The flag of the Supreme Court of Canada flies on the east flag pole in Ottawa, on Nov. 28, 2022.Sean Kilpatrick/The Canadian Press
A Supreme Court ruling that ended the punishment of life without parole for multiple murders has led to a greater emphasis on rehabilitation in sentencing for a wide range of offences, a Globe and Mail review of a legal database has found.
The court’s decision in May in the case of Alexandre Bissonnette, who killed six Muslim worshippers in Quebec City in 2017, said Canada’s commitment to rehabilitation sets it apart from many other countries.
Lower-court judges are taking that message to heart. The ruling is having an effect on sentencing well beyond multiple murders, the review shows.
The Bissonnette ruling was already far-reaching: The court said life without parole is one of those rare instances where a punishment is so extreme that it must be expunged from the justice system, retroactive to when it started in 2011. That meant more than 20 people were eligible for potential reductions.
In June, several lawyers for convicted multiple murderers told The Globe that their clients would apply for reductions. And that has happened.
John Paul Ostamas, who received a sentence of life with no parole eligibility for 75 years for beating three homeless men to death in Winnipeg in 2015, had his eligibility reduced in September to 25 years by the Manitoba Court of Appeal.
In Ontario, Adonay Zekarias, who had been ineligible for 45 years for the first-degree and second-degree murders of two women, had his eligibility reduced to 25 years in June. In Alberta, Joshua Frank, Jason Klaus, Edward Downey and Derek Saretzky had their waiting periods reduced. Mr. Saretzky, who killed three people, including a two-year-old girl, will be eligible at the age of 47 rather than 97.
But the Bissonnette effect goes well beyond such cases. For an array of crimes – everything from illegal gun possession to an assault on a police officer to second-degree murder – judges have taken up the court’s ruling in Bissonnette as an invitation to highlight the capacity for change and growth of convicted offenders.
Emblematic of these cases is one in which Ali Al-Shammari, who was convicted in 2007 of first-degree murder for his role in the near-decapitation of a taxi driver in Windsor, Ont., sought to use the Criminal Code’s “faint-hope” provision for an early chance at parole.
When Canada ended capital punishment in 1976, it set a mandatory sentence of life with no chance of full parole for 25 years for first-degree murder; second-degree murder was life with parole ineligibility set at 10 to 25 years. There was a faint-hope clause in which a convicted killer could apply to a judge to ask a jury for permission to go to the parole board after 15 years.
In 2011, the Conservative government of Stephen Harper killed the faint-hope clause for all murders committed from that point on. It also authorized judges to add together parole-eligibility periods, if they chose to do so, for multiple murders.
Ontario Superior Court Justice Renee Pomerance described the Bissonnette ruling as a “framework for the consideration of rehabilitative potential.” Quoting from Bissonnette, she said the objective of rehabilitation is “intimately linked to human dignity.”
“The faint-hope process – fundamentally premised, as it is, on the capacity of human beings to reform themselves – is an expression of the principle of human dignity,” she wrote in allowing Mr. Al-Shammari to apply to a jury for an early parole review. (Because he committed his crime before the 2011 scrapping of the faint-hope clause, it still applied.)
She was one of several judges who quoted the Bissonnette ruling on the country’s commitment to second chances: “Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world.”
Justice Wayne Gorman of the Newfoundland and Labrador Provincial Court was another judge to quote that line, in a case involving a 32-year-old man who pushed a police officer, causing him to fall down and strike his head. The man, known as W.J. in the ruling, has been attempting to address childhood trauma through counselling, a process judges should encourage, Justice Gorman wrote in July.
“In this way, his mental-health issues and his attempt to deal with them, play an important role in sentencing,” he wrote, adding a quote from Bissonnette to the effect that rehabilitation serves the protection of society.
In Ontario, Superior Court Justice Andras Schreck gave Troy Beharry a sentence of house arrest for having a loaded gun in his car, citing Bissonnette to assert that rehabilitation helps protect society.
The Bissonnette case reflects a swinging of the pendulum from a case just two years ago, called Friesen, in which the Supreme Court stressed tough sentences in sexual assaults against children, according to Daniel Brown, president of the Criminal Lawyers’ Association.
In Bissonnette, he said, the court was concerned that sending a message to society, known as general deterrence, might go too far. The court’s point was “that we can’t create unduly harsh sentences in the name of general deterrence because that would undermine other important sentencing principles, like rehabilitation and proportionality,” Mr. Brown said in an interview.
The Bissonnette effect is also showing up in the sentencing of those who commit one or more second-degree murders.
A British Columbia judge sentenced Ryan Grantham, a university student, to life with no chance of parole for 14 years, for shooting his mother dead. Citing the Bissonnette ruling, Justice Kathleen Ker of the B.C. Supreme Court said a sentence must not be “so crushing as to extinguish any prospect or hope of rehabilitation.” The Crown had sought 17 to 18 years.
In Alberta, Robert Leeming was convicted of the second-degree murder of a 25-year-old woman and her 22-month-old daughter. Under the 2011 law, he could have been made ineligible for parole for 10 to 25 years for each murder. But that penalty is no longer available.
Justice Keith Yamauchi of the Alberta Court of King’s Bench sentenced Mr. Leeming to life with no parole for 22 years. He said sending a message to society should not be taken too far: “Denunciation must be weighed carefully, as it could, on its own, be used to justify sentences of unlimited severity.” The quote is from Bissonnette.
Bissonnette also arose when a Canadian expatriate tortured in Mexico sued the Canadian government over its alleged complicity. In awarding Régent Boily $500,000, Federal Court Justice Sébastien Grammond said the prohibition of torture “flows from the obligation to respect the human dignity of all persons, ‘irrespective of their actions.’ ” The last four words in that quote are, again, from Bissonnette.
Sean Fine