rehabilitation is the basis upon which all criminal law is based, how did Criminal law operate before 1996, when the word “rehabilitation” did not appear in the Criminal Code? What about the years before 1892 when Canada did not even have a Criminal Code but prosecuted people on the basis of traditional common law crimes?
The Chief Justice’s point may well be a good one from a conceptual point of view. Arguably, criminal law exists to mold the behaviour of Canadian citizens. As citizens, we expect the law to make people behave more lawfully and sociably. Yet, from a strictly legal point of view, it is difficult to see how rehabilitation could always have been the cornerstone of crime and punishment in Canada. Respectfully, I would suggest that the court took one of the six sentencing principles found in the Criminal Code—rehabilitation—and elevated it to a constitutional level. Section 718 of the Code—the part of the Code that lists the sentencing principles—begins like this:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
See how the Code’s description of its purpose is at odds with how Chief Justice Wagner describes the purpose of criminal law? Section 718 does not purport to identify the purpose of the entire criminal law system. Nevertheless, it does identify the purpose of sentencing – to protect society, ensure respect for the law, and impose just sanctions. Note that s. 718 does not require a trial judge to apply rehabilitation when sentencing. After stating the fundamental purpose of sentencing, s. 718 gives six objectives that a trial judge may use when crafting a sentence: denunciation, deterrence, separation of dangerous offenders, rehabilitation, restitution, promote a sense of responsibility. Rehabilitation is one of those six, but it is not the fundamental purpose of sentencing.
Additionally, s. 718 uses the language “one or more,” meaning that a trial judge could hand down a sentence with rehabilitation as its only object or choose one of the other five objectives listed in s. 718. Through his decision, the Chief Justice struck down s. 745.51 and fundamentally altered s. 718 when he wrote that sentences must always “leave the door open for rehabilitation.” However, the Chief Justice never addresses the logical consequence that basing a criminal justice system on rehabilitation has for s. 718 in his reasons.
The Court stretches the Fabric of s. 12
Finally, by grounding s. 12 in human dignity and extrapolating from that concept, the court stretches s. 12 farther than the text of s. 12 itself contemplates. On its face, s. 12 is a negative provision, it protects Canadian citizens against the government. Section 12’s negativity is evident from the way it is worded. It gives all citizens the right “not” to be subject to cruel and unusual punishment. What s. 12 does not purport to do is define the purpose of criminal law or sentencing. Instead, within the context of the criminal law and its purposes, s. 12 restrains the entire criminal apparatus from delivering cruel and unusual results.
Misconstrued Biblical Principles: Where God’s Justice Diverges from Man’s
Justice must be first-of-all a reflection of God
In response to the Court’s human dignity approach, the Crown Prosecutor appealing the case argued that applying multiple life sentences to someone convicted of murder is necessary because it reflects the value of each human life that was lost. However, the Chief Justice labelled this idea as “retributivist” and one that reflects a “thirst for vengeance” (at paras 93 and 95). To back these statements up, the Chief Justice writes (at para. 93) that “in a legal system based on respect for rights and freedoms, the ‘eye for an eye’ principle does not apply”. The “eye for an eye” principle, sometimes called the ius talionis or the lex talionis, is a reference to what God says in Exodus and Leviticus: “But if there is harm, then you shall pay life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe,” (Exodus 21:23-25) and “If anyone injures his neighbour, as he has done it shall be done to him, fracture for fracture, eye for eye, tooth for tooth; whatever injury he has given a person shall be given to him.” (Leviticus 24:19-20)
Unfortunately, the Chief Justice and the academic commentators he cites misunderstand what God was saying in those passages. God’s law for the people of Israel was not retributivist or vengeful. Rather, God’s law reflected his attributes, who he was, and still is. God first mentioned punishment for murder, not in Exodus or Leviticus, but in Genesis, where he says, “Whoever sheds the blood of man, by man shall his blood be shed; for in the image of God has God made man.” (Genesis 9:6)
The passage from Genesis should orient our conversations and attitudes around sentencing those convicted of multiple murders. The reason why we should want just punishment for murder is not in the first-place victims’ rights, protection of society, or even, as the lawyers for the Crown argued, a reflection of the value of human life. The reason why we should want a just sentence is that murder is an offence against God’s person. As a society, when we make criminal justice too human-centric, we end up having to pick between human beings. At its very core, the argument in R v Bissonnette was over whose dignity to focus on more – that of the victims or the convicted. Shifting our focus lets us escape the binary framework in which the Crown and the Chief Justice made their arguments.
Context challenges the Court’s conceptions of Biblical principles
On a historical level, the case also maligns the “eye for an eye” principle. The lex talionis set Israel apart from the surrounding nations, especially in terms of vengeance and violence. Take just two short examples from the famous Code of Hammurabi. Hammurabi’s code prescribes the public death and exposure for anyone breaking and entering. Furthermore, if a slave challenged the legal ownership his master had over him, but he was wrong, and his master did own the slave rightfully, the master was legally allowed to cut off the slave’s ear for bringing a frivolous legal challenge. The biblical scholars Klein, Blomberg, and Hubbard, put it well when they say:
We may rightly lay to rest, however, the older view that the law of retaliation (lex talionis)represented a “primitive” form of justice. On the contrary, it responds to a culture whose dominant legal principle was that of blood revenge—endless cycles of tit-for-tat violence (see Gen 4:23-24)—and marks “an effort to introduce the principle of proportionality into Israel’s law.”– Wiliam W. Klien et al, Introduction to Biblical Interpretation, 3rd ed
Clearly, God is unhappy with his creatures “thirsting for vengeance” as is evident elsewhere in the Bible (see, for example, Leviticus 19:18, Deuteronomy 32:35, Proverbs 20:22, 24:29, Romans 12:17-21, Hebrews 10:30). God designated certain towns as “cities of refuge” so that when someone killed another person accidentally, they might escape the “avenger of blood” in order that a full trial could take place. Given that God instituted strict evidentiary requirements for death penalty convictions, (Deut. 17:6) it is plausible to think that if Canada adopted God’s legal rules for the Israelites, we might have fewer murder convictions before even getting to the sentencing stage. Getting the testimony of two or three witnesses to every murder would make life quite difficult for Crown prosecutors.
In short, the Chief Justice seems to take a stereotypical view of biblical justice – that it is an outdated and backward way for a society to run. In a way, his view is probably not far from a view held today by many believers. It is the idea that there is an Old Testament God who is concerned with smiting and exacting revenge, and a New Testament God who is concerned with love and forgiveness. Some might even point, incorrectly, to Matthew 5:38-39 where Jesus says, “You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ But I say to you, Do not resist the one who is evil. But if anyone slaps you on the right cheek, turn to him the other also.” Biblical scholars and Reformers agree that Jesus was not contradicting the Old Testament since it is obvious that the Old Testament forbids taking personal vengeance on others. Instead, Jesus responded to those who used the quote to validate their vengeful acts (William Hendriksen & Simon Kistemaker’s New Testament Commentary).
We might also ask why God gave the maxim “life for life.” Unlike today, crimes in Israel were not punished with incarceration, but instead, Israelites were to make restitution for the wrongs they committed – to pay the victims back. When someone murders a fellow human being, God is clear that no amount of money can make restitution for human life, but still, for justice to be done, the murderer must pay as far as they are able (Numbers 35:31). The academics, cited by the Court, make a similar point about Alexandre Bissonnette and life sentences in general. They write:
It would be neither possible nor desirable to establish a true correspondence between a sentence and the assassination of six persons in a mosque at the hour of prayer. The sentence cannot be and cannot become as horrible as the crimes which were perpetrated. This is the reason why genocide, war crimes, and crimes against humanity are liable for a life sentence, which is revisited after the passing of a 25-year delay in order to determine if there is a place for a reduction.– Julie Desrosiers & Catherine Bernard, “L’emprisonnement à Perpétuité Sans Possibilité de Libération Conditionnelle: Une Peine Inconstitutionnelle”
Applying biblical principles to the quote above, we might agree that Bissonnette cannot truly repay for what he has done. However, the authors of the quote reach that conclusion and then, metaphorically, throw up their hands and go no further. The Christian should not take the same attitude but recognize that the simple inability to make full restitution cannot lay the conceptual foundation for a lesser sentence. Perhaps other reasons exist, but the nature of the crime should not be one of them.
Perhaps the question remains: so what? Does it matter that the Supreme Court misconstrues the biblical nature of justice? If they did have a more fulsome conception of what God commands when he says “eye for an eye” would that have changed the outcome of the case? As Christian citizens, we hold our governing authorities to a high standard. Augustine says that a private person serves the Lord by confessing his name and living in the right way, but this is not enough for our governing authorities. They should serve the Lord with their authority. Surely, serving the Lord means, at a very minimum, not misconceiving his commands.
For more on the issue of criminal sentencing, see the following resources:
- A critique of this case from another constitutional scholar (not from a Christian perspective),
- C.S. Lewis’ concerns with the idea of rehabilitation over justice, which seems to apply to this case,
- ARPA Canada’s policy report on Restorative Justice (an update will be released this summer).