In a unanimous decision regarding the cumulative sentences in the Bissonnette case, the Quebec mosque killer, the Supreme Court of Canada struck down section 745.51 of the Criminal Code, implemented in 2011 by the Harper government.

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The article was declared unconstitutional, retroactively, since it came into force.

What is section 745.51?

Section 745.51 provides that "in sentencing pursuant to section 745, the judge presiding over the trial of an offender who is convicted of murder and who has been convicted of one or more other murders — or if he is unable to attend, any judge of the same court — may, having regard to the character of the offender, the nature of the offense and the circumstances surrounding its commission and any recommendation made under section 745.21, order that the periods of parole ineligibility for each murder conviction shall be served consecutively.”

In 2011, the Harper government added this article to the Criminal Code in order to allow, in the context of multiple murders, the possibility of establishing a real life sentence, by the possibility offered to the judge of being able to add several consecutive periods of ineligibility for parole.

In the context of the Bissonnette affair, some spoke of the absurdity of offering the right to parole at 120 or 170 years of age.

This rule limited a possible right to hope for the defendant.

The reasons for its unconstitutionality

This question of the right to hope, and the right to rehabilitation is at the heart of the decision rendered by the Supreme Court and its Chief Justice Wagner.

He explains that “The horror of crimes does not deny the fundamental proposition that all human beings carry within them the capacity to rehabilitate themselves.”

Chief Justice Wagner adds that this provision "authorizes the court to order an offender to serve a time of probation which exceeds the life expectancy of any human person, a sentence the absurdity of which is such as to bring the administration of justice”.

“This punishment is degrading and incompatible with human dignity. (…) By denying offenders in advance any possibility of reintegrating into society, section 745.51 undermines the very foundations of Canadian criminal law,” concluded the Chief Justice.

As a result, such a legislative provision is contrary to the charter and unconstitutional under section 12 of the latter, which provides that everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

The consequences of this judgment of the Supreme Court

The impact of this decision will go far beyond the Bissonnette affair. Indeed, several other convicts were entitled to cumulative sentences of this kind, under section 745.51 of the Criminal Code.

The retroactive effect of the decision means that many convicts will see their period of imprisonment without the possibility of parole reduced to just 25 years.

Others at risk of seeing a fairly large accumulation of these periods will not experience this fate.

This decision has therefore not finished making waves in the judicial community.