Isabel Grant is professor in the University of British Columbia Faculty of Law. Debra Parkes is Associate Dean for Research and Graduate Studies at the University of Manitoba Faculty of Law.
Justin Bourque was sentenced Friday to life imprisonment with three consecutive 25-year parole ineligibility periods. This means that the man who killed three RCMP officers in a Moncton shooting spree in June will be eligible for parole in 75 years at the age of 99.
We do not dispute that he committed horrific crimes that demand our societal condemnation. We are deeply concerned, however, that today's unprecedented sentence will have an impact on sentencing for murder generally and may violate constitutional guarantees against cruel and unusual punishment. We disagree with the position of Mr. Bourque's lawyer that there are no Charter of Rights issues here.
To understand how we got to this point, we must go back to the abolition of capital punishment in 1976. When the death penalty was abolished, a political compromise was reached to sentence murder severely. A mandatory life sentence was imposed with parole ineligibility set at 25 years for first-degree murder and between 10 and 25 years for second-degree murder. Recognizing that these were some of the harshest punishments for murder among democratic countries, the government also enacted what is commonly known as the "faint-hope clause" which allowed parole ineligibility to be re-assessed by a jury after the individual had served 15 years. This clause did not result in people being released, it simply meant that the Parole Board could consider release if a jury decided to shorten the period of parole ineligibility.
Enter the Conservative government of Stephen Harper. A touchstone of the government's tough-on-crime approach has been to make sentences harsher for murder notwithstanding the fact that murderers tend to have one of the lowest recidivism rates and that, short of the death penalty, Canada has some of the harshest penalties in the world for murder.
First, in 2011, the government gave judges the option to impose periods of parole ineligibility consecutively for persons who kill more than one victim. Instead of 25 years parole ineligibility for first-degree murder, someone who killed two people could have a 50-year period imposed.
Second, the government whittled away the faint-hope clause to make it more difficult to get a case before a jury for reconsideration and to make the criteria for shortening parole ineligibility more onerous. Eventually, in 2011, the government abolished the faint-hope clause for all murders that took place from that day forward.
In Charter cases upholding the 25-year mandatory minimum for first-degree murder, the courts consistently referred to the existence of the faint-hope clause as a safety valve on sentences that could otherwise be grossly disproportionate. This issue needs to be reassessed by our highest court in the light of the consecutive periods of parole ineligibility and the abolition of the faint-hope clause.
Everyone convicted of murder will serve a mandatory life sentence. Without parole, they will serve the rest of their lives in a penitentiary. Robert Pickton, Paul Bernardo and the like will never be released regardless of how many times they go before the Parole Board. Those who are released face a return to the penitentiary if they violate conditions of their parole. Usually, those violations relate to behaviour that is not criminal such as consumption of drugs or alcohol. Those who are released will be under supervision for the rest of their lives.
It costs taxpayers well over $100,000 a year to imprison a man in a federal penitentiary (over $200,000 per year for a woman). For Mr. Bourque, that is probably close to $10-million taking inflation into account. But there are other costs. The faint-hope clause served the purpose its name implies – providing a measure of hope for someone serving a long sentence of imprisonment. With no possibility of earning early release through good behaviour, these prisoners are truly without hope and without any incentive to treat other prisoners or staff in a humane manner. We know that the risks of suicide and violence against staff and other prisoners rise when individuals are serving life without parole which is the de facto sentence imposed on this 24-year-old man.
Consecutive periods of parole ineligibility on top of a life sentence reflect a profound distrust in the Parole Board to make decisions in the public interest. They also reflect the assumption that people cannot ever turn their lives around regardless of how young they are at the time of their offence or whether or not they are suffering from a mental illness.
Consecutive parole ineligibility periods are sentences of life without parole dressed up as something less. The European Court of Human Rights recently held that a "whole life sentence" for murder amounts to degrading or inhumane treatment if there is no possibility for release or review. A judge in that decision stated that "hope is an important and constitutive aspect of the human person." A sentencing regime that denies hope is unacceptably costly in human terms, not to mention the fiscal cost. It is time to rethink our increasingly inhumane sentencing laws for murder.