Cruel and unusual, or just and fair? That was among the questions facing judges in two provinces before they sentenced two men on Friday for some of the most horrific recent crimes in Canada.
The sentence for first-degree murder in Canada is automatically life with no chance of parole for 25 years. But the trials of Bruce McArthur, a Toronto serial killer with eight victims, and Alexandre Bissonnette, who shot and killed six people at a Quebec City mosque, brought attention to a change in Canadian law introduced in 2011.
From its beginning, Canada’s criminal law has always given judges the power to impose consecutive sentences. That is, when someone has committed more than one crime, their sentences could be piled on top of one another, extending their time in prison.
But court rulings meant that when it came to life sentences, judges could only make them concurrent. In the case of first degree, or premeditated, murder, that meant a serial killer could, in theory, be let out on parole after 25 years.
The previous Conservative government led by Prime Minister Stephen Harper changed the Criminal Code to allow judges to impose consecutive sentences for murder. The sentence remains life. But judges can now effectively ensure that people who commit more than one murder will never leave jail alive by stacking up parole hearing periods in 25-year blocks.
Rob Nicholson, the Conservative justice minister, said the change would “send out the message that there are no discounts for multiple murderers in Canada anymore.”
Steven Penney, a law professor at the University of Alberta, told me this week that the effect of the change has mostly been symbolic because mass murderers and serial killers have never had any hope of getting out of prison on parole.
“Under the previous law, people who did receive life sentences in fact served life sentences,” he said.
But even if it brought little in the way of practical changes, Professor Penney said that the law was a significant shift for Canada, where sentences were historically intended to show the public’s disapproval of crimes without slipping into vengeance, or violating the constitution’s ban on “cruel and unusual punishment.”
Judges are still figuring out how it should work, he said.
Friday provided two examples. The judge in Toronto decided that Mr. McArthur will serve his sentences at the same time, citing his age and poor health. If he is still alive, Mr. McArthur will be 91 when he attends a parole hearing.
In Quebec City, prosecutors had suggested that Mr. Bissonnette get consecutive sentences that would have put off his parole hearing for 150 years. The judge compromised and postponed his potential parole for 40 years after concluding that 50 years or more would be cruel and unusual punishment.
That decision only underscored the confusion around the law.
A year ago, Justice Michael Code of the Ontario Superior Court of Justice complained that the law limited him to either extending the parole waiting period to 50 years or keeping it at 25 in a case involving two men he had convicted of a carrying out a second murder.
“These are stark alternatives,” he wrote before encouraging lawmakers to change the law to make it possible for judges to extend the wait for parole as they saw fit.
In Quebec City on Friday, Superior Court Justice François Huot had a complex workaround to avoid the 25-year rule. He effectively amended the law and gave Mr. Bissonnette five concurrent life sentences with 25-year parole waiting periods. For the sixth conviction, the judge added 15 years, making the total waiting period 40 years.
According to the Department of Justice there have been 13 multiple murder cases that have led to consecutive sentences since 2011.
But debate and confusion will likely continue in court — unless or until the Supreme Court hears an appeal.
—The motivation of Bruce McArthur, who terrorized Toronto’s gay community through a series of killings, remained unknown as he headed off to prison.
—The case of Alexandre Bissonnette, who killed six people at a Quebec City mosque, highlighted changes in how killers convicted of more than one first-degree murder are sentenced.
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