Her Majesty The Queen v. Attorney General of Quebec, 2022 SCC 23

SUPREME COURT OF CANADA Citation: R. v.

Bissonnette, 2022 SCC 23 Appeal Heard: March 24, 2022 Judgment Rendered: May 27, 2022 Docket: 39544 Between: Her Majesty The Queen and Attorney General of Quebec Appellants and Alexandre Bissonnette Respondent - and - Attorney General of Canada, Attorney General of Ontario, Attorney General of Nova Scotia, Attorney General of British Columbia, Attorney General of Alberta, Association des avocats de la défense de Montréal-Laval-Longueuil, Queen’s Prison Law Clinic, Toronto Police Association, Canadian Police Association, Karen Fraser, Jennifer Sweet, Nicole Sweet, Kim Sweet, John Sweet, J.

Robert Sweet, Charles Sweet, Patricia Corcoran, Ann Parker, Ted Baylis, Sharon Baylis, Cory Baylis, Michael Leone, Doug French, Donna French, Deborah Mahaffy, Observatory on National Security Measures, Independent Criminal Defence Advocacy Society, Canadian Prison Law Association, National Council of Canadian Muslims, Canadian Civil Liberties Association, British Columbia Civil Liberties Association and Canadian Association of Chiefs of Police Interveners Official English Translation Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

Reasons for Judgment: (paras. 1 to 148) Wagner C.J. (Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring) Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports .

Her Majesty The Queen and Attorney General of Quebec Appellants v. Alexandre Bissonnette Respondent and Attorney General of Canada, Attorney General of Ontario, Attorney General of Nova Scotia, Attorney General of British Columbia, Attorney General of Alberta, Association des avocats de la défense de Montréal-Laval-Longueuil, Queen’s Prison Law Clinic, Toronto Police Association, Canadian Police Association, Karen Fraser, Jennifer Sweet, Nicole Sweet, Kim Sweet, John Sweet, J.

Robert Sweet, Charles Sweet, Patricia Corcoran, Ann Parker, Ted Baylis, Sharon Baylis, Cory Baylis, Michael Leone, Doug French, Donna French, Deborah Mahaffy, Observatory on National Security Measures, Independent Criminal Defence Advocacy Society, Canadian Prison Law Association, National Council of Canadian Muslims, Canadian Civil Liberties Association,

British Columbia Civil Liberties Association and Canadian Association of Chiefs of Police Interveners Indexed as: R. v. Bissonnette 2022 SCC 23 File No.: 39544. 2022: March 24; 2022: May 27. Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. on appeal from the court of appeal for quebec Constitutional law — Charter of Rights — Cruel and unusual treatment or punishment — Punishment that is cruel and unusual by nature — Remedy —

Section 745.51 of Criminal Code authorizing imposition of consecutive 25-year parole ineligibility periods in cases involving multiple first degree murders — Whether s. 745.51 infringes s. 12 of Charter , which guarantees right not to be subjected to cruel and unusual treatment or punishment — Appropriate remedy if s. 12 infringed — Constitution Act, 1982, s. 52(1) — Canadian Charter of Rights and Freedoms, s. 12 — Criminal Code, R.S.C. 1985, c. C-46, s. 745.51 . On January 29, 2017, 46 people were gathered in the Great Mosque of Québec for evening prayer.

B burst in and, armed with a semi-automatic rifle and a pistol, opened fire on the worshippers, causing the death of 6 people and seriously injuring 5 others. B pleaded guilty to the 12 charges laid against him, including 6 counts of first degree murder. An accused who is convicted of first degree murder will receive a minimum sentence of imprisonment for life and will be eligible for parole only after serving an ineligibility period of 25 years. B therefore received that sentence automatically. The Crown also asked that s. 745.51 of the Criminal Code be applied.

This provision authorizes a court to order that the periods without eligibility for parole for each murder conviction be served consecutively rather than concurrently. In the context of first degree murders, the application of this provision allows a court to add up parole ineligibility periods of 25 years for each murder. B challenged the constitutionality of s. 745.51.

The trial judge held that this provision infringed the right not to be subjected to any cruel and unusual treatment or punishment and the right to liberty and security of the person guaranteed to B by s. 12 and s. 7 of the Charter , respectively, and that the provision could not be saved under s. 1 . To remedy the unconstitutionality of the provision, the trial judge applied the technique of reading in and interpreted s. 745.51 as granting courts a discretion to choose the length of the additional ineligibility period to impose on an offender.

He ordered that B serve a total ineligibility period of 40 years before being able to apply for parole. The Court of Appeal allowed B’s appeal and declared s. 745.51 invalid and unconstitutional on the basis that it was contrary to ss. 12 and 7 of the Charter . It noted that the declaration of unconstitutionality was to take effect immediately. It found that reading in was inappropriate, and it therefore struck down the unconstitutional provision.

It accordingly ordered that B serve a 25-year parole ineligibility period on each count before being able to apply for parole and that these periods be served concurrently. Held : The appeal should be dismissed.

Section 745.51 of the Criminal Code is contrary to s. 12 of the Charter and is not saved under s. 1 . It must be declared to be of no force or effect immediately under s. 52(1) of the Constitution Act, 1982 , and the declaration must strike down the impugned provision retroactively to the date it was enacted. In the case of multiple first degree murders, s. 745.51 authorizes the imposition of sentences of imprisonment that effectively deprive all offenders who receive such sentences of a realistic possibility of being granted parole before they die.

Such sentences are degrading in nature and thus incompatible with human dignity, because they deny offenders any possibility of reintegration into society, which presupposes, definitively and irreversibly, that they lack the capacity to reform and re-enter society. B’s total parole ineligibility period must therefore be 25 years, in accordance with the law as it existed prior to the enactment of s. 745.51 .

Section 12 of the Charter guarantees the right not to be subjected to any cruel and unusual treatment or punishment. In essence, the purpose of s. 12 of the Charter is to protect human dignity and ensure respect for the inherent worth of each individual. The protection afforded by s. 12 has two prongs.

Section 12 protects, first, against the imposition of a punishment that is so excessive as to be incompatible with human dignity and, second, against the imposition of a punishment that is intrinsically incompatible with human dignity. The first prong of the s. 12 guarantee relates to punishment whose effect is grossly disproportionate to what would have been appropriate.

The second prong of the protection afforded by s. 12 concerns a narrow class of punishments that are cruel and unusual by nature; these punishments will always be grossly disproportionate because they are intrinsically incompatible with human dignity. A punishment is cruel and unusual by nature if the court is convinced that, having regard to its nature and effects, it could never be imposed in a manner consonant with human dignity in the Canadian criminal context.

To determine whether a punishment is intrinsically incompatible with human dignity, the court must determine whether the punishment is, by its very nature, degrading or dehumanizing. The effects that the punishment may have on all offenders on whom it is imposed can also inform the court and provide support for its analysis of the nature of the punishment. A punishment that is cruel and unusual by nature must always be excluded from the arsenal of punishments available to the state.

It follows that the mere possibility that a punishment that is cruel and unusual by nature may be imposed is enough to infringe s. 12 of the Charter . Where both prongs of the protection of s. 12 are in issue in the same case, the analysis of the nature of the punishment must precede that of gross disproportionality. If the punishment that might be imposed is cruel and unusual by nature, and hence intrinsically incompatible with human dignity, it will be pointless to consider whether the punishment is grossly disproportionate in a given case, because it will by definition always be grossly disproportionate.

The parole ineligibility period constitutes punishment for the purposes of s. 12. State action is considered to be punishment

for the purposes of s. 12 if it is a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liablein respect of a particular offence, and either it is imposed in furtherance of the purpose and principles of sentencing, or it has a significantimpact on an offender’s liberty or security interests. The length of parole ineligibility is part of an offender’s punishment given that it isa consequence of conviction and that it has a significant impact on the offender’s interests in liberty and security of the person.

It alsofurthers the objectives of denunciation and deterrence that underlie a sentence. The imposition of consecutive parole ineligibility periodsauthorized by s. 745.51 therefore constitutes punishment, the constitutionality of which must be determined under s. 12 of the Charter.

Section 745.51 effectively authorizes the imposition of a sentence of imprisonment for life without a realistic possibility ofparole. This punishment is, by its very nature, intrinsically incompatible with human dignity.

It is degrading in nature in that itpresupposes at the time of its imposition that the offender is beyond redemption and lacks the moral autonomy needed for rehabilitation.Although Parliament has latitude to establish sentences whose severity expresses society’s condemnation of the offence committed, itmay not prescribe a sentence that deprives every offender on whom it is imposed of any realistic possibility of parole from the outset. Toensure respect for human dignity, Parliament must leave a door open for rehabilitation, even in cases where this objective is of minimalimportance.

This objective is intimately linked to human dignity in that it conveys the conviction that every individual is capable ofrepenting and re-entering society. The intent here is not to have the objective of rehabilitation prevail over all the others, but rather topreserve a certain place for it in a penal system based on respect for the inherent dignity of every individual, including the vilest ofcriminals.

Where the offence of first degree murder is concerned, rehabilitation is already subordinate to the objectives of denunciationand deterrence, as can be seen from the severity of the mandatory minimum sentence for this offence. The objectives of denunciation and deterrence are not better served by the imposition of excessive sentences. Beyond acertain threshold, these objectives lose all of their functional value, especially when the sentence far exceeds human life expectancy.

Theimposition of excessive sentences that fulfil no function does nothing more than bring the administration of justice into disrepute andundermine public confidence in the rationality and fairness of the criminal justice system. A punishment that can never be carried out iscontrary to the fundamental values of Canadian society. The effects of a sentence of imprisonment for life without a realistic possibility of parole support the conclusion that it isdegrading in nature and thus intrinsically incompatible with human dignity.

Offenders who have no realistic possibility of parole aredeprived of any incentive to reform, and the psychological consequences flowing from this sentence are in some respects comparable tothose experienced by inmates on death row, since only death will end their incarceration.

For offenders who are sentenced toimprisonment for life without a realistic possibility of parole, the feeling of leading a monotonous, futile existence in isolation from theirloved ones and from the outside world is very hard to tolerate, so much so that some prefer to put an end to their lives rather than dieslowly and endure suffering that seems endless to them. Furthermore, in international and comparative law, a sentence that deprivesoffenders of any possibility of being released is generally considered to be incompatible with human dignity.

The royal prerogative of mercy, which gives Her Majesty the Queen an absolute discretion to grant a remission of sentenceto any individual sentenced by a court, cannot save the impugned provision. The royal prerogative of mercy cannot be considered a truesentence review mechanism, because it is exercised only in exceptional circumstances. It is at best a release mechanism based oncompassion and on the existence of humanitarian grounds, which means that individuals suffering the normal consequences of a properlyimposed sentence are unlikely to obtain such a pardon.

The existence of the royal prerogative of mercy therefore creates no realisticpossibility of parole for offenders serving a sentence of imprisonment for life for which there is no other review mechanism. The infringement of s. 12 of the Charter is not justified under s. 1. In order to justify an infringement of a Charter right, thestate is required to show that the impugned law addresses a pressing and substantial objective and that the means chosen to achieve thatobjective are proportional to it.

In this case, since no arguments were made concerning the justification for the impugned provision, thestate did not discharge the onus resting on it. The appropriate remedy in this case is a declaration that s. 745.51 is of no force or effect immediately pursuant to s. 52(1) ofthe Constitution Act, 1982, under which any law that is inconsistent with the provisions of the Constitution can be declared to be of noforce or effect to the extent of the inconsistency. The technique of reading in is inappropriate in the circumstances.

This technique allowsa court to extend the reach of a statute so that it includes what was wrongly excluded from it. When a court applies this interpretivetechnique, it does so on the assumption that had Parliament been aware of the provision’s constitutional defect, it would likely havepassed it with the alterations made by the court. In this case, however, the imposition of consecutive 25-year ineligibility periods isdirectly related to Parliament’s objective in enacting s. 745.51, as shown by the words of the provision and the parliamentary debate.

Thewords of s. 745.51 are clear as regards the length of the ineligibility periods that a court may make consecutive: for first degree murder,these periods must be 25 years under s. 745(

a) of the Criminal Code. As well, the parliamentary debate clearly shows that Parliament’sintention was to authorize courts to impose consecutive ineligibility periods in blocks of 25 years. In fact, Parliament specifically rejecteda proposed amendment that would have given courts a discretion to determine the total length of the parole ineligibility period. It istherefore impossible to conclude that Parliament would likely have passed the impugned provision with the modifications that wouldresult from applying the technique of reading in as the trial judge did.

The declaration of invalidity must have immediate effect given the seriousness of the infringement of the right of everyindividual not to be subjected to cruel and unusual punishment. The declaration must also strike down the impugned provisionretroactively to the date it was enacted, in view of the continuing nature of the infringement of the right guaranteed by s. 12 of theCharter. The applicable law is therefore the law that existed prior to that date. The 25-year parole ineligibility periods imposed on B foreach of the 6 counts of first degree murder must thus be served concurrently.

As a result, B may not apply for parole until he has serveda total ineligibility period of 25 years, in accordance with s. 745(a). The Parole Board of Canada remains the ultimate arbiter of whetherB can be released on parole at the end of the ineligibility period. Cases Cited Applied: R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; Schachterv. Canada, (SCC), [1992] 2 S.C.R. 679; considered: R. v. Luxton, (SCC), [1990] 2 S.C.R. 711;referred to: Sherman Estate v. Donovan, 2021 SCC 25; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; Canada (Attorney General) v.

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Raymond , for the appellant Her Majesty The Queen. Jean-François Paré , Sylvain Leboeuf , Julie Dassylva and Stéphanie Quirion-Cantin , for the appellant the Attorney General of Quebec. Charles-Olivier Gosselin and Nicolas Déry , for the respondent. Ian Demers , for the intervener the Attorney General of Canada. Milan Rupic and Katie Doherty , for the intervener the Attorney General of Ontario. Written submissions only by Glenn Hubbard , for the intervener the Attorney General of Nova Scotia. Micah B. Rankin , for the intervener the Attorney General of British Columbia.

Written submissions only by Christine Rideout , c.r. , for the intervener the Attorney General of Alberta. Juliette Vani , for the intervener Association des avocats de la défense de Montréal-Laval-Longueuil. Erin Dann and Paul Socka , for the intervener the Queen’s Prison Law Clinic. Timothy S. B. Danson and Marjan Delavar , for the interveners the Toronto Police Association, the Canadian Police Association, Karen Fraser, Jennifer Sweet, Nicole Sweet, Kim Sweet, John Sweet, J.

Robert Sweet, Charles Sweet, Patricia Corcoran, Ann Parker, Ted Baylis, Sharon Baylis, Cory Baylis, Michael Leone, Doug French, Donna French and Deborah Mahaffy.

Stéphane Beaulac , for the intervener the Observatory on National Security Measures. Eric Purtzki and Alix Tolliday , for the intervener the Independent Criminal Defence Advocacy Society. Simon Borys , for the intervener the Canadian Prison Law Association. Sameha Omer and Daniel Kuhlen , for the intervener the National Council of Canadian Muslims. Stephanie DiGiuseppe and Harshi Mann , for the intervener the Canadian Civil Liberties Association. Danielle Robitaille and Carly Peddle , for the intervener the British Columbia Civil Liberties Association.

Mathieu St-Germain and Jason Fraser , for the intervener the Canadian Association of Chiefs of Police. TABLE OF CONTENTS Paragraph I. Introduction 1 II. Background and Judicial History 10 A. Facts 10 B. Quebec Superior Court, 2019 QCCS 354 (Huot J.) 13 C. Quebec Court of Appeal, 2020 QCCA 1585 , 405 C.C.C. (3d) 524 (Doyon, Gagnon and Bélanger JJ.A.) 20 III. Issues 25 IV. Analysis 27 A. History of

Section 745.51 Cr. C. 27 B. The Parole System in Canada 37 C. Sentencing Objectives in Canadian Law 45 D. The Right Under

Section 12 of the Charter Not to Be Subjected to Cruel and Unusual Punishment 54

(1) The Parole Ineligibility Period Constitutes Punishment 56

(2) The Two Prongs of the Right Not to Be Subjected to Cruel and Unusual Punishment 59 E. Does

Section 745.51 Cr. C. Infringe

Section 12 of the Charter ? 71

(1) S cope of

Section 745.51 Cr. C. 74

(2) Imprisonment for Life Without a Realistic Possibility of Parole Constitutes Punishment That Is Cruel and Unusual by Nature 81 (

a) Examination of the Nature of a Sentence of Imprisonment for Life Without a Realistic Possibility of Parole 82 (

b) Effects of a Sentence of Imprisonment for Life Without a Realistic Possibility of Parole 96 (

c) Dignity and Imprisonment for Life Without the Possibility of Parole: International and Comparative Law Perspectives 98 (

d) Does the Judicial Discretion to Impose Consecutive Parole Ineligibility Periods Affect the Constitutionality of the Impugned Provision? 109 (

e) Can the Royal Prerogative of Mercy Save the Impugned Provision? 112 F. Is the Infringement of

Section 12 of the Charter Justified Under

Section 1 of the Charter ? 120 G. Appropriate Remedy 122 V. Conclusion 139 English version of the judgment of the Court delivered by The Chief Justice — I. Introduction [ 1 ] The crimes committed by the respondent in the Great Mosque of Québec on the fateful day of January 29, 2017 were of unspeakable horror and left deep and agonizing scars in the heart of the Muslim community and of Canadian society as a whole.

We cannot help but feel sympathy for the victims and their loved ones for their irreparable losses and their indescribable pain. [ 2 ] It is in the context of those crimes that this Court must rule on the constitutional limits on the state’s power to punish offenders. The appeal requires us to weigh fundamental values of our society enshrined in the Canadian Charter of Rights and

Freedoms and to reaffirm our commitment to upholding the rights it guarantees to every individual, including the vilest of criminals. [3] More specifically, the question before the Court is whether s. 745.51 of the Criminal Code, R.S.C. 1985, c. C-46(“Cr. C.”), which was introduced in 2011 by the Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act, S.C.2011, c. 5, s. 5, is contrary to ss. 7 and 12 of the Charter. The impugned provision authorizes the imposition of consecutive paroleineligibility periods in cases involving multiple murders.

In the context of first degree murders, the application of this provision allows acourt to impose a sentence of imprisonment without eligibility for parole for a period of 50, 75, 100 or even 150 years. In practice, theexercise of the court’s discretion will inevitably result in imprisonment for life without a realistic possibility of parole for every offenderconcerned who has been convicted of multiple first degree murders.

Such a criminal sentence is one whose severity is without precedentin this country’s history since the abolition of the death penalty and corporal punishment in the 1970s. [4] For the reasons that follow, I conclude that s. 745.51 Cr. C. is contrary to s. 12 of the Charter and is not saved unders. 1. In light of this conclusion, it will not be necessary to consider the alleged infringement of s. 7 of the Charter. [5]

Section 12 of the Charter guarantees the right not to be subjected to cruel and unusual punishment or treatment. Inessence, its purpose is to protect human dignity and ensure respect for the inherent worth of each individual. This Court recentlyaffirmed, albeit in a different context, that human dignity transcends the interests of the individual and concerns society at large(Sherman Estate v. Donovan, 2021 SCC 25, at para. 33). In this sense, the significance of this appeal extends well beyond its particularfacts. [6]

Section 12 of the Charter prohibits the state from imposing a punishment that is grossly disproportionate in relationto the situation of a particular offender and from having recourse to punishments that, by their very nature, are intrinsically incompatiblewith human dignity. [7] The provision challenged in this case allows the imposition of a sentence that falls into this latter category ofpunishments that are cruel and unusual by nature. All offenders subjected to stacked 25-year ineligibility periods under s. 745.51 Cr.

C.are doomed to be incarcerated for the rest of their lives without a realistic possibility of being granted parole. The impugned provision,taken to its extreme, authorizes a court to order an offender to serve an ineligibility period that exceeds the life expectancy of any humanbeing, a sentence so absurd that it would bring the administration of justice into disrepute. [8] A sentence of imprisonment for life without a realistic possibility of parole is intrinsically incompatible with humandignity.

Such a sentence is degrading insofar as it negates, in advance and irreversibly, the penological objective of rehabilitation. Thisobjective is intimately linked to human dignity in that it conveys the conviction that every individual is capable of repenting andre-entering society.

This conclusion that a sentence of imprisonment for life without a realistic possibility of parole is incompatible withhuman dignity is not only reinforced by the effects that such a sentence may have on all offenders on whom it is imposed, but also findssupport in international and comparative law. [9] To ensure respect for the inherent dignity of every individual, s. 12 of the Charter requires that Parliament leave adoor open for rehabilitation, even in cases where this objective is of secondary importance.

In practical terms, this means that everyinmate must have a realistic possibility of applying for parole, at the very least earlier than the expiration of an ineligibility period of 50years, which is the minimum ineligibility period resulting from the exercise of judicial discretion under the impugned provision in casesinvolving first degree murders. II. Background and Judicial History A. Facts [10] Given that these reasons concern the constitutionality of s. 745.51 Cr.

C. and that the resulting principles will apply tomany multiple murder cases, I do not think it would be appropriate to refer at length to the horrible circumstances of this case, whichwere summarized well by the trial judge and widely publicized in the media.

However, out of respect for the victims of this tragedy, itmust be said that hatred, racism, ignorance and Islamophobia were behind the appalling acts committed by the respondent on that fatefulday of January 29, 2017, when he sowed terror and death in the Great Mosque of Québec. [11] Forty-six people, including four children, had gathered in that place of worship for evening prayer. The respondentburst in and, armed with a semi-automatic rifle and a pistol, opened fire on the worshippers.

In less than two minutes, he caused thedeath of six innocent people, Khaled Belkacemi, Ibrahima and Mamadou Tanou Barry, Abdelkrim Hassane, Azzeddine Soufiane andAboubaker Thabti, seriously injured five others and left the survivors of the killings, and the victims’ loved ones, with deep andpermanent psychological scars. [12] On March 26, 2018, the respondent pleaded guilty to the 12 charges laid against him, including 6 counts of firstdegree murder, an indictable offence provided for in ss. 231(2) and 235 Cr. C. As a consequence, he was automatically sentenced toimprisonment for life.

The Crown then asked the court to apply s. 745.51 Cr. C. and sentence the respondent to 6 consecutive paroleineligibility periods of 25 years, for a total of 150 years. The trial judge thus had to determine the length of the parole ineligibility periodto be imposed on the respondent, and also had to rule on the constitutionality of s. 745.51 Cr. C. B. Quebec Superior Court, 2019 QCCS 354 (Huot J.) [13] In particularly detailed reasons, the trial judge held that s. 745.51 Cr. C. infringed ss. 12 and 7 of the Charter andthat it could not be saved under s. 1.

As a remedy for the unconstitutionality of the provision, he applied the technique of reading in andordered the respondent to serve an ineligibility period of 40 years before applying for parole. [14] Before ruling on the constitutionality of the impugned provision, the trial judge first asked [translation] “whetherthere is a factual basis in this case to justify” such a constitutional analysis and concluded that there was (para. 472 ). In hisview, a certain parole ineligibility period had to be served consecutively having regard to the character of the respondent, the nature of

the offences, the circumstances surrounding their commission , and the principles of sentencing. In this case, a period of more than 25 but less than 50 years would be appropriate. The judge noted, however, that s. 745.51 Cr. C. limited his exercise of discretion to the imposition of consecutive periods of 25 years each. He found that, in the circumstances, he had to review the constitutionality of the provision under ss. 7 and 12 of the Charter . [ 15 ] To determine whether s. 745.51 Cr.

C. created a sentence that constituted cruel and unusual punishment within the meaning of s. 12 , the trial judge applied the analytical framework developed in R. v. Nur , 2015 SCC 15 , [2015] 1 S.C.R. 773, although he observed that the impugned provision did not impose a minimum sentence (para. 810). He concluded at the first step of that analysis that, in the absence of the impugned provision, a total parole ineligibility period of between 35 and 42 years would be just and appropriate in this case (para. 843).

At the second step of the analysis, which involves considering the effect of the prescribed sentence on the offender, he found that the imposition of 2 consecutive ineligibility periods of 25 years each would violate the respondent’s s. 12 rights and held that [ translation ] “[s]uch sentences are grossly disproportionate and totally incompatible with human dignity” (para. 980). In his view, Canadian society would consider any sentence that denied the offender a reasonable prospect of conditional release in the last years of his life to be abhorrent and intolerable.

Section 745.51 Cr. C. would therefore result in the imposition of a grossly disproportionate sentence on the respondent and, for this reason, constituted cruel and unusual punishment. [ 16 ] The trial judge then turned to the analysis under s. 7 of the Charter and concluded that the impugned provision was overbroad and had effects that were grossly disproportionate to its objective, thereby infringing the respondent’s liberty and security interests in a manner contrary to the principles of fundamental justice.

In his analysis, he rejected the protection of hope as a principle of fundamental justice but found that fundamental justice does include the protection of human dignity, a principle that s. 745.51 Cr. C. violated. [ 17 ] Regarding s. 1 of the Charter , the judge found that the Crown had not shown that the limits on the s. 7 and 12 rights were reasonable and justified in a free and democratic society. [ 18 ] In the end, the judge noted that the appropriate remedy where a declaration of unconstitutionality is made is generally the invalidity of the legislative provision in question.

However, he found that the impugned provision was substantially constitutional and peripherally problematic, so the defect could be remedied by applying the technique of reading in. In his view, because the violation stemmed from an omission from the provision, the essential conditions for reading in were met in this case. He therefore interpreted s. 745.51 Cr.

C. as granting courts a discretion to choose the length of the additional ineligibility period to impose on an offender, which could be less than 25 years. [ 19 ] The trial judge accordingly imposed on the respondent the mandatory minimum sentence of imprisonment for life for the 6 counts of first degree murder and, applying the technique of reading in to s. 745.51 Cr. C. , ordered that the respondent serve a 25-year parole ineligibility period on each of the first 5 counts of which he had been convicted and that these periods be served concurrently.

For the sixth count, the judge ordered that the respondent serve a minimum period of 15 years before being able to apply for parole and that this period be consecutive to the other periods he had ordered, for a total ineligibility period of 40 years. C. Quebec Court of Appeal, 2020 QCCA 1585 , 405 C.C.C. (3d) 524 (Doyon, Gagnon and Bélanger JJ.A.) [ 20 ] In a unanimous decision, the Court of Appeal allowed the respondent’s appeal, declared s. 745.51 Cr.

C. invalid on the basis that it was contrary to ss. 12 and 7 of the Charter and found that the trial judge had erred by arrogating the discretion to reformulate s. 745.51 Cr. C. and, in so doing, ordering that the respondent serve a parole ineligibility period that had no basis in law. [ 21 ] In its analysis under s. 12 of the Charter , the Court of Appeal began by considering the constitutionality of the provision by looking at various scenarios that might arise as a result of the application of s. 745.51 Cr. C.

It concluded that the imposition of a parole ineligibility period that greatly exceeds the life expectancy of any human being is degrading because of its absurdity, and hence incompatible with human dignity. The Court of Appeal reached the same conclusion regarding the imposition of consecutive ineligibility periods totalling 75 years, an order that is unlikely to be carried out given that the minimum age at which an offender who started a sentence at the age of 18 could apply for parole would be 93.

Likewise, the imposition of a sentence of imprisonment without eligibility for parole for 50 years does not satisfy the fundamental test of proportionality in sentencing. Although the Court of Appeal rejected the argument that loss of hope entails the unconstitutionality of the provision, it expressed the opinion that an individual who is rehabilitated after 25 years in prison must be able to apply for parole; if not, the sentence would have all the attributes of a totally disproportionate sentence.

In the Court of Appeal’s view, the fact that the imposition of consecutive ineligibility periods is discretionary could not save s. 745.51 Cr. C. , because in almost every case the sentence authorized by the

section will be either grossly disproportionate or unacceptable by nature. [ 22 ] Regarding s. 7 of the Charter , the Court of Appeal found that the impugned provision was overbroad and that its effects were disproportionate, as could be seen from the s. 12 analysis. However, the court declined to answer the question whether the protection of human dignity is a principle of fundamental justice. [ 23 ] The possibility of imposing consecutive 25-year periods was not a minimal impairment of the Charter rights and was not justified in a free and democratic society within the meaning of s. 1.

Given the constitutional invalidity of the provision, the Court of Appeal addressed the appropriate remedy and concluded that reading in was inappropriate in this case. The means chosen by Parliament — the fixed periods of 25 years — were so inextricably bound up with the legislative objectives that they could not be disregarded without unduly intruding on the legislative sphere.

In the Court of Appeal’s view, the trial judge had usurped Parliament’s role in interpreting the provision as granting courts a discretion to choose the appropriate parole ineligibility period. [ 24 ] The Court of Appeal accordingly declared s. 745.51 Cr. C. unconstitutional, noting that the declaration was to take effect immediately, and ordered that the respondent serve a 25-year parole ineligibility period on each count and that these periods be served concurrently. III. Issues

[ 25 ] This appeal raises the following issues: 1. Does s. 745.51 Cr. C. infringe s. 12 of the Charter ? 2. Does s. 745.51 Cr. C. infringe s. 7 of the Charter ? 3. If s. 12 or s. 7 is infringed, can the impugned provision be saved under s. 1 of the Charter ? 4. In the event that the impugned provision cannot be saved under s. 1 of the Charter , what is the appropriate remedy? [ 26 ] For the reasons that follow, I am of the view that s. 745.51 Cr. C. infringes s. 12 of the Charter and cannot be saved under s. 1.

In light of this conclusion, there is no need to consider the alleged infringement of s. 7 of the Charter . The provision must be declared to be of no force or effect retroactively to the time it was enacted. IV. Analysis A. History of

Section 745.51 Cr. C. [ 27 ] It is helpful to begin the analysis by outlining the manner in which the treatment of people convicted of murder in Canada has changed over time, since these changes inform our understanding of the impugned provision. [ 28 ] Until 1961, there was no legal classification of types of murder in this country. Any person convicted of murder was sentenced to death, and the sentence was carried out unless the Governor General, acting on the advice of Cabinet, commuted it to life imprisonment.

In actual fact, the royal prerogative of mercy was exercised frequently and operated flexibly at that time (Library of Parliament, Bill S-6: An Act to amend the Criminal Code and another Act , Legislative

Summary 40-3-S6-E, April 30, 2010, at pp. 4-5; Correctional Service of Canada, A review and estimate of time spent in prison by offenders sentenced for murder , November 2002 (online)). [ 29 ] In 1961, Parliament established a distinction between capital murder and non-capital murder. The former, which included murder that was planned and deliberate, was punishable by death by hanging in the case of an offender 18 years of age or older.

The latter, which was similar to second degree murder, was punishable by imprisonment for life ( Act to amend the Criminal Code (Capital Murder) , S.C. 1960-61, c. 44, ss. 1 and 2; Library of Parliament, at pp. 5-6). [ 30 ] From 1961 to 1976, offenders whose sentences had been commuted and those whose crimes fell into the second category — non-capital murder — could apply for parole following a minimum period of incarceration ( Correctional Service of Canada ). [ 31 ] In July 1976, Parliament abolished the death penalty for Criminal Code offences ( Criminal Law Amendment Act (No. 2), 1976 , S.C. 1974-75-76, c. 105 ). [1] As a result of a political compromise, it replaced the death penalty with a mandatory minimum life sentence for the two categories of murder now defined in the Criminal Code : first degree murder and second degree murder.

In the case of second degree murder, the parole ineligibility period varied from 10 to 25 years. For first degree murder, the parole ineligibility period was 25 years without regard to the number of victims. There was no provision at that time concerning the imposition of consecutive ineligibility periods in cases involving multiple murders . [ 32 ] The mandatory 25-year parole ineligibility period for first degree murder was presumably established to satisfy proponents of the death penalty (A. Manson, “The Easy Acceptance of Long Term Confinement in Canada” (1990), 79 C.R. (3d) 265 , at p. 266) .

Indeed, it was particularly severe when compared with the ineligibility periods provided for in other Western countries at the time for similar offences (Manson, at pp. 266-67).

Moreover, from 1961 to 1976, the average time served in prison for the offence of capital murder had been 15.8 years, well below the newly enacted 25-year period of imprisonment (Correctional Service of Canada ) . [ 33 ] When the death penalty was abolished, Parliament also established a right to judicial review of the parole ineligibility period, commonly known as the “faint hope” clause ( Criminal Law Amendment Act (No. 2), 1976 , s. 21) .

This clause allowed persons who had been sentenced to life in prison for first or second degree murder without eligibility for parole for more than 15 years to apply for a review of their parole ineligibility period once they had been incarcerated for at least 15 years. The clause was added to the Criminal Code in the hope of encouraging the rehabilitation of offenders serving long prison sentences and, as a result, of creating a safer prison environment.

As well, it tempered the increased harshness of parole ineligibility periods (Department of Justice Canada, An Analysis of the Use of the Faint Hope Clause (2010), at p. 1; Library of Parliament, at pp. 3-4). [ 34 ] In 1996, Parliament amended the faint hope clause such that, among other things, persons convicted of multiple murders would no longer be able to apply for judicial review (

An Act to amend the Criminal Code (judicial review of parole ineligibility) and another Act , S.C. 1996, c. 34). Then, in 2011, Parliament passed legislation that abolished the clause for all intents and purposes by making it inapplicable to anyone who committed a murder on or after the day on which the legislation came into force ( An Act to amend the Criminal Code and another Act , S.C. 2011, c. 2 ). [ 35 ] The impugned provision was also introduced into the Criminal Code in 2011 ( Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act , s. 5 ). The relevant subsection of s. 745.51 Cr. C. reads as follows: 745.51

(1) At the time of the sentencing under

section 745 of an offender who is convicted of murder and who has already been convicted of one or more other murders, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and the recommendation, if any, made pursuant to

section 745.21, by order, decide that the periods without eligibility for parole for each murder conviction are to be served consecutively. [ 36 ] Given the fact that the impugned provision concerns the imposition of consecutive parole ineligibility periods, a discussion of the parole system is in order. It should be noted, however, that this appeal does not relate to the process by which an

offender may apply for parole at the end of the ineligibility period. B. The Parole System in Canada [37] The parole system involves a process that is independent of and distinct from the sentencing process (Canada(Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392, at para. 1). Before this system was set up in the last century, therewas no general sentence review mechanism in Canada. During the pre-Confederation period, the only relief an offender could obtain wasthe reduction of a prison sentence or commutation of a death sentence by way of the royal prerogative of mercy (D. P. Cole andA.

Manson, Release from Imprisonment: The Law of Sentencing, Parole and Judicial Review (1990), at p. 159). [38] In 1868, The Penitentiary Act of 1868, S.C. 1868, c. 75, s. 62, introduced a sentence remission mechanism thatenabled prisoners to obtain a reduction in the length of their sentence upon proof of good behaviour (Cole and Manson, at p. 163).

But itwas not until 1899 that the first administrative parole mechanism came into existence through the enactment of what was known as theTicket of Leave Act (An Act to provide for the Conditional Liberation of Penitentiary Convicts, S.C. 1899, c. 49), under which prisonerswho met the eligibility criteria could be conditionally released (Cole and Manson, at pp. 164-66). [39] In the 1950s, Parliament appointed an advisory committee to inquire into the use of the royal prerogative of mercy andinto the parole system (Department of Justice Canada, Report of a Committee Appointed to Inquire Into the Principles and ProceduresFollowed in the Remission Service of the Department of Justice of Canada (1956) (“Fauteux Report”)).

The committee made itsrecommendations in 1956, and the most important of them were implemented in 1958 through the enactment of the first modern parolelegislation, the Parole Act, S.C. 1958, c. 38. That Act created an independent agency, now known as the Parole Board of Canada(“Board”), that had the power to review and vary conditions for release. Major amendments were made to the Parole Act in 1977, theyear after the death penalty was abolished. The Board’s role and functions were expanded at that time (Criminal Law Amendment Act,1977, S.C. 1976-1977, c. 53).

Finally, the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“Conditional Release Act”), waspassed in 1992 to replace, among others, the Parole Act. The Conditional Release Act defines the purpose of and principles underlyingconditional release, and gives particular prominence to the protection of society by making it the paramount consideration. [40] The Board is an independent administrative tribunal whose primary role is to make decisions on conditional release(Conditional Release Act, ss. 103 and 107).

It has exclusive jurisdiction to grant day parole and full parole to persons serving a sentenceof two years or more in Canada (ss. 122 and 123(1)). Offenders with fixed-term sentences are generally eligible to apply for full paroleafter serving the lesser of one third of their sentence and seven years (s. 120(1)). That being said, offenders who have been convicted offirst or second degree murder are not eligible for full parole until they have served 25 years or 10 to 25 years, respectively, of theirsentence (s. 745(

a) and (

c) Cr. C.). [41] There is no guarantee that offenders will be granted parole when their ineligibility period expires (R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, at para. 34; M. E. Campbell and D. Cole, “Sentencing and Parole for Persons Convicted ofMurder”, in D. Cole and J. Roberts, eds., Sentencing in Canada: Essays in Law, Policy and Practice (2020), 183, at pp. 185-87).Offenders must prove to the Board that they no longer represent a danger to society and that it is therefore no longer necessary to keepthem in custody (Conditional Release Act, s. 102).

Parole is a statutory privilege and not a right (Nur, at para. 98). [42] The Board exercises a discretion when it makes a decision with respect to parole. In exercising that discretion, theBoard is guided by its purpose: “to contribute to the maintenance of a just, peaceful and safe society by means of decisions on the timingand conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law-abidingcitizens” (Conditional Release Act, s. 100; see also Nur, at para. 98).

The Conditional Release Act’s primary emphasis is on protectingthe public (see R. v. Zinck, 2003 SCC 6, [2003] 1 S.C.R. 41, at para. 19), and since 2012 this concern has been formally recognized asthe paramount consideration in decisions on release (Safe Streets and Communities Act, S.C. 2012, c. 1; Conditional Release Act,s. 100.1). [43] The Board’s broad discretion means that it may attach conditions to an offender’s release (Conditional Release Act,s. 133(3)), including to protect victims who have safety concerns (s. 133(3.1)).

The Board may also suspend or revoke the parole of anoffender who breaches the conditions imposed (s. 135). Where the Board decides not to grant parole, it generally reviews the case everytwo years (s. 123(5)). However, this is done only every five years in the case of offenders who have been convicted of murder or anotheroffence involving violence (s. 123(5.01)). [44] Victims are taken into consideration in the parole process.

To determine whether an offender presents an “undue riskto society” (Conditional Release Act, s. 102), the Board is to consider, among other things, the nature and gravity of the offence as wellas information obtained from victims (s. 101(a)). Victims may apply to attend parole hearings and may present statements to the Board(s. 140(4), (5.1), (5.2) and (10) to (12)). Although such hearings can awaken painful memories for victims and for their loved ones, theydo serve to reiterate the suffering an offender has caused and to condemn the acts committed once again (D.

Spencer, “How MultipleMurder Sentencing Provisions May Violate the Charter” (2019), 55 C.R. (7th) 165). C. Sentencing Objectives in Canadian Law [45] Before I begin the s. 12 analysis, an overview of the objectives of sentencing will be essential to the adjudication ofthe case before the Court.

In Canadian law, the fundamental purpose of sentencing is to protect society and to contribute, along withcrime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions thathave one or more objectives, including denunciation, deterrence and rehabilitation, which it will be helpful to discuss (s. 718 Cr. C.). [46] First of all, the penological objective of denunciation requires that a sentence express society’s condemnation of theoffence that was committed. The sentence is the means by which society communicates its moral values (R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 81). This objective must be weighed carefully, as it could, on its own, be used to justifysentences of unlimited severity (C. C. Ruby, Sentencing (10th ed. 2020), at §1.22). [47] As for the objective of deterrence, it has two forms. The first, specific deterrence, is meant to discourage the offender

before the court from reoffending. The second, general deterrence, is intended to discourage members of the public who might betempted to engage in the criminal activity for which the offender has been convicted (R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941, atpara. 2). When this objective is being pursued, the offender is punished more harshly in order to send a message to the public or, in otherwords, to serve as an example. General deterrence is an objective that must be weighed by a court, but the effectiveness of which hasoften been questioned.

These legitimate reservations notwithstanding, the fact remains that the certainty of punishment, together with theentire range of criminal sanctions, does produce a certain deterrent effect, albeit one that is difficult to evaluate, on possible offenders(Ruby, at §1.31; Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (1987), at pp. 136-38). [48] Lastly, the objective of rehabilitation is designed to reform offenders with a view to their reintegration into society sothat they can become law-abiding citizens.

This penological objective presupposes that offenders are capable of gaining control overtheir lives and improving themselves, which ultimately leads to a better protection of society. M. Manning and P. Sankoff note thatrehabilitation “is probably the most economical in the long run and the most humanitarian objective of punishment” (Manning, Mewett &Sankoff: Criminal Law (5th ed. 2015), at ¶1.155). Along the same lines, I would reiterate my comment in R. v.

Lacasse, 2015 SCC 64,[2015] 3 S.C.R. 1089, that “[r]ehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies ofmany other nations in the world” (para. 4). [49] The relative importance of each of the sentencing objectives varies with the nature of the crime and the characteristicsof the offender (R. v. Lyons, (SCC), [1987] 2 S.C.R. 309, at p. 329). There is no mathematical formula for determiningwhat constitutes a just and appropriate sentence.

That is why this Court has described sentencing as a “delicate art which attempts tobalance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of theoffence, while at all times taking into account the needs and current conditions of and in the community” (M. (C.A.), at para. 91). [50] But sentencing must in all circumstances be guided by the cardinal principle of proportionality.

The sentence must besevere enough to denounce the offence but must not exceed “what is just and appropriate, given the moral blameworthiness of theoffender and the gravity of the offence” (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 42; see also R. v. Ipeelee, 2012SCC 13, [2012] 1 S.C.R. 433, at para. 37). Proportionality in sentencing is considered to be an essential factor in maintaining publicconfidence in the fairness and rationality of the criminal justice system. The application of this principle assures the public that theoffender deserves the punishment received (Re B.C.

Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, at p. 533, perWilson J., concurring). [51] It follows that “a person cannot be made to suffer a grossly disproportionate punishment simply to send a message todiscourage others from offending” (Nur, at para. 45). In a similar vein, Vauclair J.A. aptly stated that [translation] “striving forexemplarity to the detriment of evidence of the merit of rehabilitation objectives is incompatible with the principle of individualization”(Lacelle Belec v. R., 2019 QCCA 711, at para. 30 , citing R. v.

Paré, 2011 QCCA 2047, at para. 48 , per Doyon J.A.).Proportionality has a restraining function, and in this sense serves to guarantee that a sentence is individualized, just and appropriate. [52] The principle of proportionality is so fundamental that it has a constitutional dimension under s. 12 of the Charter,which forbids the imposition of a sentence that is so grossly disproportionate as to be incompatible with human dignity (Nasogaluak, atpara. 41; Ipeelee, at para. 36).

However, proportionality as a sentencing principle has no constitutional status as such, since it is notrecognized to be a principle of fundamental justice under s. 7 of the Charter (R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571, atpara. 160; R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180, at para. 71). [53] Nor do the other sentencing principles and objectives have their own constitutional status. It follows that “Parliamentis entitled to modify and abrogate them as it sees fit, subject only to s. 12 of the Charter” (Safarzadeh-Markhali, at para. 71). D. The Right Under

Section 12 of the Charter Not to Be Subjected to Cruel and Unusual Punishment [54]

Section 12 of the Charter, which appears under the heading “Legal Rights”, provides that “[e]veryone has the rightnot to be subjected to any cruel and unusual treatment or punishment.” Although these reasons apply to both punishment and treatment, Iwill, for the sake of brevity, refer solely to punishment. [55] It will therefore be appropriate, first, to determine whether the parole ineligibility period constitutes punishment and,second, to clarify the two prongs of the protection afforded by this constitutional guarantee.

(1) The Parole Ineligibility Period Constitutes Punishment [56]

Section 12 of the Charter grants individuals a right not to be subjected to cruel and unusual punishment. Aprecondition for applying this

section is therefore that the impugned action constitute punishment. Such is the case here. [57] State action is considered to be punishment for the purposes of s. 12 if it “(1) . . . is a consequence of conviction thatforms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and either (2) . . . is imposed infurtherance of the purpose and principles of sentencing, or (3) . . . has a significant impact on an offender’s liberty or security interests”(R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, at para. 39, quoting R. v.

K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 41). [58] The length of parole ineligibility is part of an offender’s punishment (Shropshire, at para. 23; see also Zinck, atpara. 31). It is a consequence of conviction and has a significant impact on the offender’s interests in liberty and security of the person.What is more, the parole ineligibility period furthers the objectives of denunciation and deterrence that underlie a sentence (Shropshire,at paras. 21-23; M. (C.A.), at para. 64; R. v. Simmonds, 2018 BCCA 205, 362 C.C.C. (3d) 215, at para. 10).

It follows that the impositionof consecutive parole ineligibility periods authorized by s. 745.51 Cr. C. constitutes punishment, the constitutionality of which must bedetermined under s. 12 of the Charter.

(2) The Two Prongs of the Right Not to Be Subjected to Cruel and Unusual Punishment [59] For a proper understanding of the two prongs of the protection afforded by s. 12 of the Charter, it is necessary to

refocus the analysis on the purpose of this provision. This Court recently stated that the purpose of s. 12 is “to prevent the state frominflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment. It is meant to protecthuman dignity and respect the inherent worth of individuals” (Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32, atpara. 51; the Court was unanimous on this point). Although dignity is not recognized as an independent constitutional right, it is afundamental value that serves as a guide for the

interpretation of all Charter rights (Blencoe v. British Columbia (Human RightsCommission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 77). Generally speaking, the concept of dignity evokes the idea that everyperson has intrinsic worth and is therefore entitled to respect (Ward v. Quebec (Commission des droits de la personne et des droits de lajeunesse), 2021 SCC 43, at para. 56; Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand, (SCC), [1996] 3 S.C.R. 211, at para. 105). This respect is owed to every individual, irrespective of their actions (seeC.

Brunelle, “La dignité dans la Charte des droits et libertés de la personne: de l’ubiquité à l’ambiguïté d’une notion fondamentale”,[2006] R. du B. (numéro thématique) 143, at pp. 150-51). [60] Against this backdrop, the two prongs of the right not to be subjected to cruel and unusual punishment may now beconsidered.

Section 12 protects, first, against the imposition of a punishment that is so excessive as to be incompatible with humandignity and, second, against the imposition of a punishment that is intrinsically incompatible with human dignity (R. v. Smith, (SCC), [1987] 1 S.C.R. 1045, at pp. 1072-74; L. Kerr and B. L. Berger, “Methods and Severity: The Two Tracks of Section12” (2020), 94 S.C.L.R. (2d) 235, at pp. 235-36).

This distinction is often blurred, and it would be helpful in the context of this appeal toclarify certain points in this regard. [61] The first form of cruel and unusual punishment involves punishment whose effect is grossly disproportionate to whatwould have been appropriate (Smith, at p. 1072). A punishment oversteps constitutional limits when it is grossly disproportionate, andnot merely excessive (Smith, at p. 1072).

A grossly disproportionate sentence is cruel and unusual in that it shows the state’s completedisregard for the specific circumstances of the sentenced individual and for the proportionality of the punishment inflicted on them. [62] Determining whether a punishment is grossly disproportionate requires a contextual and comparative analysis: apunishment is found to be so in the specific circumstances of a particular case, in relation to the punishment that would have been justand appropriate having regard to the offender’s personal characteristics and the circumstances surrounding the commission of theoffence.

However, the nature of the punishment inflicted is not problematic from a constitutional perspective. For example, it is acceptedthat the state may have recourse to fixed-term imprisonment or to the imposition of a fine as punishment. Such punishment is thereforenot in itself cruel and unusual, but can become so if its effects make it grossly disproportionate. [63] The case law on grossly disproportionate punishment has been developed in the context of mandatory sentencesimposed without regard for the offender’s particular circumstances (e.g., mandatory minimum prison sentences in R. v.

Lloyd, 2016 SCC13, [2016] 1 S.C.R. 130; Nur; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; R. v. Luxton, (SCC), [1990] 2 S.C.R.711; Smith; a mandatory victim surcharge in Boudreault; a mandatory weapons prohibition order in R. v. Wiles, 2005 SCC 84, [2005] 3S.C.R. 895). In Nur, this Court noted that, to determine whether a minimum sentence is grossly disproportionate, a court must firstconsider “what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in theCriminal Code” (para. 46).

The court must then ask whether the impugned provision requires it to impose a sentence that is grosslydisproportionate to one that would be just and appropriate for the offender or for another offender in a reasonable hypothetical case; ifthe provision does so, it infringes s. 12 of the Charter (Nur, at para. 46).

The Nur framework does not apply to discretionary sentences.Where there is no mandatory minimum sentence, the imposition of a sentence that is acceptable by its nature but that proves to bedisproportionate in a particular case can be rectified by way of an appeal against sentence rather than a declaration of unconstitutionality(Malmo-Levine, at paras. 167-68). [64] The second prong of the protection afforded by s. 12 concerns a narrow class of punishments that are cruel andunusual by nature; these punishments will “always be grossly disproportionate” because they are intrinsically incompatible with humandignity (Smith, at p. 1073).

These punishments are in themselves contrary to human dignity because of their “degrading anddehumanizing” nature, as this Court put it in 9147-0732 Québec inc. (para. 51; the Court was unanimous on this point).

A degrading ordehumanizing punishment, by its very nature, outrages “our standards of decency” (Luxton, at p. 724). [65] Since a society’s standards of decency are not frozen in time, what constitutes punishment that is cruel and unusual bynature will necessarily evolve, in accordance with the principle that our Constitution is a living tree capable of growth and expansionwithin its natural limits so as to meet the new social, political and historical realities of the modern world (Reference re Same-SexMarriage, 2004 SCC 79, [2004] 3 S.C.R. 698, at para. 22; Hunter v.

Southam Inc., (SCC), [1984] 2 S.C.R. 145, atpp. 155-56; Edwards v. Attorney-General for Canada, (UK JCPC), [1930] A.C. 124 (P.C.), at p. 136). As Cory J.pointed out more than 30 years ago while dissenting on another point in Kindler v. Canada (Minister of Justice), (SCC),[1991] 2 S.C.R. 779, “[w]hat is acceptable as punishment to a society will vary with the nature of that society, its degree of stability andits level of maturity” (p. 818). Punishments that we regard as incompatible with human dignity today were common and accepted in thepast. Professor A. N.

Doob rightly states that “[t]he reason we no longer whip or hang people is not that we ran out of leather or rope.Rather, it is because those punishments are no longer congruent with Canadian values” (Department of Justice Canada, A Values andEvidence Approach to Sentencing Purposes and Principles (2017), at p. 4). [66] Among the punishments and treatments that have so far been held to be intrinsically incompatible with human dignityare “the infliction of corporal punishment, such as the lash, irrespective of the number of lashes imposed . . . the lobotomisation ofcertain dangerous offenders or the castration of sexual offenders” (Smith, at p. 1074).

Torture also falls into this category, for it has as itsend “the denial of a person’s humanity” (Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, atpara. 51). [67] A punishment is cruel and unusual by nature if the court is convinced that, having regard to its nature and effects, itcould never be imposed in a manner consonant with human dignity in the Canadian criminal context. A punishment that is cruel andunusual by nature is “so inherently repugnant that it could never be an appropriate punishment, however egregious the offence” (Suresh,at para. 51).

To determine whether a punishment is intrinsically incompatible with dignity, the court must determine whether thepunishment is, by its very nature, degrading or dehumanizing. The effects that the punishment may have on all offenders on whom it is

imposed can also inform the court and provide support for its analysis of the nature of the punishment. [68] The court’s analysis must remain focused on the nature of the punishment rather than on considerations ofproportionality between the punishment and the offender’s moral culpability. A punishment that is cruel and unusual by nature will bydefinition “always be grossly disproportionate” (Smith, at p. 1073).

Such a punishment must quite simply be excluded from the arsenal ofsanctions available to the state, which means that the state cannot circumvent s. 12 by providing for specific exemptions for theimposition of the punishment or by making its imposition subject to judicial discretion.

In other words, the mere possibility that apunishment that is cruel and unusual by nature may be imposed is enough to infringe s. 12 of the Charter. [69] In sum, a punishment may infringe s. 12 for two distinct reasons, either because it is grossly disproportionate in agiven case or because it is intrinsically incompatible with human dignity. Where both prongs of the protection of s. 12 are in issue in thesame case, the analysis of the nature of the punishment must precede that of gross disproportionality.

If the punishment that might beimposed is cruel and unusual by nature, and hence intrinsically incompatible with human dignity, it will be unnecessary — and I wouldeven say pointless — to consider whether it is grossly disproportionate in a given case, because a punishment that is cruel and unusualby nature will “always be grossly disproportionate” (Smith, at p. 1073; see also Kerr and Berger, at p. 238). [70] In their analysis under s. 12 of the Charter, the courts must show deference to Parliament’s policy decisions withrespect to sentencing (Lloyd, at para. 45).

The limit set by the Constitution for a sentence to be found grossly disproportionate is intendedto be demanding and will be attained only rarely (Boudreault, at para. 45; Lloyd, at para. 24; Steele v. Mountain Institution, (SCC), [1990] 2 S.C.R. 1385, at p. 1417; Lyons, at p. 345). Likewise, the courts must be cautious and deferential when a sentence iscontested on the basis that it falls into the narrow category of punishment that is cruel and unusual by nature.

Nevertheless, “the finaljudgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function” (Lloyd, at para. 45,quoting R. v. Guiller (1985), (ON SC), 48 C.R. (3d) 226 (Ont. Dist. Ct.), at p. 238). That is the analysis we must nowundertake. E. Does

Section 745.51 Cr. C. Infringe

Section 12 of the Charter? [71] I will begin by observing that this appeal concerns only the constitutionality, under s. 12 of the Charter, of a provisionthat allows a court to impose consecutive parole ineligibility periods in a context involving multiple murders. Specifically, in the case offirst degree murders, the court is authorized, through the combined effect of ss. 745.51 and 745(

a) Cr. C., to add up ineligibility periodsof 25 years for each murder. Whether it is unconstitutional for a court to impose any ineligibility period greater than 25 years is thereforenot at issue in this case. [72] To answer the question before the Court, I will begin by defining the scope of s. 745.51 Cr. C. and the punishmentthat flows from it. I will then inquire into the nature of that punishment to determine whether it is intrinsically incompatible with humandignity and thus cruel and unusua

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