By Leonid Sirota
A recent episode of The Line Podcast featured a discussion of punishment for serious crimes, including irreducible life sentences — that is, those from which the prisoner is never released, even on parole. The Supreme Court, though, in the Bissonnette case, has held that such sentences are unconstitutional, because they amount to “cruel and unusual punishment” contrary to the Canadian Charter of Rights and Freedoms.
Yet the court was wrong to do so, and its decision rests on a misapprehension of the moral, as well as the legal, issues at stake, as a colleague and I argue in an article recently published in the European Human Rights Law Review. Those interested in the full argument are very welcome to read a free version of our article, but what follows is a short and mostly legalese-free overview.
First, however, I should note that the Supreme Court of Canada is not an outlier. The Strasbourg-based European Court of Human Rights, for instance, regards irreducible life sentences as a form of “inhuman and degrading treatment.” Some European countries, indeed, do not impose life sentences at all, let alone irreducible ones.
But nor is the rejection of such sentences a view universally held by jurists committed to upholding human rights. In New Zealand, the man who murdered 51 worshippers at two mosques in Christchurch was sentenced to an irreducible life sentence. The sentencing judge considered whether this would infringe New Zealand’s Bill of Rights Act, and concluded that it would not.
By a freakish coincidence, the Bissonnette case arose from a near-identical massacre in Quebec City, albeit one in which “only” six people were killed. But one striking difference between the New Zealand judgment and its Canadian and European counterparts is that only the former is sensitive to the suffering the man being sentenced has inflicted. By contrast, the circumstances of the crimes and the victims are as good as absent from the Canadian and European judgments. Canada’s Chief Justice Wagner even makes a virtue of this by saying that the court’s judgment must apply to future cases, not just the one before it, but there is a reason we normally ask courts to address concrete cases: their circumstances must inform the judgment. The victims were human beings, with rights of their own, and it is necessary to think of them to assess the matter fully.
The community, too, deserves a place in this assessment. To be sure, as the New Zealand judge recognized, the sentencing for no crime, even the most shocking one, should become a simple exercise in vengeance. But just as, in Canada, criminal prosecutions are brought in the name of the King, who is the personification of the community, so too the sentence given by the court is given in the community’s name and reflects its collective sense of justice. This sense can properly accommodate feelings of outrage and indignation at a crime, although it must not be confined to these feelings, and must be given, as the New Zealand judge put it, a civilized form by the sentencing court.
It is, indeed, generally uncontroversial that a just punishment must reflect a number of factors, among which are denunciation and retribution, as well as a hope for the offender’s rehabilitation. None of these factors is supposed to be presumptively determinative. But the Canadian and European judgments rejecting irreducible life sentences treat rehabilitation as if it were the capstone of sentencing: for them, irreducible life sentences are unacceptable because they deny the possibility of rehabilitation. But that is not so. However difficult it is to believe in the future rehabilitation of a mass murderer, the reason for imposing an irreducible life sentence is not that he can never become a different person. It is rather that, as the New Zealand judge recognized, no lesser punishment can sufficiently denounce and exert retribution for certain crimes.
In addition to rehabilitation, the Canadian and European judges are concerned with atonement or, in Chief Justice Wagner’s words, the idea that an offender must be able to repay his debt to society. The New Zealand judge also spoke of atonement, but as he saw it, the man he was sentencing never could “even in a modest way, atone for what [he had] done,” such was the enormity of his crime. And indeed atonement, or reconciliation, is only something that may be sought, not demanded. It is not something a criminal is entitled to as a matter of right, even after a long sentence of imprisonment. Moral bankruptcy, just like the financial kind, means that some debts can never be paid in full.
The Supreme Court’s other objection to irreducible life sentences is that they condemn the prisoner to lose any hope for a better future for himself. That may be so but, quite apart from the thought that a murderer has himself taken away his victim’s future, the argument proves too much. For an aged criminal — and such people exist — even a sentence eligible for parole may well amount to an irreducible one in practice. The Supreme Court makes a point of saying that this does not amount to a constitutional violation. But there is no good reason to treat the loss of hope as unconstitutionally cruel in some cases — the worst ones — but not in others.
I make three brief observations before concluding. First, the argument that irreducible life sentences are not unconstitutional is not, without more, an argument in their favour. We might want to consider, for instance, whether prisoners denied the carrot of possible parole will be an insufferable source of trouble for the institutions where they are kept. But this and other policy questions are for Parliament, not the courts.
Second, any discussion of a serious error by the Supreme Court in a Charter case is bound up with the question of whether the Charter’s “notwithstanding clause” should be used to overturn such an error. I have long maintained that the “notwithstanding clause” must not be used under any circumstances, and I stand by this view. If, however, a federal government wanted to initiate an amendment to the Charter to allow irreducible life sentences, I would support it.
And third, if Parliament is to reintroduce irreducible life sentences, I hope it does so transparently and forthrightly, rather than in the backhanded way it had done so in the law the Supreme Court struck down in Bissonnette. This allowed for 25-year periods of parole ineligibility to be stacked in cases involving multiple murders. Had the law been applied to the accused in Bissonnette, for instance, he would supposedly have been eligible for parole … after 150 years. Such a sentence would have been an insult to everyone’s intelligence. If we believe that some people deserve to spend the rest of their life in prison, we ought to be honest enough to say so.
But reasonable people can indeed so believe, and there is nothing in the Charter or in the broader commitment Canadians have to human rights that should prevent us from acting on this belief. The Supreme Court was wrong to rule otherwise. We must be civilized and humane, but not blind to the unspeakable evil our fellow human beings sometimes do.
Leonid Sirota is an associate professor at the Reading Law School (U.K.), and the founder of the Double Aspect blog.
The Line is entirely reader and advertiser funded. No federal subsidies, no bailouts. If you value our work, please consider supporting us by subscribing or making a donation. Donations are not subscriptions and do not unlock paywalled content, but they help keep The Line independent
To contact The Line with a general inquiry or comment, please email info@readtheline.ca. For other ways to connect with us or to follow us on social media, please see our LinkTree.
Assuming the conviction is absolutely certain, I would prefer those that might at one time have been sentenced to capital punishment be stripped of their citizenship (i.e. their right to rejoin society) and sent to an isolated location (e.g. remote island or deep wilderness - with sufficient protections around it to prevent escape/rescue). They can reflect on their choices there without being a burden on the rest of society (including prison staff.)