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Consecutive Perole Ineligibility Periods Found Unconstitutional by the Supreme Court of Canada

This decision re-affirms our country’s commitment to Charter principles, rehabilitation in sentencing, and deference to administrative tribunals.

PHOTO: Stock
“No crime, no matter how appalling it might be, can justify imposing a punishment that is intrinsically incompatible with human dignity, like a sentence of imprisonment for life without a realistic possibility of parole.” (R. v. Bissonnette 2022 SCC 23 at para 111)

On January 29, 2017, B charged into the Great Mosque of Quebec during evening prayer armed with a semi-automatic rifle and pistol. He opened fire on the 46 worshippers present that night, seriously injuring 5 people and causing the deaths of 6: Khaled Belkacemi, Ibrahima and Mamadou Tanou Barry, Abdelkrim Hassane, Azzeddine Soufiane and Aboubaker Thabti.

B pleaded guilty to the 12 charges laid against him, including 6 counts of first-degree murder.


Under the Criminal Code, anyone who is convicted of first-degree murder automatically receives a life sentence and parole eligibility after 25 years. In B’s case, the Crown also asked that section 745.51 be applied.

In circumstances where there are multiple murder convictions, section 745.51 allowed the sentencing judge to order the offender to serve the automatic parole ineligibility periods consecutively rather than concurrently. Notably, the section only allows for the imposition of consecutive 25-year periods. If applied, the possibility of parole can be completely taken away from an offender. The minimum ineligibility period would be 50 years, and for six counts of first-degree murder, 150 years.

B challenged the constitutionality of section 745.51, arguing that the provision infringed section 7 (the right to life, liberty and security of the person) and section 12 (the right not to be subjected to any cruel or unusual punishment) of the Canadian Charter of Rights and Freedoms.

In this line of decisions, the trial judge found that the provision was unconstitutional but could be remedied by reading in the court’s discretion to choose the length of additional ineligibility.

The Court of Appeal found that section 745.51 could not be remedied as the fixed 25-year periods chosen by Parliament were so inextricably woven into its legislative objectives that any changes would be treading onto the government’s legislative sphere. The Court declared the provision unconstitutional, effective immediately, and ordered that B serve the 25-year parole ineligibility period on each count of first-degree murder concurrently.

In R v. Bissonnette 2022 SCC 23, a 9-0 decision, the Supreme Court of Canada unanimously found that section 745.51 of the Criminal Code is unconstitutional and could not be saved.

In deciding that the imposition of automatic, consecutive parole ineligibility periods is contrary to the Charter right against cruel and unusual punishment, the Supreme Court of Canada stated that a sentence of imprisonment for life without a realistic possibility of parole is intrinsically incompatible with human dignity. To ensure respect for the inherent dignity of every individual, s. 12 of the Charter requires that Parliament leave a door open for rehabilitation, even in cases where this objective is of secondary importance.

Section 745.51’s effect was to completely negate the sentencing objective of rehabilitation, which, although secondary in cases of multiple murders, is incompatible with human dignity.

The Supreme Court found that for the purposes of analyzing the constitutionality of section 745.51, the situation can be likened to a sentence of imprisonment for life without a realistic possibility of parole, in that the individual in question will never be able to re‑enter society and contribute to it as an active citizen, especially given the fact that long prison sentences impair, more than they favour, the reintegration of offenders into society.



This decision re-affirms our country’s commitment to Charter principles, rehabilitation in sentencing, and deference to administrative tribunals.

The Parole Board of Canada has sole discretion on whether conditional release is appropriate for all offenders – including mass murderers.

The Parole Board is an independent administrative tribunal who has exclusive jurisdiction to grant conditional release to persons serving a sentence of two or more years in Canada. The parole system is distinct from the sentencing process. The current iteration of the Parole Board has been in place since the Corrections and Conditional Release Act was passed in 1992.

Offenders must prove to the Board that they no longer represent a danger to society and that it is no longer necessary to keep them in custody. In exercising their discretion, the Board is guided by its purpose: “to contribute to the maintenance of a just, peaceful and safe society by means of decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law‑abiding citizens”.

In considering whether an offender presents an “undue risk to society”, the Board considers the nature and gravity of the offence, as well as information obtained from victims who apply to attend parole hearings.

Our Constitution is a “living tree, capable of growth and expansion within its natural limits so as to meet the new social, political and historical realities of the modern world”. In this context, and according to our society’s current standards of decency, B will be able to apply for conditional release after serving his 25 years. Whether or not he still presents a risk to society is within the sole discretion of the members of the Parole Board.


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