Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. Bissonnette, 2022 SCC 23, May 27, 2022, the accused was convicted of multiple counts of first degree murder. Section 745.51 of the Criminal Code allows for the imposition of consecutive parole ineligibility periods in cases involving multiple murders. The accused argued that this provision contravenes section 12 of the Charter. The trial judge agreed, but imposed a period of forty years of parole eligibility.  The accused appealed. The Quebec Court of Appeal allowed the appeal, declared section 745.51 to be unconstitutional and set parole ineligibility at twenty-five years. The Crown appealed to the Supreme Court of Canada.

The appeal was dismissed and section 745.51 was “declared to be of no force or effect retroactively to the time it was enacted” (at paragraph 26).  The Supreme Court concluded that conclude that section 745.51 “is contrary to s. 12 of the Charter and is not saved under s. 1” (at paragraph 4).  The Court concluded as follows (at paragraphs 6 to 9):

Section 12  of the Charter   prohibits the state from imposing a punishment that is grossly disproportionate in relation to the situation of a particular offender and from having recourse to punishments that, by their very nature, are intrinsically incompatible with human dignity.

The provision challenged in this case allows the imposition of a sentence that falls into this latter category of punishments that are cruel and unusual by nature. All offenders subjected to stacked 25‑year ineligibility periods under s. 745.51  Cr. C. are doomed to be incarcerated for the rest of their lives without a realistic possibility of being granted parole. The impugned provision, taken to its extreme, authorizes a court to order an offender to serve an ineligibility period that exceeds the life expectancy of any human being, a sentence so absurd that it would bring the administration of justice into disrepute.

A sentence of imprisonment for life without a realistic possibility of parole is intrinsically incompatible with human dignity. Such a sentence is degrading insofar as it negates, in advance and irreversibly, the penological objective of rehabilitation. 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. This conclusion that a sentence of imprisonment for life without a realistic possibility of parole is incompatible with human dignity is not only reinforced by the effects that such a sentence may have on all offenders on whom it is imposed, but also finds support in international and comparative law.

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, which is the minimum ineligibility period resulting from the exercise of judicial discretion under the impugned provision in cases involving first degree murders.