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Jan 2017 Quebec City mosque shooting
- Thread starter The Bread Guy
- Start date
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As of this post, Globe & Mail says sentence has been passed (life w/parole chance @ 35 years), but all kinds of French-language media/reporters say via social media that the judge hasn't even finished delivering her sentencing rationale. The sentencing hearing started ~0930 this morning - or in the words of one Twitter scamp, "The sentencing hearing for #AlexandreBissonnette has now run about as long as a typical emergency room wait time in Quebec." 
The French media do say the judge has rejected both 150 years without parole (Crown recommendation) and 25 years without parole (defence recommendation) as being "unreasonable", with something between 35 and 42 years being within the judge's power to give.
So, there appear to be hints, but no final declaration from the judge as of 1500 Eastern.
The French media do say the judge has rejected both 150 years without parole (Crown recommendation) and 25 years without parole (defence recommendation) as being "unreasonable", with something between 35 and 42 years being within the judge's power to give.
So, there appear to be hints, but no final declaration from the judge as of 1500 Eastern.
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And we have a decision ...
- "Alexandre Bissonnette sentenced to six life sentences with no parole for 40 years"*
- "Alexandre Bissonnette écope d'une peine d'au moins 40 ans de prison"
Oldgateboatdriver
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Actually, Brihard, the judge in this case has acted on what can be described as the worse court's instinct of being legislators instead of judges. What he did is court activism in its very definition.
In a novel of more than 230 pages (quite frankly, I didn't know just sentencing someone required so much explanation from a court!!!), he starts by stating properly the mechanics of the law: In multiple/mass murder cases, the court has been empowered by the fairly recent Criminal code amendment (brought in by the Conservatives but never repealed by the Liberals) to make the actual sentences consecutive, as opposed to concurrent. Since the sentence for premeditated murder is life with no right to parole for 25 years. Therefore, as the judge here noted, every consecutive sentence means another 25 years before one can ask for parole - and it thus goes in 25 years increments.
The judge then goes on long analysis and comes to the conclusion that this amendment to the Criminal code is unconstitutional because it would/could be considered a "cruel and unusual punishment" and strikes the provision down. (I strongly disagree with him on that one).
So far, so good - all of this being within the purview of the courts. That means he should have gone back to the basic rule of sentencing, which is that multiple sentences are usually served concurrently unless the court exercises the powers of Cr. C. art. 718.3 (4) to make punishment cumulative. That last power does not get him where wants, however, since in the case of premeditated murder, it only gets him back to only being able to give consecutive "life" sentences with 25 years each before eligible for parole. That is because while the Cr. C. give judges the power to make sentences cumulative, it doesn't give them the power to actually change the required sentence under the law. Moreover, even that possibility was not considered applicable in the case of murders since the actual sentence is life - not 25 years. the 25 years is for eligibility to parole, and parole is not automatic, especially for multiple-murderers. - and therefore, you could not go to jail for more than one life.
And this is where he goes awry: He obviously accepts the underlying reason the law was changed: The public was appalled that multiple-murderers in mass shootings could find themselves back on the street after 25 years at the discretion of rather opaque committee's decisions where the public has little say. The public wanted stiffer sentences. As he agrees with that he then - somehow - discovers an otherwise non existent discretionary power for the court to vary the requirement for eligibility for parole by increasing it by a number he selects under the circumstances.
When he does that, he is not applying either the constitution nor the Criminal code provisions - he is legislating in a field where he just rejected Parliament's solution as unconstitutional.
That is not his job. He was not elected to enact laws, he was appointed to apply them (which includes declaring some unconstitutional, as once explained in these fora by FJAG).
After finding the new provision of the law unconstitutional, all he should have done is condemn the accused to concurrent life sentences with concurrent 25 years for eligibility for parole and sent back the determination of further requirement for constitutionally valid longer term before parole eligibility back where it belongs: Parliament.
Otherwise, he is just full of sh*t ... and in my opinion, he truly is.
In a novel of more than 230 pages (quite frankly, I didn't know just sentencing someone required so much explanation from a court!!!), he starts by stating properly the mechanics of the law: In multiple/mass murder cases, the court has been empowered by the fairly recent Criminal code amendment (brought in by the Conservatives but never repealed by the Liberals) to make the actual sentences consecutive, as opposed to concurrent. Since the sentence for premeditated murder is life with no right to parole for 25 years. Therefore, as the judge here noted, every consecutive sentence means another 25 years before one can ask for parole - and it thus goes in 25 years increments.
The judge then goes on long analysis and comes to the conclusion that this amendment to the Criminal code is unconstitutional because it would/could be considered a "cruel and unusual punishment" and strikes the provision down. (I strongly disagree with him on that one).
So far, so good - all of this being within the purview of the courts. That means he should have gone back to the basic rule of sentencing, which is that multiple sentences are usually served concurrently unless the court exercises the powers of Cr. C. art. 718.3 (4) to make punishment cumulative. That last power does not get him where wants, however, since in the case of premeditated murder, it only gets him back to only being able to give consecutive "life" sentences with 25 years each before eligible for parole. That is because while the Cr. C. give judges the power to make sentences cumulative, it doesn't give them the power to actually change the required sentence under the law. Moreover, even that possibility was not considered applicable in the case of murders since the actual sentence is life - not 25 years. the 25 years is for eligibility to parole, and parole is not automatic, especially for multiple-murderers. - and therefore, you could not go to jail for more than one life.
And this is where he goes awry: He obviously accepts the underlying reason the law was changed: The public was appalled that multiple-murderers in mass shootings could find themselves back on the street after 25 years at the discretion of rather opaque committee's decisions where the public has little say. The public wanted stiffer sentences. As he agrees with that he then - somehow - discovers an otherwise non existent discretionary power for the court to vary the requirement for eligibility for parole by increasing it by a number he selects under the circumstances.
When he does that, he is not applying either the constitution nor the Criminal code provisions - he is legislating in a field where he just rejected Parliament's solution as unconstitutional.
That is not his job. He was not elected to enact laws, he was appointed to apply them (which includes declaring some unconstitutional, as once explained in these fora by FJAG).
After finding the new provision of the law unconstitutional, all he should have done is condemn the accused to concurrent life sentences with concurrent 25 years for eligibility for parole and sent back the determination of further requirement for constitutionally valid longer term before parole eligibility back where it belongs: Parliament.
Otherwise, he is just full of sh*t ... and in my opinion, he truly is.
OBGD I am completely ignorant in this field, but I read your post and I am now curious... since this judge apparently passed a sentence that is problematic would that not give defence lawyers a strong ground for appeal and possibly a lesser sentence for this guy?
I will be reading up on this over the next few days and talking to a few friends in real life who have experience and education in the fields... but if this judge is an activist and not strictly applying the law as it is found written and in spirit in canada.. shouldn't this be stopped or is it acceptable? I just see serious risk with it and I never noticed this before for some reason.
Abdullah
P.s now that it has been written down I guess I can see or guess other instances.
I will be reading up on this over the next few days and talking to a few friends in real life who have experience and education in the fields... but if this judge is an activist and not strictly applying the law as it is found written and in spirit in canada.. shouldn't this be stopped or is it acceptable? I just see serious risk with it and I never noticed this before for some reason.
Abdullah
P.s now that it has been written down I guess I can see or guess other instances.
Oldgateboatdriver
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Abdullah:
In this matter, anything more than a sentence resulting in 25 years to eligibility for parole was, and is, going to send the defence to appeal, and anything that resulted in only concurrent sentences with just 25 years to eligibility was going to send the Crown prosecutor to appeal.
So this was going to be the test for the law no matter what. Right now, we may have a situation where both the defence and the Crown appeal the sentence. This is likely heading for the Supreme court.
I suspect the judge wanted to "indicate" to the legislator what would be - in his mind - an acceptable situation under the constitution, which would be a power in multiple murder cases for the court to use it's discretion to decree a higher number of years than 25 years for eligibility for parole. But it wasn't for him to enact that unilaterally as a court.
BTW, and few people know that, but multiple murderers are the group of prisoners with the lowest rate for obtaining parole and many of them only get paroled in their very old age, for humanitarian reasons, so they can receive end of life care. So concurrent life sentences for mass-murderers are not a get out of jail card you can just play after 25 years.
In this matter, anything more than a sentence resulting in 25 years to eligibility for parole was, and is, going to send the defence to appeal, and anything that resulted in only concurrent sentences with just 25 years to eligibility was going to send the Crown prosecutor to appeal.
So this was going to be the test for the law no matter what. Right now, we may have a situation where both the defence and the Crown appeal the sentence. This is likely heading for the Supreme court.
I suspect the judge wanted to "indicate" to the legislator what would be - in his mind - an acceptable situation under the constitution, which would be a power in multiple murder cases for the court to use it's discretion to decree a higher number of years than 25 years for eligibility for parole. But it wasn't for him to enact that unilaterally as a court.
BTW, and few people know that, but multiple murderers are the group of prisoners with the lowest rate for obtaining parole and many of them only get paroled in their very old age, for humanitarian reasons, so they can receive end of life care. So concurrent life sentences for mass-murderers are not a get out of jail card you can just play after 25 years.
