2019 QCCA 460, 2019 QCCA 460

Bain c. R. 2019 QCCA 460 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006323-164 500-10-006325-169 (500-01-078085-120) DATE: MARCH 20, 2019 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. ALLAN R. HILTON, J.A. JACQUES J. LEVESQUE, J.A. MARIE-JOSÉE HOGUE, J.A. PATRICK HEALY, J.A. RICHARD HENRY BAIN APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT * [ 1 ] Richard Henry Bain appeals as of right the judgment of the Superior Court, District of Montreal (the Honourable Mr.

Justice Guy Cournoyer) rendered on November 18, 2016 seeking the reduction of the period of his ineligibility for parole from 20 years to 10 years following his conviction on one count of second degree murder ( s. 231(7) Cr.C .). He further seeks leave to appeal the concurrent sentence of life imprisonment following his conviction on two counts, as drafted, of “attempted murder while using a firearm” ( s. 239(1) (

a) Cr.C .) and one count, as drafted, of “attempted murder by discharging a firearm” ( s. 239(1) ( a.1 ) Cr.C .). [ 2 ] The respondent Her Majesty the Queen appeals the same sentencing judgment pursuant to s. 687(1) (

a) Cr.C . and seeks an increase of the period of ineligibility of parole the trial judge imposed from 20 years to 25 years. [ 3 ] For the joint reasons of Hilton, Hogue and Healy, JJ.A., and the separate joint reasons of Duval Hesler, C.J. and Levesque, J.A.; THE COURT : [ 4 ] DISMISSES the appellant’s appeal inscribed as of right and DECLARES his application for leave to appeal the sentence on the other three counts for which he was also convicted to be moot; [ 5 ] DISMISSES the respondent’s appeal. NICOLE DUVAL HESLER, C.J.Q. ALLAN R. HILTON, J.A. JACQUES J. LEVESQUE, J.A. MARIE-JOSÉE HOGUE, J.A. PATRICK HEALY, J.A.

Mtre Alan Guttman Mtre Annie Giguère-Deraps GUTTMAN & MARIER For appellant Mtre Maude Payette DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For respondent Date of hearing: October 30, 2018 JOINT REASONS OF HILTON, J.A. HOGUE AND HEALY JJ.A. [ 6 ] The Court has before it an appeal inscribed as of right by Richard Henry Bain arising out of the sentencing judgment of Cournoyer, J. rendered on November 18, 2016 following Mr. Bain’s conviction by a jury on August 23 of one count of second degree murder. [1] Mr.

Bain was also convicted by the same jury of three other counts relating to offences that he committed contemporaneously with the murder, for which he was also sentenced. [2] For its part, the Crown has appealed the same sentencing judgment as of right pursuant to s. 687(1) (

a) Cr.C . as interpreted by the Supreme Court of Canada in R . v. Hill . [3] For the reasons that follow, we would dismiss both Mr. Bain’s appeal and that of the Crown. [ 7 ] Mr. Bain was charged with one count of first-degree murder of Denis Blanchette (s. 231(2) Cr.C . ), two counts of attempted murder while using a firearm ( s. 239(1) (

a) Cr.C .) with respect to Dave Courage and Sgt. Stéphane Champagne and one count of attempted murder while discharging a firearm ( s. 239(1) ( a .1) Cr.C .) with respect to Benoît Belhumeur, Jonathan Dubé, Audrey Dulong, Jérôme Savard, Hakim El Harrif, Gael Ghiringhelli, Benoît Gromko, Kevin Calabra, François Blouin, Yanik Marceau, Guillaume Parizian and Elias Ames-Bull . [4] [ 8 ] He led expert evidence to support a defence that he was not criminally responsible by reason of mental disorder ( s.16(2) Cr.C .).

The jury rejected that defence and found him guilty of second-degree murder ( s. 231(7) Cr.C . ) and the three counts of attempted murder. [ 9 ] The relevant facts, which are not disputed, were stated by Cournoyer J. as follows: [13] On September 4, 2012, a general election was held in Quebec. The Parti Québécois was holding its election-night rally at the Metropolis, a concert hall in Montreal. At some point in the evening, it was projected that the PQ would form the next government.

Around a quarter to midnight, Ms Pauline Marois took to the stage to give her speech as premier-elect. [14] Around the same time, Mr. Bain, who was listening to live coverage of the election results on the radio, in his parked vehicle in a lot adjacent to the Metropolis. He put on a black balaclava, a royal blue bathrobe with white stripes and walked across the lot toward the Metropolis armed with a semi-automatic rifle, a handgun, an extra magazine clip, a gasoline canister and flares. [15] Mr. Bain approached the back entrance, took aim with his rifle and fired on a group of people standing in the stairway.

He managed to fire only a single shot before his weapon jammed. The bullet fatally wounded Denis Blanchette and seriously injured Dave Courage. The other people standing outside fled the scene. [16] Unable to use his rifle any further, Mr. Bain proceeded to place the gasoline canister in the stairway. Alerted to the scene, a police officer spotted him as he was about to set the fire and yelled “police!” at him. Mr. Bain ignored him and lit the flare. He tossed it at the canister and began to flee the scene running.

The flare ignited the gasoline and set the stairway ablaze. [17] The officer and a colleague gave chase on foot. During the foot chase, Mr. Bain drew a loaded 9mm pistol and tried to shoot at the officer. The pistol did not fire as no bullet was chambered. The officer tackled Mr. Bain and brought him to the ground. Other officers intervened and arrested Mr. Bain. [18] Mr. Bain made several incriminating statements subsequent to his arrest, both to police officers and to the media that were present at the Metropolis covering the election-night rally. [19] During a search of Mr.

Bain’s vehicle, police discovered two other semi-automatic rifles, a handgun, ammunition and other weapons. [20] Earlier that day, Mr. Bain had gone to the Royal Victoria Hospital to visit his brother’s wife. Upon leaving the hospital around 18h30, he inquired where the Metropolis was located. A few minutes later, various surveillance cameras captured Mr. Bain’s vehicle circling around the Metropolis. Mr. Bain drove past the Metropolis before the street was closed to traffic at 19h00 before returning to his cottage to equip himself with weapons, emergency flares and gasoline. [21] A subsequent search of Mr.

Bain’s residence at Lac Wade in La Conception, Quebec revealed the presence of several other firearms and ammunition, and prohibited devices. [22] In the days and weeks following the election-night shooting, Mr. Bain made phone calls to various media while he was in custody at the Rivière-des-Prairies detention centre to discuss his political vision. He also recorded a statement that was uploaded to his Facebook profile in which he stated that he went to the Metropolis to prevent Ms. Marois from making her speech and celebrating her

victory. [23] During his testimony, Mr. Bain admitted making the statement but suggested ludicrously that this was made to support the financing of his political vision for the separation of Montreal. [24] Finally, the answers given during an interview to Dr. Allard on November 9, 2012 provide a detailed explanation of his plan to kill as many separatists as he could. [ 10 ] The jury heard two expert witnesses on the issue of whether Mr. Bain could be found not criminally responsible by reason of mental disorder . [ 11 ] In an extensive court ordered assessment, Dr.

Joel Watts, concluded, “with reasonable medical certainty”, that: • Mr. Bain was not in a manic, depressed or psychotic state at the time of the commission of the offences; • Mr. Bain was able to appreciate the nature and quality of his acts on the day of the commission of the offences; • Mr. Bain knew the wrongfulness of his acts when he committed them. [ 12 ] In an equally extensive report submitted on behalf of Mr. Bain, Dr. Marie-Frédérique Allard opined that if the jury were to conclude that Mr.

Bain was suffering from an acute psychotic episode when the offences were committed, then such a “perturbed mental state” would satisfy the criteria for his being found not criminally responsible. Although she acknowledged that Mr. Bain “is an intelligent person who knows that murder is a wrongful act”, she added that if at the relevant time he was in the same psychotic state that she observed after the events, then his ability to reason would have been lost.

Accordingly, he would have been unable “to reason and apply his knowledge and therefore to know that the acts he committed were wrong under the circumstances”. [ 13 ] Having rejected the defence of mental disorder, the jury had to grapple with the essential difference between first- and second- degree murder, which is whether or not there was evidence beyond a reasonable doubt that the intentional homicide was both “planned” and “deliberate”.

Here is how Cournoyer J. explained the meaning of these terms to the jury: [209] To prove first degree murder, the prosecution must prove beyond a reasonable doubt not only that Mr. Bain had the intent required for murder, but also that the commission of murders was both planned and deliberate. “Planning and deliberation” are not the same as “intention”. For example, a murder committed intentionally, but on a sudden impulse or without prior consideration, is not planned and deliberate. [210] It is the murder itself or murders that must be both planned and deliberate, not something else that Mr.

Bain did. [211] The words “planned” and “deliberate” do not mean the same thing. [212] “Planned” means a calculated scheme or design that has been carefully thought out, the nature and consequences of which have been considered and weighed. [213] The plan does not have to be complicated. It may be very simple. Consider the time it took do develop the plan, not how much or little time it took between developing it and carrying it out. One person may prepare a plan and carry it out immediately.

Another person may prepare a plan and wait a while, even quite a while, to carry it out. [214] “Deliberate” means “considered, not impulsive”, “slow in deciding”. [215] A deliberate act is one that the actor has taken time to weight the advantages and disadvantages of. The deliberation must take place before the act of murder starts. A murder committed on a sudden impulse and without prior consideration, even with an intention to kill is not a deliberate murder. [216] It is for you to say whether the commission of murders was both planned and deliberate.

To decide this issue, you must consider all the evidence, including the evidence of Mr. Bain state of mind and anything said or done in the circumstances. [217] Again, as I mentioned previously, even if the evidence with respect to Mr. Bain’s mental condition was not sufficient to convince you that he should be exempted from criminal responsibility, it may raise a reasonable doubt about whether the commission of murders was both planned and deliberate. [218] The relevant evidence to consider on this issue includes in particular: 218.1. Mr. Bain’s written answers provided to Dr. Allard on November 9, 2012; 218.2.

All acts required to assemble everything he brought with him at the Metropolis; 218.3. Any act or conduct to locate the Metropolis and look at its surroundings. [219] This is not meant to suggest that this is the only relevant evidence. [220] Unless you are satisfied beyond a reasonable doubt that the commission of murders was both planned and deliberate, you must find Mr.

Bain not guilty of first degree murder, but guilty of second degree murder. [221] If you are satisfied beyond a reasonable doubt that the commission of murders was both planned and deliberate, and you have no reasonable doubt on the basis of the evidence of his mental condition all of the evidence, you must find Mr. Bain guilty of first degree murder . [Emphasis added]

[ 14 ] Assuming that the jurors followed the judge’s instructions, the only conclusion to be drawn from the verdict of second-degree murder is that they were not convinced that the necessary planning and deliberation had been proved beyond a reasonable doubt. [ 15 ] Mr. Bain did not testify at the sentencing hearing, although in an unsworn statement at its conclusion he expressed his “deep, deep regret” and “sincere apologies”, and recognized the “grief and sorrow” suffered by family members of the victims.

Victim-impact statements were also delivered orally by Diane Blanchette, the widow of Denis Blanchette, the technician at the Metropolis who Mr. Bain was found guilty of having murdered, as well as four of the twelve victims Mr. Bain was found guilty of having attempted to murder: Gail Ghiringhelli, Jonathan Dubé, Hakim El-Harif and François Blouin. [ 16 ] Submissions to Cournoyer J. on the appropriate period of ineligibility for parole reflect exactly what counsel assert in this Court: the minimum of 10 years proposed by Mr.

Bain and the maximum of 25 years proposed by the Crown. [ 17 ] In imposing the obligatory sentence of life imprisonment on the second-degree murder count, Cournoyer J. fixed the period of Mr. Bain’s ineligibility for parole at 20 years. [5] He did so after a thorough analysis of the applicable sentencing principles as applied to the circumstances of the four offences of which Mr.

Bain was found guilty, all of which carry maximum sentences of life imprisonment. [ 18 ] These principles included factors to be considered in fixing an extended period of parole ineligibility such as the Crown sought (including vengeance, retribution and denunciation, as well as mental condition of the offender), a review of the case-law on the establishment of an appropriate range, in which he concluded by quoting from Wagner, J. (as he then was) in R. v.

Lacasse to the effect that “sentencing ranges are primarily guidelines, and not hard and fast rules.” [6] Reference was also made to case-law emanating from the British Columbia Court of Appeal in which it was held that consideration may properly be given in a second-degree murder case to circumstances where the offence is “so close factually to first degree murder.” [7] [ 19 ] Cournoyer J. then took account of the aggravating and mitigating factors. [ 20 ] In the former category, he placed particular emphasis on s. 718.2 (a)(

i) Cr.C . to the effect that a sentence should be increased where there is “evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor.” In this instance, the sentencing judge held that the offences were politically motivated by bias, prejudice or hate based on political thought, belief or opinion of members of the Parti Québécois that had just emerged victorious in the provincial election. [ 21 ] Mr.

Bain’s principal objective that evening was clearly to assassinate Ms. Pauline Marois, the leader of the Parti Québécois, thereby precluding her from assuming the role as premier of Quebec and leader of the province’s duly elected government. A secondary factor was to kill as many of her supporters as he could. It is a matter of pure chance that his firearm jammed and he was unable to carry out his objective.

But for this stroke of luck, the result would have been a massacre of immense proportions. [ 22 ] In the sentencing context for second-degree murder in this case, it is difficult to conceive of an offender’s clearly stated objectives as being factors more aggravating in a democracy such as we enjoy in Quebec, especially when multiple victims are contemplated. [ 23 ] Cournoyer J. identified only one mitigating factor, that Mr. Bain was a first-time offender whose behaviour on the evening in question was uncharacteristic.

Without having said so specifically in this context, he obviously took account of evidence in the record from expert reports and otherwise as to Mr. Bain’s uneventful prior work history, community involvement and a long-term relationship with a female partner from whom he was then separated but with whom he had cohabited for many years. [ 24 ] The first issue to consider relates to the failure of the trial judge to comply with the mandatory requirement of s. 745.2 Cr.C . after the jury returned its verdict that Mr. Bain was guilty of second-degree murder. 745.2 Subject to

section 745.3, where a jury finds an accused guilty of second degree murder, the judge presiding at the trial shall, before discharging the jury, put to them the following question: You have found the accused guilty of second degree murder and the law requires that I now pronounce a sentence of imprisonment for life against the accused. Do you wish to make any recommendation with respect to the number of years that the accused must serve before the accused is eligible for release on parole?

You are not required to make any recommendation but if you do, your recommendation will be considered by me when I am determining whether I should substitute for the ten year period, which the law would otherwise require the accused to serve before the accused is eligible to be considered for release on parole, a number of years that is more than ten but not more than twenty-five. 745.2

Sous réserve de l’article 745.3, le juge qui préside le procès doit, avant de dissoudre le jury qui a déclaré un accusé coupable de meurtre au deuxième degré, lui poser la question suivante : Vous avez déclaré l’accusé coupable de meurtre au deuxième degré et la loi exige que je prononce maintenant contre lui la peine d’emprisonnement à perpétuité.

Souhaitez-vous formuler, comme vous avez la faculté de le faire, quant au nombre d’années qu’il doit purger avant de pouvoir bénéficier de la libération conditionnelle, une recommandation dont je tiendrai compte en examinant la possibilité de porter à au plus vingt-cinq ans ce délai qui, aux termes de la loi, s’élève normalement à dix ans? [ 25 ] It is certainly perplexing that such an omission occurred at a trial presided over by so experienced a trial judge with such experienced counsel and that they did not draw the omission to the judge’s attention before the jury was discharged.

It is undoubtedly a reflection, however, of their surprise at the verdict the jury returned. That being said, when Cournoyer J. mentioned it at the outset of the

sentencing hearing on September 9, 2016, five days after the verdict was returned on September 4, it was understood by all concerned to have been an error in good faith that could not be cured at that stage because the jury had been discharged.

Equally significant is the fact that neither counsel raised it in their sentencing submissions to the trial judge as a basis to determine the period of ineligibility, nor did he allude to it in his sentencing judgment. [ 26 ] In any event, there is no way to know whether the jury, after 11 days of deliberation on the verdict, would have accepted an invitation from the trial judge to make any recommendation at all, knowing that under existing Quebec jurisprudence their recommendation would have to be unanimous, [8] and that while he was bound to consider it, he was not obliged to accept it. [ 27 ] We therefore do not consider this good-faith error of the trial judge and the omission of both counsel to draw it to his attention on a timely basis, regrettable though it is, to be valid factors to take into account in assessing the merits of Mr.

Bain’s appeal. [ 28 ] Mr. Bain’s next submission argues that since he was 66 years old [9] when the period of ineligibility for parole was established on November 18, 2016, Cournoyer J. ought to have fixed it at the minimum of 10 years when he would be 76 (instead of 86), leaving it then to the Parole Board to determine whether he should be released from detention and if so on what conditions. The Crown opposes this submission, essentially for the same reasons it seeks to increase Mr. Bain’s parole ineligibility from 20 years to 25 years (at which time Mr.

Bain would be 91). [ 29 ] Cournoyer J. did not specifically address Mr. Bain’s submission in this regard. [ 30 ] To be sure, there is case-law from this Court, other courts in Quebec and elsewhere in Canada holding that the advanced age of an offender may be an appropriate factor in the sentencing process depending on many circumstances, including poor health. None of them, however, is a case involving culpable homicide; [10] nor has Mr. Bain brought any such case involving a second-degree murder to the Court’s attention. [ 31 ] The Crown’s reaction is that Mr.

Bain should not be entitled to what amounts to a discount simply because he chose to commit the offence at a time when he was four days shy of his 62 nd birthday. [ 32 ] In R. v. Turcotte , [11] the Court recently had the occasion to review the applicable sentencing principles in a case of second- degree murder in which the accused had also argued unsuccessfully, like Mr. Bain, that he should instead be found not guilty by reason of mental disorder.

In that case, the accused had knifed his two young children to death in the context of an acrimonious marital separation. [ 33 ] In reaching its conclusion to dismiss the accused’s appeal from the sentencing judgment that had established his period of ineligibility at 17 years, the Court cited the following extract from the reasons of Wagner, J. in Lacasse : [12] The role of intermediate appellate courts in sentencing has evolved since 1997.

In Lacasse , the Supreme Court of Canada took the opportunity “to clarify the standard on the basis of which an appellate court may intervene and vary a sentence imposed by a trial judge.” That standard is a demanding one, as the reasons of Wagner, J. (as he then was) for the majority show, and does not leave much margin for appellate intervention : [11] This Court has on many occasions noted the importance of giving wide latitude to sentencing judges.

Since they have, inter alia , the advantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code [11] This Court has on many occasions noted the importance of giving wide latitude to sentencing judges.

Since they have, inter alia , the advantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code in this regard . The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention.

Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit . [12] In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be.

In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice. Moreover, if appellate courts intervene without deference to vary sentences that they consider too lenient or too harsh, their interventions could undermine the credibility of the system and the authority of trial courts .

With respect, I am of the opinion that the Court of Appeal was wrong in this case to reduce the sentence imposed by the trial judge by basing its intervention on the fact that he had departed from the established sentencing range. [Emphasis added.] [ 34 ] Those comments apply with equal force to both Mr. Bain’s appeal and the Crown’s cross-appeal. Obviously, a different judge might have reached a different conclusion than that of the sentencing judge in Mr. Bain’s case, whether to have reduced or increased the period of his ineligibility for parole.

In our view, however, the demanding criteria that circumscribe when an appellate court can intervene to modify the period of ineligibility of an offender convicted of second degree murder do not allow the Court to accede either to Mr. Bain’s appeal or that of the Crown. [ 35 ] To respond to the fundamental question identified in Turcotte , [13] in this case the 20 year period of ineligibility for parole has not been shown “to deviate from the proper sentencing range” in light of the circumstances of the offence of second degree murder and the three counts of attempted murder for which Mr.

Bain was properly convicted. Moreover, it has not been shown that the sentencing judge committed “an error of law of law or principle that had an impact on the sentence in light of the gravity of the crime and (Mr. Bain’

s) degree of responsibility.” [ 36 ] We would therefore affirm the sentencing judgment of Cournoyer J. and declare Mr. Bain’s unperfected application for leave to

appeal the sentence insofar as it relates to the three attempted murder counts to now be moot. ALLAN R. HILTON, J.A. MARIE-JOSÉE HOGUE, J.A. PATRICK HEALY, J.A. JOINT REASONS OF DUVAL HESLER, C.J.Q. AND LEVESQUE, J.A. [ 37 ] As observed by our colleague Hilton in Turcotte v. R ., “Appellate courts are rarely called upon to adjudicate appeals that challenge the duration of the period of ineligibility for parole of an offender convicted of second degree murder.” [14] [ 38 ] Yet this is another such appeal. [ 39 ] A jury acquitted Mr.

Bain of first-degree murder but found him guilty of second-degree murder and attempted murder. He was sentenced to imprisonment for life and the judge imposed a period of twenty years of parole ineligibility on the count of murder. [15] In his reasons the judge emphasized the political context of these offences as the principal basis for a period of ineligibility of twenty years. [ 40 ] The judge omitted to ask the jurors whether they wished to make a recommendation concerning the issue of parole ineligibility. [16] This was clearly an error of law, as conceded by the prosecution on this appeal.

The jury was discharged before anything could be done to correct this error. [ 41 ] Mr. Bain appeals from the judge’s decision concerning the period of parole ineligibility on the ground that it is excessive. The prosecution appeals on the ground that the judge erred in not imposing a period of ineligibility of twenty-five years and did so because he was constrained by three previous decisions of this court.

The prosecution argues further that the offences in this case are among the worst in modern Canadian history. [ 42 ] While we agree with our colleagues Hilton, Hogue and Healy that the intervention of the Court of Appeal is not warranted here, we do not adhere to their reasons in reaching that conclusion. [ 43 ] It is worth mentioning, at this stage, that the reason this appeal of a sentence was heard by a panel of five members of the Court is that the prosecution made a motion for a larger panel, announcing that it would ask the Court to reverse three of its previous decisions regarding the period of ineligibility for parole: R. v.

Lemieux , R. v. Bainbridge and Poissant v.

R . [17] [ 44 ] In Lemieux , Proulx, J., writing for the Court, stated the following : On ne saura jamais pourquoi le jury a acquitté l’appelant de meurtre au premier degré mais il est permis de croire que si le jury n’avait retenu que les opinions des experts de la poursuite qui opinaient que l’appelant ne présentait aucun trouble mental, le verdict de meurtre au deuxième degré serait difficile à expliquer. (p. 8) [ 45 ] A sentiment which the trial judge echoed in paragraph 63 of the judgment a quo : [63] In other words, the jury could very well be convinced, given the overwhelming evidence, that Mr.

Bain probably committed a planned and deliberate murder but had a reasonable doubt because of the evidence presented with respect to his mental condition at the time of the commission of the offence. [ 46 ] He added this at paragraph 67: [67] Therefore, the Court must respect the jury’s verdict in acquitting Mr. Bain of first-degree murder. The jury rejected the evidence presented by Dr. Allard and must have accepted the testimony of Dr.

Watts. [ 47 ] Such speculation is no longer allowed (if it ever was) since the decision of the Supreme Court of Canada in R. v Ferguson . [18] [ 48 ] In Bainbridge and Poissant v. R. [19] , the Court decided that the maximum penalty provided by legislation can only be imposed upon the worst of criminals for the worst of crimes. However, these cases no longer constitute a valid precedent regarding this specific issue, having been reversed in R. v. L.M . [20] , R v. Cheddesingh [21] and R. v. Solowan [22] . The concepts of worst offense and worst offender are no longer to be applied.

Rather, the maximum sentence, although exceptional in nature, can be imposed when warranted in light of sentencing principles if circumstances and context so allow. Deference is to be shown to the sentencing judge. [ 49 ] Paradoxically, while arguing for a “reversal” of Bainbridge and Poissant , the prosecution also argues that because of his political motivation, Mr. Bain’s crime is the worst crime possible.

[ 50 ] In any event, as we have seen, it is unnecessary on this occasion for the Court to reconsider the previous decisions that the prosecution invited this panel to reverse, such reversal, and any additional clarification needed, having already been provided by the subsequent case law of the Supreme Court of Canada. [ 51 ] Now to the case at hand. [ 52 ] It is a fundamental principle that the sentence must fit a jury’s verdict but it is also prohibited that a judge, in pronouncing the sentence, attempt to reconstruct the logical reasoning of the jury, whose reasons, as we well know, are subject to deliberative secrecy. [ 53 ] McLachlin C.J. stated the principle thus : First, the trial judge erred in attempting to reconstruct the logical reasoning of the jury.

The law holds that the trial judge must not do this, and for good reason. Jurors may arrive at a unanimous verdict for different reasons and on different theories of the case. It is speculative and artificial to attribute a single set of factual findings to the jury, unless it is clear that the jury must unanimously have found those facts.

Where any ambiguity on this exists, the trial judge should consider the evidence and make his or her own findings of fact consistent with the evidence and the jury’s findings . [23] (Emphasis added) [ 54 ] In appeal, the prosecution argues that the judge below erred in speculating on the acquittal of first degree murder of Mr. Bain. Again paradoxically, it does not acknowledge that the judge was also speculating on the jury’s reasoning when he states, at par. 67, that the jury rejected Dr. Allard’s evidence and accepted that of Dr.

Watts. [ 55 ] Before going any further, it seems appropriate at this time to recall the case of Lortie [24] . Lortie pleaded guilty to six counts of second degree murder. The connection to a political motivation seems inescapable. Yet his period of ineligibility for parole was set by the sentencing judge at ten years. The appeal of that sentence was dismissed by the Court. [ 56 ] In this case, without expounding on the topic, the trial judge said he did not feel bound by the Lortie decision because it preceded Shropshire [25] .

In our opinion, he made short shrift of a reasonable precedent. [ 57 ] To sum up, in the present appeal, there would exist, in our opinion, solid legal grounds for intervention by the Court. [ 58 ] First, the error in failing to ask the members of the jury if they wished to make a recommendation regarding the period of ineligibility for parole deprived the judge of information that might materially have affected the exercise of his discretion.

We emphasize that such recommendations do not have to be those of the entire jury but can be those of individual jury members, each of whom can opt to make or to decline to make a recommendation. In addition, those recommendations, obviously, may vary from one jury member to the next. [ 59 ] Generally speaking, it cannot be said that the judge’s error is inconsequential without eroding the institutional significance of the jury.

In addition, in a case such as this one, where both the judge and the parties have engaged in some speculation as to the reasoning behind the verdict, those recommendations could have had a particularly elucidating effect, had they been requested and made. And even had no such recommendation resulted from the exercise, that, too, may have been helpful. [ 60 ] In any event,

article 745.2 Cr.C . is clear that in the case of a second degree murder verdict, “the judge presiding at the trial shall, before discharging the jury , put to them the following question: You have found the accused guilty of second degree murder and the law requires that I now pronounce a sentence of imprisonment for life against the accused. Do you wish to make any recommendation with respect to the number of years that the accused must serve before the accused is eligible for release on parole?

You are not required to make any recommendation but if you do, your recommendation will be considered by me when I am determining whether I should substitute for the ten year period, which the law would otherwise require the accused to serve before the accused is eligible to be considered for release on parole, a number of years that is more than ten but not more than twenty-five.” [ 61 ] As this was not done, and the judge therefore pronounced his sentence on the basis of an incomplete record, we do not believe, as previously mentioned, that his sentence deserves the usual deference.

As a consequence, the Court is entitled to review the judgment a quo with greater scrutiny. [ 62 ] As a result, we feel compelled to mention that the first judge did not really address the fairly extensive evidence concerning Mr. Bain’s character, circumstances and personal history. Here was an accused who had been a good citizen, regularly employed throughout his life. At the time of the offences, he was being prescribed psychotropic drugs for “depression”. A subsequent psychiatric investigation revealed “clues of an underlying delusional system.” [ 63 ] To put it bluntly, that investigation found that Mr.

Bain believed that God was giving him ideas about what to do to help others and controlled his actions. [ 64 ] Since Shropshire [26] the jurisprudence is clear that the reasons for extending the period of parole ineligibility must have a firm evidentiary foundation and that the reasons for extending that period, and thus enhancing the severity of the final disposition, must be clearly and thoroughly expressed. [27] Such was not the case here. [ 65 ] Again, we emphasize that the failure to question the jury does not comply with a mandatory requirement imposed by the law and is thus an error of principle which calls for a more stringent review of the sentencing judgment.

It is worth repeating that Mr. Bain had no prior convictions and that he was successfully employed throughout his working career. The evidence showed that he developed serious psychological problems in 2009, which led to his being prescribed psychotropic drugs which in his case would seem to have caused serious deleterious side effects. [ 66 ] In addition, in the absence of a more complete analysis in the judgment a quo about the offender and his specific circumstances, one can only conclude that the judgment below does not allow an examination of relevant factors that are specifically identified as such in

section 745.4 of the Criminal Code . Apart from the seriousness of the offences, those factors were simply not dealt with. The political

context of the offences committed by Mr. Bain, while certainly important, was given an exaggerated emphasis by the first judge. That ground alone, in our opinion, would warrant the intervention of the Court [28] as the judge clearly laid undue stress on an aggravating factor, practically to the exclusion of other relevant factors. [ 67 ] Indeed it is all the more important to ask for the jury’s recommendation as to the period of parole ineligibility today because the provisions of what has been called the “faint hope clause” were removed in 2011 for murders committed thereafter.

There is no need not remind the reader that the crimes in this case were committed in 2012. Before then, the jury was “a conduit of the executive power of mercy, delegated to the community.” [29] A jury, after the first fifteen years of a life sentence were served, could declare the accused eligible for parole. This provided an opportunity for clemency that could mitigate harsh sentences in cases deserving of such clemency.

That remedy no longer being available, and automatic executive review of murder sentences having ceased, it is all the more important, we repeat, to canvas the jury members as the law provides when they arrive at a verdict of second degree murder. [ 68 ] In any case, the reasons provided for the period of parole ineligibility by the first judge are insufficient, in the case at hand, to explain or justify the specific conclusion of twenty years of ineligibility, by which time Mr.

Bain will have reached 86 years of age, which is beyond applicable current longevity tables and certainly eliminates the possibility of any rehabilitation in his case. Again, that fact made possible recommendation(

s) by the jurors, in the circumstances, even more desirable. [ 69 ] We also find it disconcerting that no consideration at all was given to the prospect of rehabilitation in a man such as Mr. Bain, receiving appropriate treatment henceforth, and in this respect wish to quote the Fauteux report [30] . Some may argue that it is outdated. Allow us to state that it is ageless in its wisdom: For any prisoner there should always be the expectation that, in the foreseeable future, confinement will end.

There must always be a hope, no matter what the age of the prisoner may be, that he will once again have the opportunity to resume his place in society (p. 47) […] Prisoners should have some hope that imprisonment will end and thereby have some incentive for reformation and rehabilitation (p. 49). [ 70 ] We also find it regrettable that the sentence below was solely centered on the political nature of the accusations and hence on the need for deterrence.

It is well known that deterrence in a case such as this one, where the accused does not resemble the average citizen in terms of his apprehension of reality, simply does not work. [ 71 ] Indeed, the effect of dissuasion is a controversial issue. [31] Whether it has any effect at all is at best doubtful. Our colleague Vauclair and his co-author Desjardins note that expert opinion on the topic ranges from great prudence to profound scepticism. [32] Its uncertain character makes it essential to apply the principle of dissuasion or deterrence with caution.

Generally speaking, it has much more impact on ordinary, sane individuals, with a lot at stake, than on those who, by reason of their emotional or psychological condition, are unable to adequately assess the consequences of their actions. [33] [ 72 ] A just sentence takes into account not only the seriousness of the crime, but also the degree of moral culpability of its author. That degree is necessarily affected by the mental state of the latter: The gravity of the offence is not, of course, lessened by the personal circumstances of the offender.

However, the mental disorder diminishes the degree of responsibility of the offender. Impaired reasoning, delusional disorders, and like mental conditions distinguish those afflicted from the ordinary offender who is fully accountable for his or her conduct […]. [34] [ 73 ] We regret to note that the sentence under appeal is, for all intents and purposes, practically silent on such considerations. [ 74 ] We do wish to emphasize as well that the sentence for murder is always a life sentence.

The parole board will only grant parole where it is satisfied that the convicted person is fit for release, upon such conditions as the board determines. As mentioned by our colleague Hilton in Turcotte , the truth is that all convicted murderers are sentenced to imprisonment for the rest of their life [35] .

Parole is a different concern, centered on whether the convicted individual represents an ongoing threat to society and on his prospects for rehabilitation. [ 75 ] Despite finding that the degree of deference owed by this court to the sentence is greatly diminished in this case, and while we are satisfied, in the absence of a more complete analysis by the first judge, that the record before us does not on its face justify a period of parole ineligibility of more than fifteen years, we are bound to acknowledge that the sentence is not manifestly unfit, as demanded by the Supreme Court in Lacasse [36] , in view of the gravity of the offenses. [ 76 ] Indeed, the failings described above above make it particularly difficult to decide on the appropriate course of action in this appeal.

To sum up, the legislators have decided that s. 745.6 Cr. C. will no longer be available for murders committed after 2011. A shortening of the period of ineligibility for parole by a jury is therefore unavailable to Mr. Bain. The trial judge did not, as the Supreme Court of Canada in Ferguson [37] directed him, proceed to do his own analysis of the evidence and deliver his own conclusions of fact, those of the jury being, by definition, unavailable.

And, most importantly, the members of the jury were not given the opportunity of a recommendation, that mistake being made unredeemable by what took place in first instance. Regrettably, this Court lacks the information needed for it to modify the sentence and set a different ineligibility period, unless it too indulge in suppositions concerning the reasoning of the jury in arriving at its verdict. Mr. Bain’s appeal must therefore be dismissed. [ 77 ] We are equally satisfied that the prosecution’s appeal must fail.

The information in the record is plainly insufficient to justify the imposition of a period of parole ineligibility of twenty-five year, as though Mr. Bain had been convicted of first-degree murder, a crime of which the jury acquitted him. [ 78 ] We therefore propose that the Court dismiss the appellant’s appeal, declare his application for leave to appeal the sentence on the other counts for which he was convicted to be moot and dismiss the respondent’s appeal.

NICOLE DUVAL HESLER, C.J.Q. JACQUES J. LEVESQUE, J.A.