Yuan Yi Zhu and Kerry Sun

Why Canada can’t jail terrorists for life

Why Canada can’t jail terrorists for life
Quebec city courthouse, where Alexandre Bissonnette was tried (photo: Getty)
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On 29 January 2017, Alexandre Bissonnette had breakfast, browsed the internet, had dinner with his parents, went to a mosque in Quebec city, and started shooting worshippers as they were praying. When his rifle jammed he pulled out a pistol and kept shooting. He first murdered two brothers by shooting them in the head, then murdered four more men in cold blood. Twenty-five worshippers were shot that day; more would have died had not Azzedine Soufiane, a greengrocer and Bissonnette’s final victim, tackled the attacker at the cost of his own life.

You might well think that a man like Bissonnette, who murdered six of his fellow citizens out of pure religious and racial hatred, has forfeited any claim to spend the remainder of his natural life in anything but a cage. And that is what, until recently, Canadian law allowed. The courts were able to sentence someone to 150 years’ in prison, or a minimum of 25 years without parole per life taken.

But the Supreme Court of Canada, the super-legislature to which Canadian politicians have outsourced their moral judgment, has decided differently. According to a recently-released unanimous judgment, Bissonnette’s human dignity was at stake, and that dignity was being violated by keeping him in prison for the rest of his life without the possibility of early release. In other words, a life sentence without any possibility of reintegration into society violated his dignity.

Not only was Bissonnette’s dignity found to be violated (incidentally, the same principle relied on by the court to open up the Pandora’s box of euthanasia), but the Court also held that a life sentence without the possibility of parole amounted to ‘cruel and unusual punishment’ – and was therefore forbidden by the Canadian constitution. No matter how monstruous the crime, the court ruled, the perpetrator must now have a shot at parole. To do otherwise would deny offenders the ‘moral autonomy needed for rehabilitation’. For good measure, the Court added that a 150-year parole ineligibility period would ‘bring the administration of justice into disrepute and undermine public confidence in the rationality and fairness of the criminal justice system’ because it can never be fully carried out before someone dies and therefore lacks any ‘functional value’. This reasoning not only gave short shrift to the offender’s need to accept responsibility for his crime in the first place, it implied that victims and others seeking a strong response from the criminal justice system were simply being irrational and unfair.

Had the judges spoken to an actual member of the Canadian public, they might well have found that the average person in the street understands why a murderer can be given a 150-year sentence. And the judges would quickly find that people are far more likely to lose confidence in the criminal justice system if it allows a mass murdering domestic terrorist to be released from prison. Which is perhaps why the Court hastened to add that public opinion really had nothing to with it: according to the Court, a ‘popular’ view on criminal sentencing could still be against ‘the fundamental values of Canadian society’.

Worse still, the judges did not really believe their own arguments. When confronted with the question of whether an elderly offender could be sentenced to a minimum of 25 years without parole, for instance, the answer was a categorical yes, because parliament could mandate ‘a sentence that sufficiently denounces the gravity of the offence’, provided it does not deny ‘every offender of any possibility of parole from the outset’. In the Court’s logic, it is ‘cruel and unusual’ to sentence a criminal to die in prison without a chance of release, except if the criminal is old.

Even the most learned judges can err from time to time. But this case, beyond the horror of the crime, is particularly revealing. The judgment reveals an underlying liberal worldview which assumes both the utilitarian nature of criminal punishment and the infinite malleability of the human mind.

It is utilitarian because it rejects the legitimacy of retribution as a principle of criminal sentencing. For the utilitarian, what matters is to ‘cure’ the criminal and to ‘deter’ future criminal acts. But as Sir Roger Scruton put it, this picture of criminal sentencing ‘removes from the description of punishment any reference to the evil of what has been done, presenting the crime in neutral terms as a kind of biological accident, generated by a disorderly organism which it is now our sole concern to “cure”.’

Moreover, this fixation on rehabilitation (a worthy objective but which should be balanced with retribution) reveals a ‘blank slate’ view of human nature. In reality there are people who will never be rehabilitated, or whose crimes are so heinous that it is not possible to fully atone for them. Bissonnette knew exactly what he was doing when he pulled that trigger for the first time, and every time afterward. A 150-year period of parole ineligibility would have adequately reflected the gravity of his crimes.

It is unfashionable to speak of evil these days, particularly in progressive legal circles. But evil does exist. A justice system which does not recognise this basic fact is itself completely invidious.

Written byYuan Yi Zhu and Kerry Sun

Yuan Yi Zhu is a Senior Research Fellow at Policy Exchange’s Judicial Power Project. Kerry Sun is a lawyer in New York and a graduate of the University of Toronto, Faculty of Law.

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