June 28, 2022
By Dirk van Zyl Smit
One of the most challenging responsibilities of courts all over the world is imposing the appropriate penalty on persons convicted of the most heinous crimes. While penalties must reflect the need for denunciation, they must also respect human rights principles, lest they undermine the recognition of the fundamental human dignity of all persons, including offenders. The European Court of Human Rights (hereinafter ‘the ECtHR’) has been at the forefront of shaping life imprisonment into an ultimate penalty that can be compatible with human rights principles. In R v. Bissonnette the Supreme Court of Canada relied in part on the judgments of the ECtHR in setting limits on the state’s power to punish when it is exercised through the imposition of life sentences. This note explains how the ECtHR can build on this Canadian judgment to set international standards in cases of extradition where offenders face the possibility of life imprisonment.
The defendantshot and killed six worshippers and seriously injured five others in the Grand Mosque of Quebec, a crime of “unspeakable horror” (§ 1).
At his trial, Bissonnette pleaded guilty to six counts of first degree murder and lesser charges related to the serious injuries. Bissonnette was duly convicted of the six counts of first degree murder (as well as other lesser charges). Each count of first-degree murder carried a mandatory sentence of life imprisonment with a minimum term of 25 years before parole could be considered. The prosecution asked that the sentences run consecutively, as permitted under section 745.51 of the Criminal Code, for an aggregate term of 150 years to life. The judge found that such a sentence would be unconstitutional, but that its unconstitutionality could be remedied by ‘reading in’ a power for the judge to set an overall minimum period, which was longer than 25 years but did not involve further 25-year periods that would result in the offender never being considered for release. Accordingly, the trial judge proceeded to impose an overall minimum term of 40 years.
On appeal by the defendant, the Court of Appeal of Quebec found the relevant provision of the Criminal Code fundamentally unconstitutional, and not open to being read differently, as the clear intention of parliament had been to create the possibility of imposing consecutive periods of 25 years, and not to give judges a discretion to impose shorter additional periods. Accordingly, the Court of Appeal ordered the sentences to run concurrently, for a total parole ineligibility of 25 years. The prosecution appealed the finding of unconstitutionality to the Supreme Court of Canada.
In a unanimous decision authored by Chief Justice Wagner, the Supreme Court of Canada rejected the appeal. Like the Court of Appeal of Quebec, the Supreme Court ruled that section 745.51 of the Criminal Code was unconstitutional and could not be saved, even in part, by reading it differently, as had been the trial court’s interpretation. In the view of the Supreme Court, an extended minimum period of multiples of 25 years would amount to a sentence of life imprisonment without a reasonable prospect of release (de facto life without parole (LWOP)). Such a sentence would be “cruel and unusual,” an affront to the human dignity of the person being sentenced, and violate section 12 of the Canadian Charter of Rights and Freedoms that prohibits “cruel and unusual treatment or punishment.”
Placing its analysis firmly in the wider context of the acceptable limits of sentencing generally, the Supreme Court explained why consecutive minimum 25-year minimum terms under section 745.51 were unconstitutional. The Court first emphasised that sentencing cannot focus only on denunciation and deterrence. The constraints of human dignity meant that sentencers had to recognise that there was a possibility of rehabilitation for all offenders. If someone had no reasonable prospect of release, rehabilitation effectively became irrelevant, as the possibility of their again becoming full members of society was denied. In the words of Chief Justice Wagner:
A sentence of imprisonment for life without a realistic possibility of parole is intrinsically incompatible with human dignity. Such a sentence is degrading insofar as it negates, in advance and irreversibly, the penological objective of rehabilitation (§8).
Secondly, although the Court emphasised the importance of avoiding gross disproportionality in sentencing, it made clear that, if a “punishment that might be imposed is cruel and unusual by nature, and hence intrinsically incompatible with human dignity, it will be unnecessary … to consider whether it is grossly disproportionate in a given case, because a punishment that is cruel and unusual by nature will always be grossly disproportionate” (§ 69). This is an important point to make in a case such as this one, for there is an understandable tendency to argue that a mass murderer ‘deserves’ a more severe punish than someone who ‘only’ kills a single person.
Finally, the court held that a life sentence without a reasonable prospect of release really imposed an intolerable burden on sentenced persons. Relying on empirical evidence, the Court found that: “The psychological consequences flowing from a sentence of imprisonment for life without a realistic possibility of parole are in some respects comparable to those experienced by inmates on death row, since only death will end their incarceration.” (§ 97). The Court concluded that “[e]ffects like these support the conclusion that a sentence of imprisonment for life without a realistic possibility of parole is degrading in nature and thus intrinsically incompatible with human dignity.” (ibid.)
For European readers of this blog, an important aspect of this judgment is how carefully the Supreme Court of Canada found support for its conclusions in international and comparative law, and, in particular, in the jurisprudence of the ECtHR. The Supreme Court traced the themes of human dignity and rehabilitation through the International Covenant on Civil Political Rights, which Canada has ratified and by which it is therefore bound. The Supreme Court then noted that “European law also provides useful guidance on the concept of dehumanizing and degrading punishments and on the importance of rehabilitation in criminal law”. (§ 104). Although Canada is of course not bound by this guidance, the Supreme Court spelled out the substance of the relevant European jurisprudence in considerable detail with particular reference to the judgments of the Grand Chamber of the ECtHR in Vinter and others v. the United Kingdom, Murray v. Netherlands and Hutchinson v. United Kingdom.
The Supreme Court placed particular emphasis on the requirement, developed in the ECtHR case law, that a realistic prospect of release depends on the availability of a regular and procedurally adequate review of the continued detention for life sentenced prisoners after a fixed period. For the ECtHR, the unfettered discretion of the head of state to intervene is no substitute for such review. The Court in Bissonnette, following the ECtHR, held that the royal prerogative of mercy, which still applies in Canada, could not save the constitutionality of the statute.
The decision in Bissonnette shows the influence of ECtHR case law beyond Europe, and also provides a rationale for the application of its sentencing principles to the extradition context. Should an accused in a European country, party to the ECHR, facing a penalty incompatible with the ECHR in a non-European country be extradited to the latter? In its historic 1989 decision in Soering v. the United Kingdom, the ECtHR refused to allow Jens Soering to be extradited to the United States to face a possible death sentence, even though the incompatibility of capital punishment with the ECHR had not yet been fully established. In order to obtain the extradition, the USA guaranteed that Soering would not face the death penalty in the USA. In 2014, the former fifth section of the ECtHR in Trabelsi v. Belgium, held that the applicant should not be extradited to the USA as he may have had to face an LWOP sentence if convicted and that that would be inhuman or degrading and contravene Article 3 of the ECHR.
The Grand Chamber of the ECtHR is currently considering the question in McCallum v. Italy. In that case, the initial extradition application was for McCallum to stand trial in Michigan for first degree murder where she faced the possible mandatory sentence of life imprisonment without a prospect of parole (LWOP). As the case proceeded, the USA was prepared to give a guarantee that, if extradited, McCallum would be charged only with second degree murder, a ‘lesser’ offence that does not carry LWOP as a possible sentence. This development alters the question presented to the Grand Chamber.
However, the full question of whether the possibility of an LWOP sentence is an absolute bar to extradition is still before the ECtHR in Sanchez Sanchez v. United Kingdom, argued before the Grand Chamber on 23 February 2022, and currently sub judice. In this case, the USA has not given a guarantee that LWOP will not be imposed the person whose extradition is being sought. In deciding this case the ECtHR could find ‘useful guidance’ in Bissonnette. First, the Supreme Court of Canada found that an LWOP sentence is always grossly disproportionate and necessarily amounts to a degrading infringement of human dignity, violating Article 3 ECHR. As the Supreme Court explained, there is no room for LWOP as a punishment even for the most heinous offences. To this extent, the ECtHR should interpret LWOP in extradition cases in the same way as it did in respect of the death penalty in the Soering case. Countries that seek the extradition of a criminal suspect from state parties to the ECHR should have to provide guarantees that, if extradition is allowed, LWOP will not be imposed following a conviction, in the same way that they currently guarantee that the death penalty will be excluded.
Secondly, the Bissonnette judgment can be of assistance in determining whether a particular life sentence is truly without a reasonable prospect of release. Its careful demonstration that the royal prerogative does not provide an appropriate prospect of release can be applied also to countries, such as the USA, where the remote prospect of a presidential pardon is sometimes touted as a viable alternative release system. The ECtHR has held that a presidential pardon is an insufficient safeguard against whole life imprisonment in cases such as Matiošaitis and others v. Lithuania, Petukhov v. Ukraine no. 2, and Sándor Varga and others v. Hungary. However, the Bissonnette judgment on this point may well provide useful further support for these holdings.
In all, the decision of the Supreme Court of Canada, although taken in a hard case, where the heinous multiple murders committed by the offender leave little sympathy for him, is rooted in principled clarity of thought. The Supreme Court not only builds on the jurisprudence of the ECtHR, but it also underlines that the rejection of all sentences from which there is no reasonable prospect of release must be absolute. The ECtHR should ensure that that same principled clarity is applied to extradition cases, for, if state parties to the ECtHR were to extradite someone to a country where they may be sentenced to LWOP, they would be complicit in allowing a degrading sentence that is manifestly contrary to human dignity to be imposed.
 Section 745.51 of the Criminal Code was introduced in 2011 by the Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act. The title of the amending Act provides an unusually clear indication of the motivation of the legislator.