The grounds of the Supreme Court of Canada in Ottawa on April 6.Spencer Colby/The Globe and Mail
Several men convicted of multiple murders are pressing claims for early chances at parole, after the Supreme Court struck down Canada’s life-without-parole law, retroactive to the legislation’s 2011 enactment.
This is only the second time the court has declared a punishment it found unconstitutional to be open to retroactive legal challenges. Those challenges are possible even when an offender has exhausted all their appeals and their case was considered closed. Even convicted killers who accepted their sentences without fighting them, or who made plea bargains, are among those seeking shorter waits for parole hearings.
John Paul Ostamas is involved in one such case. He was sentenced to life in prison with no parole eligibility for 75 years, after he beat and stomped to death three homeless men in Winnipeg at age 39. Another such case is Travis Baumgartner’s. At age 21 he shot dead, from close range, three fellow armoured car drivers in Edmonton, and received 40 years parole ineligibility in a plea bargain.
In all, 23 people who committed multiple murders – of their own parents, intimate partners, small children and, in one case, RCMP officers – are eligible for potential reductions in their waiting periods for parole hearings.
First-degree murder brings an automatic sentence of life in prison with a first chance at full parole after 25 years. The life-without-parole law, established by Stephen Harper’s Conservative government, created new rules for multiple murders. It allowed judges to add together the parole ineligibility periods – 25 years for each first-degree murder, or 10 to 25 for each second-degree murder.
But in May the Supreme Court ruled that law to be cruel and unusual punishment, and therefore unconstitutional. The court’s decision related to the case of Alexandre Bissonnette, who killed six Muslim worshippers in Quebec City in 2017. The prosecution had initially asked for 150 years parole ineligibility. As a result of the Supreme Court’s ruling, he will be eligible for full parole at age 52.
Reduced parole ineligibility periods do not necessarily mean release for the men who are seeking the reductions. Parole boards still have discretion over whether or not to grant them conditional release.
Normally, criminal cases cannot be reopened, even when the laws under which individuals were convicted have been ruled unconstitutional. But in this instance the Supreme Court said the continued infliction of cruel and unusual punishment would be unjust.
“It’s a way for the system, I think, to distance itself, and to distance Canadians, from being complicit in an egregious violation of human dignity and human life, the way it’s understood in Canada,” said Adelina Iftene, a professor at Dalhousie’s Schulich School of Law, who wrote a study of the 2011 law.
Mr. Ostamas’s case is unique. His legal team accepted the toughest possible sentence – three murders times 25 years ineligibility, for a total of 75 years – even though the 2015 murders he committed were all deemed second-degree. Also, he is Indigenous, and federal law requires special consideration in sentencing for Indigenous offenders. And he has schizophrenia, which is a mitigating factor.
His lead lawyer at the time, the late Greg Brodsky, who had 50 years experience in criminal defence, told The Globe and Mail afterward that his client had confessed to 22 killings, at least some of them in foreign jurisdictions, and that the sentence would keep him from being extradited to the United States and prosecuted. In court, Mr. Brodsky said he doubted his client’s confession was true – but he agreed to the sentence regardless.
Mr. Ostamas’s lawyer now, Ryan Amy, has filed a request with the Manitoba Court of Appeal for an extension of time to appeal his client’s sentence.
Once that request is accepted, Mr. Amy said he expects the court will reduce Mr. Ostamas’s wait for a full parole hearing to 25 years.
“In my mind at least it’s fairly straightforward, and I’m not sure the Court of Appeal has much of a choice,” he said. “The Supreme Court has spoken on that issue.”
He said he is not aware of any warrants for Mr. Ostamas’s arrest in the United States. For confirmation, The Globe contacted the U.S. Federal Bureau of Investigation, which referred a reporter to the U.S. Department of Justice. The department did not respond.
Mr. Baumgartner was the first to receive stacked parole periods under the 2011 law. He pleaded guilty to one count of first-degree murder and two counts of second-degree murder, plus a count of attempted murder, in return for 40 years ineligibility. Associate Chief Justice John Rooke of the Alberta Court of Queen’s Bench called Mr. Baumgartner a “cold-blooded killer with absolutely no compassion for life.”
Mr. Baumgartner’s lawyer, Peter Royal, said he is seeking instructions from his client. He said he expects Mr. Baumgartner will be granted a chance at parole after 25 years – just 15 years from now.
“I think clearly he’s a strong candidate,” Mr. Royal said. “He’s a young man, but I don’t think that’s an important factor. I think anybody who is given more than life-25 is a suitable candidate.”
That could lead to a court battle. The Alberta Crown Prosecution Service said in an e-mail it will review each application and determine its position based on the law and the individual circumstances of each case.
Some of the offenders now seeking early parole hearings have appeals still waiting to be heard.
Those cases include the sentence appeals of Jason Klaus and Joshua Frank. Mr. Klaus, who was tired of hiding his drug habits and gambling debts from his family, arranged for the murders of his father Gordon, mother Sandra and sister Monica by Mr. Frank, who shot them.
Justice Eric Macklin of the Alberta Court of Queen’s Bench declined to give the two men more than a 25-year ineligibility period, but the Alberta Court of Appeal raised it to 50 for each of them. On June 16, the Supreme Court remanded both appeals to the Alberta Court of Appeal, instructing it to decide them “in accordance with” the Bissonnette ruling.
Any offender who received 50 years ineligibility, the Supreme Court said in Bissonnette, “must be able to apply” to a court for a reduction, even if they are out of appeals. Mr. Ostamas, Mr. Klaus and Mr. Frank are among a dozen men in Canada whose sentences meet this threshold.
Another of them is Edward Downey, an Alberta man who strangled Sara Baillie, whom he blamed for breaking up his relationship with her best friend. He also killed Ms. Baillie’s five-year-old daughter, Taliyah Marsman, because she was a witness to his crime.
He was given a life sentence, with first eligibility for full parole at 50 years. His sentencing appeal was already before the Alberta Court of Appeal, and was adjourned pending the Supreme Court’s ruling in the Bissonnette case. So was the sentencing appeal of another Alberta offender, Derek Saretzky, who killed three people and received parole ineligibility of 75 years.
Another case at the appeals stage is that of Mark Smich, an Ontario man who received 50 years parole ineligibility for two counts of first-degree murder in the deaths of Laura Babcock and Tim Bosma. He is appealing his convictions and the sentence. In a written filing with the Ontario Court of Appeal, his lawyer, Richard Litkowski, asked for the consecutive parole periods to be quashed if the Supreme Court struck down the law, as it has now done.
As for waiting periods of less than 50 years, the Supreme Court said they may also be reduced if challenged, even where appeals are exhausted.
“Nothing prevents offenders upon whom consecutive ineligibility periods totaling less than 50 years have been imposed ... from alleging a continuing infringement of their constitutional right, provided that the infringement is proved in each case,” the court said in its ruling.
To prove it, an offender would need to show that their ineligibility period and age added together amounts to a whole-life sentence. While the court did not give a precise definition of a whole-life sentence, it said that offenders in prison for decades tend not to live past 60. There are 11 cases that fall into this category, including Mr. Baumgartner’s.
The first time the Supreme Court opened a legal penalty to retroactive challenges was in 2018, when it struck down another Harper-era law, which required convicted criminals to pay a surcharge to victim services, with no exceptions for impoverished offenders. (The surcharge had been imposed at judges’ discretion before the Harper government made it mandatory.) Courts that continued trying to enforce the payments were in effect imposing an illegal punishment, the court said.
Ontario prosecutors responded to the Supreme Court’s victim-surcharge ruling by asking judges to extend the time limit for paying the surcharge to 99 years. In several cases that dealt with tens of thousands of offenders, the judges, who did not have the authority to simply expunge the penalties, accepted the prosecution requests.
But prosecutors have not been similarly eager to pursue reductions of parole ineligibility periods.
“Under no circumstances would Alberta ever participate in any process to review or reduce the parole ineligibility of mass murderers,” Alberta Justice Minister Tyler Shandro said in an e-mail to The Globe.
“Alberta’s government is disgusted by the idea that these murderers could gain early access to parole and calls on the federal government to invoke the notwithstanding clause to prevent this from happening.”
How Canadian judges responded to giving out U.S.-style sentences
In the two biggest mass murders of the past decade – with eight victims in each – the convicted killers each received a single parole ineligibility term of 25 years.
One involved serial killer Bruce McArthur, who targeted Toronto’s Gay Village and killed and dismembered eight men between 2010 and 2017. All of the killings were deemed first-degree murder. An Ontario prosecutor asked for 50 years ineligibility. Ontario Superior Court Justice John McMahon said that both because Mr. McArthur had pleaded guilty, and because he would be 91 when eligible, the court would not give consecutive parole periods.
Another involved serial killer Elizabeth Wettlaufer, a nurse who deliberately killed eight elderly patients in Ontario with injections of large amounts of insulin. The killings, all first-degree murders, went on for nine years. Because she came forward to report her crimes, showed remorse and pleaded guilty, sparing the community more suffering, an Ontario prosecutor did not ask for consecutive parole periods. She will be eligible for full parole at 75.
Seventy-five years is the longest period of ineligibility given by a judge, and the oldest mass killer to receive the sentence was Douglas Garland of Alberta, who at age 54 killed two grandparents and their five-year-old grandson. Alberta Court of Queen’s Bench Justice David Gates said he was not concerned about the sentence running well beyond Mr. Garland’s lifespan. The point is “to sustain public confidence in the maintenance of a just, peaceful and safe society,” he wrote. The Alberta Court of Appeal upheld the ruling by a count of 2-1.
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