CITATION: R. v. Granados-Arana, 2017 ONSC 6785

COURT FILE NO.: CR-17-7/275

DATE: 20171117

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

- and -

MAURO GRANADOS-ARANA

Elena Middelkamp and Anna R. Tenhouse, for the Crown

Richard Litkowski and Misha Feldman, for the accused

HEARD: September 14, 2017

K.L. Campbell J.:

Ruling

The Constitutional Validity of s. 745.51 of the Criminal Code

(Consecutive Periods of Parole Ineligibility for Multiple Murders)

I

Overview

[1] This case raises the important question of the constitutional validity of s. 745.51 of the Criminal Code, R.S.C. 1985, chap. C-46.

[2] For many years, in cases in which an offender had committed multiple murders, the mandatory sentence was life imprisonment and the governing periods of parole ineligibility with respect to each offence could run only concurrently, regardless of the number of deceased victims, or the particular circumstances of the killings. However, on December 2, 2011, the provisions of Bill C-48, Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act, S.C. 2011, chap. 5, s. 5, came into force. Thereafter, sentencing judges were legislatively given the discretion, in appropriate cases, to make such parole ineligibility periods consecutive in cases of multiple murders pursuant to s. 745.51 of the Code.

[3] The accused, Mauro “Cruz” Granados-Arana, has now been convicted of two separate crimes of murder. On January 1, 2012, the accused killed Jamahl Franklin. Essentially, the accused inserted himself into an argument between others during a New Year’s Eve party and ultimately killed Mr. Franklin, shooting him in the back with a handgun. The accused was tried and convicted by a jury of second-degree murder. He was sentenced to life imprisonment without eligibility for parole for 16 years. On August 24, 2012, the accused killed George Fawell. Essentially, in an act of revenge for what others close to Mr. Fawell had done to him, the accused and some of his friends unlawfully confined and beat Mr. Fawell. Shortly thereafter, the accused and another man, took the accused to an isolated location by some train tracks and stabbed and chopped him to death, making good on an earlier threat by the accused to “mincemeat” Mr. Fawell. Subsequently, the accused was tried and convicted by a jury of first-degree murder.

[4] With respect to the first-degree murder of Mr. Fawell, the accused must, again, be sentenced to life imprisonment, this time without being eligible for release on parole until he has served 25 years. The Crown seeks an order, however, that this 25-year period of parole ineligibility be made consecutive to the earlier 16-year period of period of parole ineligibility already imposed. If such an order was made, the effective result would be that the 28-year-old accused would not be eligible for release on parole for a total of 41 years. The accused is opposed to this order, and challenges the constitutional validity of s. 745.51 of the Code, which legislatively permits the imposition of such an order. The accused contends that this legislation violates his constitutional rights protected by ss. 12 and 7 of the Canadian Charter of Rights and Freedoms, and that the impugned Code provision is not a “reasonable limit” on those rights within the meaning of s. 1 of the Charter.

[5] For the following reasons, I conclude that s. 745.51 of the Criminal Code is constitutionally valid legislation, as it is contrary to neither s. 12 nor s. 7 of the Charter. I need not consider the potential application of s. 1 of the Charter. Accordingly, this application by the accused must be dismissed. It will remain to be determined, after a full sentencing hearing and consideration of all of the circumstances of this case, whether the consecutive parole ineligibility order sought by the Crown should be imposed.

II

The Relevant Factual Background

A. The Second-Degree Murder of Jamahl Franklin

[6] As I have indicated, on January 1, 2012, the accused committed second-degree murder in his killing of Jamahl Franklin. According to the findings of fact made by the trial judge, Madam Justice Forestell of this court, the accused attended a New Year’s Eve house party armed with a loaded firearm. At some point that night, the accused became aware of a dispute between Mr. Franklin and another person. The accused and his friend, Baptists Bernier, followed Mr. Franklin out of the party. There was then a confrontation between Mr. Franklin and the accused. The trial judge concluded that, during this confrontation, and at the time of the shooting, the accused was not intoxicated, there was no provocation on the part of Mr. Franklin, and there was no element of self-defence on the part of the accused. Mr. Franklin was himself unarmed and was not threatening the accused or anyone else when he was killed. Indeed, the accused discharged his loaded handgun towards Mr. Franklin’s feet, and then at his back, as Mr. Franklin was running away. As the trial judge observed, the accused brought a loaded gun to a crowded house party, “went looking for a confrontation” armed with that gun, and then fired it across a city street, “callously gunning down” and killing “a fleeing victim.” In her reasons for sentence, Forestell J. concluded that the accused should be sentenced to life imprisonment without being eligible for release on parole for a period of 16 years. See R. v. Granados-Arana, 2015 ONSC 4527, [2015] O.J. No. 3931, at paras. 4-6, 19, 21.

B. The First-Degree Murder of George Fawell

[7] On August 24, 2012, the accused committed first-degree murder in his killing of George Fawell. In the summer of 2012, the accused was trafficking in drugs, including crack cocaine. A couple of weeks prior to the killing of Mr. Fawell, the accused was attacked by a group of men that included Burton Parlee, a cousin of Mr. Fawell. The accused was knocked to the ground, had his shirt pulled over his head, and he lost his Prada glasses. This caused some bad blood between the accused and Mr. Parlee, as the accused was humiliated and angered by this attack.

[8] On the night of August 23, 2012, the accused and three or four of his friends attended the second-floor apartment of his girlfriend, Lori Crook, located at 896 Dundas Street East. At approximately 9:00 p.m., Ms. Crook left the apartment to buy some cigarettes. On her way back home, Mr. Fawell approached her, looking to purchase drugs from her roommate, Ms. Kim Forsythe. At the time, Ms. Crook was on the phone talking to the accused. Following this call, the accused sent Ms. Crook a text message telling her to “bring” Mr. Fawell home, as he was “going to mincemeat him.” Ms. Crook understood this to mean that the accused was going to beat up Mr. Fawell. While Ms. Crook warned Mr. Fawell about the message, Mr. Fawell assured her that he had no issues with the accused, and they both proceeded by to the apartment at 896 Dundas Street East.

[9] When they arrived at the apartment, the accused and his friends immediately attacked Mr. Fawell and beat him severely. Ms. Crook witnessed some of this beating, but she was ordered into her room by the accused. Thereafter, she only heard the sounds of the continued beating.

[10] After she was sent on an errand by the accused, and returned to the apartment with his requested “weed grinder,” Ms. Crook saw Mr. Fawell again. At this point, Mr. Fawell was seated on one of the kitchen chairs. He was bound at the hands and ankles with duct tape. He had blood on his face, was still bleeding from the nose, and had some visible bruising.

[11] At some point after midnight, Ms. Crook, at the request of the accused, summoned their regular “driver” to the apartment. When he arrived, the accused and an unknown black male escorted Mr. Fawell into the vehicle. Ms. Crook was also ordered into the vehicle. Mr. Fawell’s hands were still bound together, but a hooded sweater had been put over top of his torso to conceal this restraint, and the hood of the sweater was pulled up over his head to at least partially obscure his face. The accused then directed the driver where he wanted to go. They ended up at a parking lot in an industrial neighbourhood near some train tracks. Access to the area of the train tracks could be gained by the embankment next to the parking lot. After the accused paid the “driver” of the vehicle with some crack cocaine and told Ms. Crook to return to the apartment, the accused and the unknown black male headed up the embankment with Mr. Fawell.

[12] While Ms. Crook was on her way home, the accused called her and told her to buy some gas. Later, the accused told her to return to the apartment.

[13] After the murder, but prior to the discovery of the body, the accused attended at the apartment of his other girlfriend, Ashley Andrews. The accused was wearing a blood-stained T-shirt. The accused showered at her apartment and changed his clothes, leaving behind his bloody shirt for her to discard, which she did. The accused then returned to Ms. Crook’s apartment. He told Ms. Crook that he had killed Mr. Fawell in order to teach Burton Parlee and the others a lesson and to set an example for them. The accused then ordered Ms. Crook to take the gas can to the tracks and burn Mr. Fawell’s body. When she arrived in the area of the tracks, however, she saw “outreach” workers, and she ultimately abandoned the gas can under a billboard. Ms. Crook then called the accused to come and pick her up.

[14] It was at approximately 10:45 a.m. on August 24, 2012, that these “outreach” workers discovered Mr. Fawell’s lifeless body on an embankment near the train tracks behind the Jimmie Simpson Recreation Centre. His hands were still bound together. It was immediately apparent that Mr. Fawell had suffered a large number of sharp force injuries to his head, neck, torso and his extremities. The forensic pathologist who completed the post-mortem examination concluded that the cause of death was multiple stab wounds to the chest, which penetrated Mr. Fawell’s heart, and chopping wounds to the back of Mr. Fawell’s head and neck, which resulted in skull and neck fractures. The forensic pathologist also noted that the stab wounds were predominantly paired, indicating that they may have been caused by an instrument with two pointed tips such as a pair of scissors. A pair of scissors was, in fact, found adjacent to Mr. Fawell’s body and forensic testing showed the presence of blood and Mr. Fawell’s DNA in several places. Both Ms. Crook and Ms. Forsythe recognized the scissors as having come from their apartment.

[15] After the discovery of Mr. Fawell’s body, the accused told Ms. Crook that he did not want to be in the city anymore and wanted to take a trip. He told her that he wanted to be a “ghost” and that he was going to “lay low.” Ms. Crook suggested that they go to Winnipeg, as she had family there. The accused and Ms. Crook then travelled to Winnipeg, where they stayed for five days.

[16] On May 12, 2017, at the conclusion of his trial, the jury found the accused guilty of first-degree murder. The jury had been left with two potential routes to such a verdict: (1) that the accused committed a “planned and deliberate” first-degree murder, pursuant to s. 231(2) of the Criminal Code; or (2) that the accused had committed a “constructive” first-degree murder on the basis that he had murdered Mr. Fawell while he was committing the offence of unlawful confinement, pursuant to s. 231(5) of the Criminal Code.

C. The General Circumstances of the Offender

[17] The accused was born on July 4, 1989. He is now 28 years of age. He was 22 years old when he committed the second-degree murder of Jamahl Franklin on January 1, 2012. He was 23 years old when he committed the first-degree murder of George Fawell on August 24, 2012.

[18] The accused has a prior criminal record, which includes convictions for the offences of assault with a weapon, assault with intent to resist arrest, failing to comply with a recognizance, possession of the proceeds of crime, trafficking in a controlled substance and possession of a controlled substance for the purpose of trafficking.

[19] If the parole ineligibility periods for the two murders committed by the accused are made consecutive, such that they total 41 years in duration, the accused will be 63 years old when he is first eligible to apply for full parole. He will be able to apply for day parole at the age of 60, three years prior to his full parole eligibility date. The accused can apply for escorted temporary passes at any time. It is also open to the accused to apply, at any time, for remission of his sentence through the royal prerogative of mercy.

III

The Impugned Federal Legislation

Section 745.51 of the Criminal Code

[20] Under the heading “Ineligibility for parole — multiple murders,” s. 745.51(1) of the Criminal Code provides as follows:

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.

[21] In assessing the constitutional validity of this legislation, there are a number of important interpretative points that must be kept in mind.

[22] First, the most obvious legislative purpose underlying the enactment of this provision, as the title of Bill C-48 revealed, was to remedy the problem with the previous provisions of the Criminal Code, which permitted only the imposition of concurrent terms of imprisonment and parole ineligibility, thereby effectively giving a sentencing “discount” to offenders guilty of multiple murders. With the enactment of s. 745.51, Parliament created a new sentencing power in courts to impose consecutive parole ineligibility periods upon offenders guilty of multiple murders, thereby potentially rendering such offenders subject to a more severe punishment than offenders guilty of only a single murder. The more subtle legislative goals in s. 745.51 of the Code were as follows: (1) to provide courts with a broader sentencing jurisdiction so as to permit the imposition of sentences more tailored to the individual circumstances of each multiple murder case; (2) to permit sentencing courts, in appropriate cases, to effectively impose more severe sentences than had been available in the past, in order to better reflect the gravity and consequences of multiple murders; and (3) to better protect the public against offenders who have proven to be especially dangerous by virtue of their murder of two or more victims, by the imposition of sentences that provide a greater degree of denunciation and deterrence.

[23] Second, in providing for potential consecutive parole ineligibility periods in multiple murder cases, s. 745.51 of the Code is not a mandatory provision. Rather, it provides the sentencing court with a permissive, discretionary jurisdiction to order consecutive parole ineligibility periods in appropriate cases. The court may also order concurrent terms of parole ineligibility, or potentially even a mix of consecutive and concurrent parole ineligibility terms.

[24] Third, s. 745.51 provides the sentencing court with the key criteria to consider in determining whether, and how, to exercise this permissive sentencing jurisdiction. More particularly, s. 745.51 states that the sentencing court should have regard to the following: (1) the character of the offender; (2) the nature of the offence; (3) the circumstances surrounding the commission of the offence; and (4) any recommendation made by the jury pursuant to s. 745.21 of the Code.

[25] Fourth, s. 745.51 does not purport to exclude consideration of the usually operative sentencing principles. Accordingly, in considering the exercise of the permissive jurisdiction provided by the impugned legislation, the sentencing court is obliged to consider the principles outlined in Part XXIII of the Criminal Code. For example, in considering the application of s. 745.51 of the Code, the sentencing court would be obliged to consider all the following principles:

• Pursuant to s. 718 of the Criminal Code, the “fundamental purpose” of sentencing is to “protect society” and to contribute to “respect for the law and the maintenance of a just, peaceful and safe society” by imposing “just sanctions” that have one or more of the following objectives: (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and others from committing offences; (c) to separate offenders from society where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or the community; and (f) to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims or the community.
• Pursuant to s. 718.1 of the Code, the “fundamental principle” of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
• Section 718.2 of the Code requires a sentencing court to also consider a number of other principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[26] Fifth, in the enactment of s. 745.51 of the Code, Parliament has not required, or even permitted, sentencing judges in multiple murder cases to impose irreducible “whole life” or “natural life” sentences of imprisonment on offenders, without any possibility of future release on parole. Rather, Parliament has created a discretionary sentencing jurisdiction in courts to impose consecutive fixed terms of parole ineligibility. Accordingly, when an offender who is guilty of multiple murders is sentenced to such consecutive parole ineligibility terms, the offender knows precisely when he or she is eligible for release on parole. In some cases, depending on the age of the offender and the total duration of the consecutive periods of parole ineligibility, the order made under s. 745.51 of the Code may, practically speaking, resemble a life-long sentence of imprisonment without parole. But, as orders under s. 745.51 are not indefinite, life-long sentences, without any possibility of eventual release on parole, such orders should not result in multiple murder offenders having no hope of eventual release, especially given that s. 745.51 does not purport to have any impact upon the availability of the royal prerogative of mercy.

[27] Further, pursuant to s. 675(2.3) of the Criminal Code, an offender convicted of multiple murders, who is sentenced to life imprisonment with consecutive parole ineligibility periods, may appeal to the Court of Appeal.[^1] Of course, on any such appeal, an offender might complain, for example, that the sentencing judge erred in one or more of the following ways: (1) the judge imposed a sentence that is disproportionate to the gravity of the offence and the degree of responsibility of the offender; (2) the judge imposed an unjust sanction that unduly emphasizes denunciation or deterrence and provides no assistance in rehabilitating the offender; (3) the judge imposed a sentence that fails to properly consider the relevant aggravating or mitigating circumstances concerning the offence or the offender; (4) the judge imposed consecutive parole ineligibility periods where their combined, total effect is “unduly long or harsh;” and/or (5) the judge imposed a total sentence that is otherwise unfit. Accordingly, any multiple murder offender has the benefit of a broad scope of appellate review by a higher court to ensure the fitness of any impugned sentence.

IV

The Alleged Charter Violations

General Conclusions

[28] The accused contends that s. 745.51 of the Criminal Code violates his right to be free from cruel and unusual punishment, as guaranteed by s. 12 of the Charter. More particularly, the accused argues that this provision violates s. 12 of the Charter in two ways: (1) it permits the imposition of grossly disproportionate sentences in excess of 25 years duration; and (2) it permits the imposition of sentences which demean and impinge upon human dignity, in that such sentences can be life-long terms of imprisonment, while providing no prospect of subsequent review and reducibility.

[29] The accused also contends that s. 745.51 of the Criminal Code violates his right not to be deprived of his life, liberty, or security of the person except in accordance with the principles of fundamental justice, contrary to s. 7 of the Charter. More particularly, the accused argues that this provision violates s. 7 of the Charter because it permits the imposition of sentences that are arbitrary, overbroad, grossly disproportionate, and that would shock the conscience of Canadians, as s. 745.51 of the Code permits life-long sentences of imprisonment without the prospect or hope of review and eventual release, notwithstanding any rehabilitative efforts by the accused or other changes that may take place over time.

[30] I reject each of these overlapping and interrelated arguments.

[31] First, in my view, s. 745.51 of the Criminal Code does not violate s. 12 of the Charter. While it permits the imposition of consecutive periods of parole eligibility that may, in some cases, effectively amount to a sentence of life imprisonment without parole, s. 745.51 does not permit the imposition of grossly disproportionate sentences. In other words, in my view, there is nothing grossly disproportionate about the imposition of an effective sentence of life imprisonment, without parole, for an adult offender who has murdered at least two different victims. Further, even if life-long sentences of imprisonment without the prospect of potential release after 25 years was contrary to s. 12 of the Charter, s. 745.51 of the Criminal Code would not breach such a rule. The availability of the royal prerogative of mercy gives offenders who are subject to lengthy consecutive periods of parole ineligibility in multiple murder cases a realistic hope that they may eventually be released.

[32] Second, s. 745.51 of the Criminal Code does not, in my opinion, violate s. 7 of the Charter. The impugned legislation is neither arbitrary nor overbroad in its scope, and it does not permit the imposition of grossly disproportionate sentences that would shock the conscience of Canadians. Rather, s. 745.51 permits the imposition of sentences that proportionally reflect the gravity and consequences of the commission of multiple murders by one offender.

[33] In short, I agree with the conclusion reached by Ewaschuk J. in R. v. Husbands, [2015] O.J. No 2674 (S.C.J.), that s. 745.51 of the Criminal Code is valid legislation, contrary to neither s. 7 nor s. 12 of the Charter.

V

Cruel and Unusual Punishment

Section 12 of the Charter of Rights

A. The Constitutional Standard – A “Grossly Disproportionate” Sentence

[34] Proportionality is clearly a fundamental sentencing principle. This is statutorily recognized in s. 718.1 of the Criminal Code, which provides that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[35] In R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 36-37, the Supreme Court of Canada observed that the “fundamental principle” of proportionality has “long been a central tenet of the sentencing process.” The court described proportionality as “the sine qua non of a just sanction.” The court explained that the proportionality principle “ensures that a sentence reflects the gravity of the offence” and this is “closely tied to the objective of denunciation” and “promotes justice for victims and ensures public confidence in the justice system.” The court further explained that proportionality also serves a limiting or restraining function by ensuring that a sentence does not exceed what is appropriate, given the offender’s moral blameworthiness. See also R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1, 186 C.C.C. (3d) 129 (C.A.), at paras. 88-95; R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309, at para. 12; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 40-42; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at paras. 39-47.

[36] Nevertheless, not every disproportionate, excessive or otherwise unfit sentence can properly be described as “cruel and unusual punishment” within the meaning of s. 12 of the Charter. The Supreme Court of Canada has set a “high bar” for what constitutes “cruel and unusual punishment” under s. 12 of the Charter. See R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 39. Indeed, the jurisprudence is clear that there will only be a violation of s. 12 of the Charter where the sentence imposed is “grossly disproportionate” to the punishment that is appropriate, given the circumstances of the offence and the offender. In other words, to be properly viewed as “grossly disproportionate,” the sentence imposed must be “so excessive as to outrage standards of decency,” or be “abhorrent or intolerable” to Canadian society. See R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, at pp. 1072-1074; R. v. Goltz, 1991 CanLII 51 (SCC), [1991] 3 S.C.R. 485, at pp. 498-503; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96. at para. 14; R. v. Lloyd, at para. 24; R. v. Morrison, 2017 ONCA 582, 136 O.R. (3d) 545, at paras. 116-118.

B. Mandatory Minimums – Individualized Consideration and Reasonable Hypotheticals

[37] In R. v. Nur, at paras. 38-39, 47-77, and R. v. Lloyd, at paras. 22-24, the Supreme Court of Canada clarified the necessary analysis for determining whether a mandatory minimum sentence constitutes “cruel and unusual punishment” in breach of s. 12 of the Charter. There is a two-step analysis. See also R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at paras. 26-33; R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3, at para. 75-78.

[38] First, the court must determine whether the provision imposes cruel and unusual punishment on the individual offender before the court, by requiring the imposition of a grossly disproportionate sentence, given the circumstances of the offences and the offender. This step of the analysis requires the court to consider what constitutes a generally proportionate sentence for the offences in question in light of the applicable objectives and principles of sentencing. The court should consider “the rough scale of the appropriate sentence” without necessarily fixing the sentence or sentencing range at a specific point. The court must ask whether the mandatory minimum sentence “requires the judge to impose a sentence that is grossly disproportionate to the offence and its circumstances.”

[39] The court must not only conduct this “particularized inquiry” focusing on the individual offence and circumstances of the offender, but also must determine whether a breach of s. 12 of the Charter arises from other reasonably foreseeable applications of the impugned legislation. This is the second step of the analysis. This exercise of considering “reasonable hypotheticals” must be guided by common sense and judicial experience, without relying on far-fetched speculation, or remotely imaginable factual scenarios.

C. The Analysis in the Present Case

[40] Of course, s. 745.51 of the Criminal Code does not require sentencing courts to impose any mandatory minimum sentence. Further, as I have indicated, it does not require the imposition of consecutive periods of parole ineligibility in cases of multiple murders. Rather, the provision only provides the discretionary jurisdiction to permit sentencing judges to order consecutive periods of parole ineligibility, in appropriate cases, where an offender has been convicted of multiple murders. Accordingly, the constitutional attack by the accused in the present case is not on the validity of any mandatory minimum sentence, but rather is on validity of the discretionary maximum sentence that might be imposed on an offender under s. 745.51 of the Code.

[41] Nevertheless, the parties have advanced their arguments in this case on the basis that the governing analysis as to the constitutional validity of s. 745.51 of the Criminal Code should include the two-step analysis applicable in consideration of mandatory minimum sentences. While I will consider the validity of s. 745.51 of the Code in accordance with that two-step analysis, as suggested by the parties, I will also consider the validity of the impugned provision more globally, against the generally applicable constitutional standard of “gross disproportionality” under s. 12 of the Charter. The issue in this regard is simply whether s. 745.51 of the Code, considered in the context of the governing sentencing principles, permits the imposition of a sentence that constitutes “cruel and unusual punishment” under s. 12 of the Charter.

D. The Individualized Inquiry in the Present Case

[42] The first question is whether s. 745.51 of the Code imposes cruel and unusual punishment on the accused, by requiring the imposition of a grossly disproportionate sentence, having regard to the particular circumstances of the offences and the individual accused before the court. I have concluded that it does not.

[43] In the present case, the accused, having been found guilty of first-degree murder, must be sentenced to life imprisonment without eligibility for release on parole for 25 years. That is the mandatory minimum sentence for the crime of first-degree murder. This result is dictated by the operation of s. 745 (a) of the Criminal Code. This provision of the Code has been conclusively determined to be constitutionally valid by the Supreme Court of Canada. See R. v. Luxton, 1990 CanLII 83 (SCC), [1990] 2 S.C.R. 711. Not surprisingly, the validity of this provision is not now challenged by the accused in the present case. Accordingly, when the accused is inevitably sentenced in accordance with this provision, to life imprisonment without eligibility for release on parole for 25 years, there can be no complaint that this sentence is grossly disproportionate – or even unfit.

[44] The only individualized potential complaint that could be made by the accused in the present case, in relation to the potential application of s. 745.51 of the Criminal Code, is if the parole ineligibility period of 25 years for his first-degree murder is ordered to be served consecutively to his earlier parole ineligibility period of 16 years, which was imposed in connection with his earlier conviction for second-degree murder. Such an order, if made, would result in the accused serving a total of 41 years before being eligible for release on full parole on his sentences of life imprisonment.

[45] As I have already noted, however, importantly, s. 745.51 of the Criminal Code is not a mandatory sentencing provision. Sentencing judges in cases involving multiple murders by the offender are not required to order that parole ineligibility periods imposed in connection with each murder be served consecutively. That decision, namely, whether to make the parole ineligibility periods concurrent or consecutive, is legislatively left within the discretion of the sentencing court, to be determined upon a wise application of all of the relevant sentencing principles in the unique factual context of each individual case. In some cases, where appropriate, the parole ineligibility periods may be made consecutive. In others, where inappropriate, the parole ineligibility periods may be made concurrent.

[46] In these circumstances, it is simply not possible to conclude that s. 745.51 of the Criminal Code imposes “cruel and unusual punishment” on the accused by requiring the imposition of a grossly disproportionate sentence, given his own personal circumstances and the circumstances of his two murder offences. If the making of an order under s. 745.51 of Code, resulting in a total 41-year period of parole ineligibility, would be “grossly disproportionate” to the circumstances of the accused and his offences, it will not be imposed. Indeed, an order of consecutive periods of parole ineligibility will not be imposed if such an order would result in even a “disproportionate” sentence. The discretionary power, conveyed to sentencing courts in s. 745.51 of the Code, to decline to impose consecutive periods of parole ineligibility in appropriate cases itself prevents the imposition of what might theoretically be grossly disproportionate sentences. Of course, if any sentencing judge imposes even a disproportionate sentence (let alone a grossly disproportionate sentence) on an accused convicted of multiple murders, the fitness of that sentence can be reviewed and varied by the Court of Appeal.

[47] Accordingly, in relation to the first step of the governing analysis under s. 12 of the Charter, it must be concluded that s. 745.51 of the Code does not impose any “cruel and unusual punishment” on the accused, as it does not require the imposition of a grossly disproportionate sentence, in light of the circumstances of the murder offences and the personal circumstances of the individual accused.

[48] In any event, even if the consecutive parole ineligibility order being sought by the Crown in the present case were ultimately to be imposed (an issue that remains to be determined after a full sentencing hearing), in my view that sentence would not be a “grossly disproportionate” sentence in all of the circumstances of this case. While such an order would prevent the accused from being eligible for release on parole for a total of 41 years, such a sentence would not, amount to a violation of s. 12 of the Charter in all of the circumstances.

E. Reasonably Foreseeable Applications of s. 745.51 of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

1. Introduction

[49] As I have indicated, defence counsel contends that s. 745.51 of the Criminal Code is contrary to s. 12 of the Charter because it effectively permits the imposition of life-long sentences of imprisonment on offenders convicted of multiple murders, without any hope of eventual release. Defence counsel notes, for example, that in four of the reported cases applying s. 745.51 of the Code, adult offenders, convicted of multiple murders have been sentenced to consecutive periods of parole ineligibility totaling 75 years. Given current realistic life expectancies, defence counsel argues that the offenders in those cases will likely die in prison, without ever having become eligible for release on parole. Defence counsel emphasizes that these factual scenarios are not simply “reasonable hypotheticals” – they are real-life cases. Defence counsel argues that, as it is contrary to s. 12 of the Charter to impose life-long sentences of imprisonment on any offender, without hope of eventual release, s. 745.51 of the Code authorizes the imposition of cruel and unusual punishment in violation of s. 12 of the Charter. Indeed, defence counsel argues that s. 12 of the Charter constitutionally prevents the imposition of a life sentence with any parole ineligibility period beyond 25 years. I disagree. More particularly, I reject the three fundamental, underlying premises of this argument.

[50] First, I reject the argument that it would necessarily constitute “cruel and unusual punishment,” contrary to s. 12 of the Charter, for Parliament to impose a life sentence of imprisonment on any adult offender, even one convicted of multiple murders, while denying that offender the prospect of review and potential release on parole beyond the maximum period of 25 years. Defence counsel could offer no judicial authority in support of this proposition, and I am not aware of any such judicial authority. Moreover, as a matter of general principle, I can discern no proper constitutional basis upon which a court could judicially create such a precisely fixed limitation on the legislative jurisdiction of Parliament to determine the appropriate punishment for offenders who have committed, some on multiple occasions, the most serious offence known to the criminal law.[^2]

[51] Second, I reject the argument that it would amount to “cruel and unusual punishment,” contrary to s. 12 of the Charter, for Parliament to permit sentencing courts to effectively impose a life-long term of imprisonment, without the possibility of release on parole, on an adult offender guilty of multiple murders. In my view, such a sentence could not fairly or accurately be described as “grossly disproportionate.” Such an adult offender, by violently taking the lives of two or more other members of society, should reasonably expect that one of the potential sentencing options, in any civilized, free and democratic society, would be to spend the rest of his or her natural life in prison. Such sentences of life-long imprisonment without parole are available, and imposed with some regularity, on adults guilty of even a single murder in the United States, without constitutional question under the Eighth Amendment prohibition against “cruel and unusual punishment.” Similar “whole life” or “natural life” sentences are also permitted in the United Kingdom, Australia and New Zealand, and such sentences have been generally held to comply with the European Convention Article 3 prohibition against “torture or inhuman or degrading treatment or punishment.” The important legislation and jurisprudence from these other countries is discussed in more detail below. Accordingly, to the extent that the application of s. 745.51 of the Criminal Code can be viewed as statutorily permitting what might be, in some cases and in practical terms, the imposition of a life sentence without parole on adults guilty of multiple murders, it is not contrary to s. 12 of the Charter.

[52] Third, I reject the argument that the provisions of the Criminal Code currently permit the imposition of life-long terms of imprisonment, without any hope of eventual release, on adult offenders guilty of multiple murders. The application of s. 745.51 of the Criminal Code will not, in many circumstances, amount to a life sentence of imprisonment without parole, even when consecutive parole ineligibility periods are ordered. The circumstances of the present case illustrate this point. If the parole ineligibility periods were ordered to be served consecutively in the present case, the accused would be eligible for release on full parole at the age of 63. He would be eligible for release on day-parole at age 60. Accordingly, such an order would not likely amount to a sentence of life imprisonment without parole eligibility. However, even in cases where it might more realistically be said that an order of consecutive parole eligibility periods will practically result in a life-long sentence of imprisonment, such an offender is not deprived of the hope of potential eventual release. There is always the royal prerogative of mercy. The availability of such potential, future, executive clemency has been held, by the courts in the United Kingdom and the European Court of Human Rights to offer sufficient hope to adult offenders serving sentences of “whole life” terms of imprisonment, to comply with Article 3 of the European Convention prohibiting “torture or inhuman or degrading treatment or punishment.”

[53] In addition, as outlined in more detail below, the relevant Canadian jurisprudence supports the conclusion that the operation of s. 745.51 of the Code does not infringe the constitutional rights protected by s. 12 of the Charter (or s. 7 of the Charter for that matter).

2. The Canadian Jurisprudence To-Date Applying s. 745.51 of the Code

[54] In Canada, at least to-date, our courts have (1) permitted the imposition of sentences of life imprisonment without eligibility for parole for what is likely to be most, if not all, of the offenders remaining life; and (2) rejected arguments attacking the constitutional validity of the federal legislation permitting the imposition of such sentences.

[55] For example, out of the 12 reported Canadian cases determined to-date that involved multiple murders, and which considered the application of s. 745.51 of the Criminal Code, in eight of those decisions the courts imposed consecutive periods of parole ineligibility, and in half of those decisions the consecutive parole ineligibility periods totaled 75 years:

• In R. v. Husbands, [2015] O.J. No 2674 (S.C.J.), reversed, 2017 ONCA 607, [2017] O.J. No. 3795, the accused attended a mall food court and, in this crowded public area, opened fire, shooting and killing two victims. Stray bullets hit five other bystanders. The accused was a long-standing drug dealer with a long history of violating bail orders. At trial, the accused was convicted of, among other offences, two counts of second-degree murder and five counts of aggravated assault. The trial judge dismissed a constitutional challenge by the accused to declare s. 745.51 of the Criminal Code invalid on the basis of alleged violations of ss. 7 and 12 of the Charter of Rights. See R. v. Husbands, [2015] O.J. No. 2673. Ultimately, with respect to the two convictions for murder, the accused was sentenced to life imprisonment and 15 years of parole ineligibility (consecutive), for a total of 30 years of parole ineligibility. On appeal, the convictions were set aside as the jury selection process was fatally flawed.
• In R. v. Clorina, 2015 ABQB 252, [2015] A.J. No. 461, the accused pled guilty to first-degree murder, second-degree murder and unlawful sexual touching. He had been involved in a sexual relationship with an 11-year-old girl. When she became pregnant, the accused got into an altercation with her mother and stabbed her to death. He then killed her young son in order to eliminate a potential witness. The accused attempted to place the blame on an unknown third party. The accused had no prior criminal record and expressed remorse for these offences. Following a joint submission, the accused was sentenced to life imprisonment and 25 years of parole ineligibility in relation to the first-degree murder and 10 years of parole ineligibility (consecutive) in relation to the second-degree murder, for a total of 35 years of parole ineligibility.
• In R. v. Baumgartner, 2013 ABQB 761, [2013] A.J. No. 1497, the accused, an armoured car security guard, executed two of his co-workers with gun shots to the head and then ambushed a third. He also shot, but did not kill, a fourth guard. The accused stole $400,000 and fled. The accused was 21 years old, with no prior criminal record. The accused pled guilty to one count of first-degree murder, two counts of second-degree murder, and one count of attempted murder. Following a joint submission, the accused was sentenced, with respect to the murders, to life imprisonment with 25 years of parole ineligibility on the first-degree murder, 15 years of parole ineligibility (consecutive) for one of the second-degree murders, and 15 years of parole ineligibility (concurrent) for the remaining second-degree murder, for a total parole ineligibility period of 40 years.
• In R. v. Vuozzo, 2015 PESC 14, [2015] P.E.I.J. No. 17, the accused travelled to the victim’s residence and, in an act of revenge for a car accident that took place more than 40 years earlier, shot and killed two men, a father and his son. The accused was gainfully employed, suffered from depression, and had no prior criminal record. The accused pled guilty to first-degree murder and second-degree murder and was sentenced to life imprisonment on both counts, with 25 years of parole ineligibility for the first-degree murder and 10 years of parole ineligibility for the second-degree murder, for a total parole ineligibility period of 35 years.
• In R. v. Bourque, 2014 NBQB 237, [2014] N.B.J. No. 295, the accused walked through a subdivision, wearing camouflage, with two guns and a knife. When police officers were summoned, the accused ambushed them, and started shooting them, ultimately killing three and wounding two others. The accused was 24 years old and had no prior criminal record. The accused pled guilty to three counts of first-degree murder and two counts of attempted murder. In relation to the murder offences, the accused was sentenced to life imprisonment on each count, with 25 years of parole ineligibility on each murder, consecutive, for a total of 75 years of parole ineligibility.
• In R. v. Ostamas, 2016 MBQB 136, [2016] M.J. No. 197, the accused brutally killed three victims, seemingly chosen at random. All three victims were homeless, intoxicated and vulnerable. The accused had a history of mental illness and an extensive criminal record for crimes of violence. The accused pled guilty to three counts of second-degree murder and, following a joint submission, was sentenced, on each count, to life imprisonment without eligibility for release on parole for 25 years. Further, the parole ineligibility periods were ordered to be served consecutively, for a total parole ineligibility period of 75 years.
• In R. v. Saretzky, 2017 ABQB 496, [2017] A.J. No. 831, the accused broke into the homes of his first two victims at night and attacked them, brutally killing them with a knife. The accused then abducted his third victim, a two-year old child, holding her hostage for a time before ultimately strangling her to death. The accused was 22 years old, with no prior criminal record. He was convicted of three counts of first-degree murder and sentenced to life imprisonment with three consecutive periods of 25 years parole ineligibility, for a total of 75 years of parole ineligibility.
• In R. v. Garland, 2017 ABQB 198, [2017] A.J. No. 853, the accused scouted the residence of his first two victims, and purchased tools to be able to confine and torture them. The accused broke into their house and abducted them, along with a third victim, their grandchild, and brought them back to his farm, where they were killed. The accused was 57 years old and had a prior criminal record for drug offences. The accused was convicted of three counts of first-degree murder and sentenced to life imprisonment with three (consecutive) periods of 25 years parole ineligibility, for a total of 75 years of parole ineligibility.

[56] This body of developing jurisprudence under the application of s. 745.51 of the [Criminal Code][^3], suggests that a number of Canadian judges consider (1) that there is no constitutional rule that prohibits the imposition of sentences of life imprisonment with a parole ineligibility period beyond a maximum of 25 years; and (2) that consecutive periods of parole ineligibility for offenders convicted of multiple murders is not even a disproportionate sentence in some cases, let alone a grossly disproportionate sentence, even in cases where the total years of parole ineligibility results in an effective sentence of life imprisonment without parole.

3. The Crime of Murder – Life Imprisonment for a Single Crime

[57] It is important to recall that the crime of murder is the most serious offence known to the criminal law. Murder is the ultimate deprivation of all of the victim’s rights and interests, as it is the absolute and irreversible extinguishment of their life. In killing someone, the offender robs them of everything – everything they ever had, and everything they ever might have had. Their relationships, possessions, hopes and dreams are all irrevocably destroyed in that murderous instant. Their family and friends are left behind to grieve their violent demise. Death brings an earthly finality and gravity of consequence that is simply unparalleled by any other crime.

[58] Parliament has, accordingly, pursuant to s. 745 of the Criminal Code, required the mandatory imposition of a sentence of life imprisonment in all cases of murder. Periods of parole ineligibility may vary, depending upon (1) whether the murder is classified as first-degree or second-degree murder; or (2) whether the accused has previously committed an offence of murder, or an intentional killing in connection with an offence contrary to ss. 4 or 6 of the Crimes Against Humanity and War Crimes Act, S.C. 2000, chap. 24. But despite the possible variations in parole ineligibility periods, the mandatory sentence for all murder offences is life imprisonment. Moreover, the Supreme Court of Canada has held that the imposition of such a sentence, even with a 25-year parole ineligibility period, is constitutionally valid legislation, even for an accused convicted of a single “constructive” first-degree murder under s. 231(5) of the Code.

[59] As the Supreme Court noted in R. v. Latimer, the commission of any murder involves “the most serious of all possible consequences, namely, the death of the victim.” In addition, offenders guilty of murder have wrought this irreparable and devastating loss of life while displaying the highest degree of moral culpability. As the Supreme Court of Canada observed in R. v. Arkell, 1990 CanLII 82 (SCC), [1990] 2 S.C.R. 695, at p. 703, a conviction for murder, the “most serious crime in our Criminal Code,” requires proof beyond a reasonable doubt of “subjective foresight of death” – the “highest level of moral culpability.” See also R. v. Martineau, 1990 CanLII 80 (SCC), [1990] 2 S.C.R. 633, at p. 645; R. v. Luxton, 1990 CanLII 83 (SCC), [1990] 2 S.C.R. 711, at p. 724; R. v. Morrison, at paras. 82, 94.

[60] In R. v. Luxton, the Supreme Court of Canada upheld the constitutional validity of the mandatory sentence of life imprisonment, without eligibility for release on parole for 25 years, prescribed by s. 745 (a) of the Criminal Code, in cases involving the constructive first-degree murder of one victim, as defined by what is now s. 231(5) (e) of the Criminal Code. The court in Luxton accepted, at p. 721, that a sentencing scheme “must exhibit a proportionality to the seriousness of the offence,” in that “there must be a gradation of punishments according to the malignity of the offences.” The court also accepted, however, that a sentencing scheme must also take into account “other factors that are of significance for the societal interest in punishing wrongdoers,” including the protection of the public. See also R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, 37 C.C.C. (3d) 1, at pp. 328-329.

[61] The court in Luxton concluded, at p. 721, that the combination of what is now ss. 231(5)(e) and 745(a) of the Code “clearly demonstrates a proportionality between the moral turpitude of the offender and the malignity of the offence,” which aligns with the other objectives of the sentencing system. In this regard, the court noted that it was “dealing with individuals that have committed murder and have done so with the now constitutionally mandated mens rea of subjective foresight of death.”

[62] Moreover, the court in Luxton concluded, at p. 722, that the decision of Parliament to “elevate” murders committed while the offender commits the offence of forcible confinement to first-degree murder was not arbitrary, but rather was “consonant with the principle of proportionality between the blameworthiness of the offender and the punishment,” and “consistent with the individualization of sentencing.” Accordingly, the court reasoned, there was no violation of any principle of fundamental justice under s. 7 of the Charter by the mandatory imposition of a sentence of life imprisonment, without eligibility for parole for 25 years, for an offender convicted of first-degree murder pursuant to s. 231(5) (e) of the Criminal Code.

[63] The court in Luxton also rejected the argument that the combined effect of ss. 231(5) (e) and 745 (a) of the Criminal Code constituted “cruel and unusual punishment” in violation of s. 12 of the Charter. In reaching this conclusion, the court stated, at pp. 724-725:

These sections provide for punishment of the most serious crime in our criminal law, that of first degree murder. This is a crime that carries with it the most serious level of moral blameworthiness, namely, subjective foresight of death. The penalty is severe and deservedly so. The minimum 25 years to be served before eligibility for parole reflects society’s condemnation of a person who has exploited a position of power and dominance to the gravest extent possible by murdering the person that he or she is forcibly confining. The punishment is not excessive and clearly does not outrage our standards of decency. In my view, it is within the purview of Parliament, in order to meet the objectives of a rational system of sentencing, to treat our most serious crime with a[n] appropriate degree of certainty and severity. I reiterate that even in the case of first degree murder, Parliament has been sensitive to the particular circumstances of each offender through various provisions allowing for the royal prerogative of mercy, the availability of escorted absences from custody for humanitarian and rehabilitative purposes and for early parole …

4. Substantially Increased Parole Ineligibility Period for Second Offence of Murder

[64] Parliament has also chosen to impose a greater mandatory punishment on an accused who has committed more than one murder. According to s. 745 (b) of the Criminal Code, the sentence of life imprisonment for an offender convicted of second-degree murder, where that offender has been previously convicted of “culpable homicide that is murder,” shall be life imprisonment without eligibility for release on parole for 25 years. Accordingly, if an offender has already been convicted of murder, if he or she is convicted of murder again, regardless of whether that subsequent murder is classified as first or second-degree murder, the sentence for that subsequent murder is life imprisonment without eligibility for release on parole for 25 years. In short, any subsequent murder will be punished as if it was a first-degree murder.

[65] The courts have also upheld the constitutional validity of this legislation. In R. v. Elton, 2014 BCSC 693, 11 C.R. (7th) 382, affirmed, 2016 BCCA 440, [2016] B.C.J. No. 2323, the accused was convicted of the second-degree murder in connection with the stabbing and strangulation death of his wife. It was accepted that the accused acted out of mercy, to end her ongoing suffering, as she was chronically ill. At the time he killed his wife, the accused was on parole for a much earlier conviction of second-degree murder, which had carried a sentence of life imprisonment without parole eligibility for a period of ten years. The accused had been at large, on parole, for more than 20 years at the time he killed his wife. The accused sought a declaration that s. 745 (b) of the Criminal Code was in violation of ss. 7 and 12 of the Charter and unconstitutional in requiring an automatic mandatory parole ineligibility period of 25 years for a second offence of murder. The accused noted that, if he was not eligible for parole for 25 years, he could not possibly be released until he was more than 78 years old. The application was dismissed.

[66] With respect to the argument under s. 7 of the Charter, Truscott J. followed, at paras. 28-42, the earlier decision in R. v. Falkner, 2004 BCSC 986, 188 C.C.C. (3d) 406, which upheld the constitutional validity of s. 745(b) of the Code in response to a similar challenge, on the basis that this provision (1) was a “legitimate exercise” of Parliament’s authority to enact legislation for the purpose of “protecting the public and denouncing and punishing those who have murdered a second time following a prior conviction for murder;” (2) applied an “organizing principle” to only a “narrow class of persons who have committed two extremely serious crimes with a high degree of moral turpitude and culpability;” and (3) is in line with the principle of individual gradation of sentences for offenders who continue to commit further serious offences.

[67] With respect to the argument advanced under s. 12 of the Charter, at paras. 139-149, Truscott J. concluded that, in all of the circumstances, the applicable increased period of 25 years of parole ineligibility was “severe” but “not grossly disproportionate” so as to constitute “cruel and unusual punishment” in violation of s. 12 of the Charter. In reaching this conclusion, Truscott J., again, relied on the fact that s. 745(b) of the Code was enacted with a “clear, organizing principle” applicable “only to a narrow class of persons who have committed two extremely serious crimes with a high degree of moral turpitude and culpability,” which justifies an increased period of parole ineligibility. Truscott J. also noted that the impugned provision “accords with the principle of individual gradation of sentences and is in accord with valid penological goals and sentencing principles as well as proportionate to the gravity of the repeated crime.”

[68] The enactment of s. 745(b) of the Code and the decision in Elton upholding the constitutional validity of that legislation supports the notion that offenders guilty of multiple murders must be subject to a greater punishment than offenders guilty of only one murder.

5. The Canadian Extradition Cases – Life Imprisonment Without Parole

[69] The governing jurisprudence in Canada establishes that adult fugitives may be properly ordered to be extradited to other countries, and surrendered to such countries, provided that there is sufficient evidence in support of the alleged offences, even if they stand to be sentenced to life imprisonment without any potential release on parole if they are ultimately convicted of such offences. According to the governing judicial authorities, the imposition of such a sentence would simply not sufficiently “shock the conscience” of Canadians such that the extradition would be considered “unjust or oppressive.” See Kindler v. Canada (Minister of Justice), 1991 CanLII 78 (SCC), [1991] 2 S.C.R. 779, at p. 849; Re Ng, 1991 CanLII 79 (SCC), [1991] 2 S.C.R. 858; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, at para. 28; Suresh v. Canada (Minister of Citizenship and Immigration), at paras. 50-51, 53-54.

[70] For example, in Gwynne v. Canada (Minister of Justice), 1998 CanLII 14972 (BC CA), [1998] B.C.J. No. 222, 103 B.C.A.C. 1, leave denied, [1998] S.C.C.A. No. 95, the state of Alabama sought the extradition of the accused. Earlier, he had been convicted on two counts of attempted extortion in Alabama and sentenced, as a “habitual offender” to consecutive 60-year terms of imprisonment. After serving nine years, the accused escaped and fled to Canada. The accused argued that his surrender was contrary to his rights under s. 7 of the Charte as he had more than 110 years of imprisonment left to serve on his sentence, and he had little chance of parole in his lifetime. The British Columbia Court of Appeal declined to interfere with the surrender order. Goldie J.A., delivering the judgment of the majority of the court, at para. 27, concluded that the “severity alone” of the remaining sentence was “not in itself ground for refusing to extradite him.” Goldie J.A. also noted that while it was “harsh” to impose consecutive 60-year sentences, it was “possible” under our own Criminal Code for an offender to be sentenced to a term of parole ineligibility that could cause a “middle-aged offender to doubt” whether “his or her normal life expectancy would exceed the period of parole ineligibility.”

[71] More recently, in United States v. ‘Isa, 2014 ABCA 256, 313 C.C.C. (3d) 362, leave denied, [2014] S.C.C.A. No. 445, the United States of America sought the extradition of the accused on charges of conspiracy to murder Americans abroad, five counts of aiding and abetting the murder of United States nationals abroad, and providing material support to terrorist conduct. The United States alleged, essentially, that the accused was member of a terrorist facilitation network in Libya, Iraq, Tunisia and Syria, that was responsible for two suicide bombing attacks in which United States and allied personnel were killed. The extradition judge committed the accused for extradition, and the Minister of Justice decided to surrender him for extradition. The accused challenged these decisions on the basis that they were “unjust or oppressive,” in that they were in violation of his rights to liberty and the security of his person under s. 7 of the Charter. In advancing this argument the accused relied on the fact that, if he was ultimately convicted in the United States, he faced the possibility of being sentenced to life imprisonment without parole. The Alberta Court of Appeal rejected this argument. The court concluded, at para. 71, that while life imprisonment without parole is “not a sentence available in Canada” for these charges, it “would not sufficiently shock the conscience of Canadians” such that the surrender of the accused to face those charges would be “unjust or oppressive.” In reaching this conclusion the court stated, at para. 72:

Life sentences are known to Canadian law. Indeed, the Supreme Court has affirmed the fitness of such a sentence for similar terrorist activity prosecuted in Canada … While it is true that, by operation of section 745 of the Criminal Code, such sentences stipulate parole eligibility after the passage of a period of time (ie 25 years for first degree murder), we do not accept this distinction as bringing the appellant's circumstances within the scope of what the Supreme Court described in Burns … as “a particular treatment or punishment [which] may sufficiently violate our sense of fundamental justice as to tilt the balance against extradition.” The Supreme Court gave examples of stoning adulterers or amputating the hands of thieves, where “the punishment is so extreme that it becomes the controlling issue in the extradition and overwhelms the rest of the analysis.” Life imprisonment without parole in these circumstances falls short of this threshold.

[72] Similarly, in United States v. Qumsyeh, 2015 ONCA 551, 126 O.R. (3d) 641, leave denied, 2015 CarswellOnt 18513, the United States sought the extradition of the accused on a charge of first-degree murder in connection with the killing of his ex-wife. The extradition judge committed the accused for extradition, and the Minister of Justice ordered his surrender for extradition. The accused challenged these decisions, in part on the basis that if ultimately convicted, he would receive a mandatory life sentence without the possibility of parole, and such a harsh punishment would shock the conscience of the Canadian public. The Court of Appeal for Ontario rejected this argument. Citing the Supreme Court of Canada’s decision in United States v. Burns, the court concluded, at para. 25, that “[e]xtradition to face the possibility of life imprisonment without the possibility of parole is not unreasonable,” as a sentence of life imprisonment without parole would “not sufficiently shock the conscience of Canadians so as to make surrender unjust or oppressive.”

[73] Most recently, in United States v. Lane, 2017 ONCA 396, 349 C.C.C. (3d) 311, Hourigan J.A., delivering the judgment of the court, at paras. 85-90, noted that the governing legal test, of whether a sentence “would shock the conscience of Canadians,” is a “very strict one” that constitutionally limits the Minister’s decision to surrender “only in very exceptional circumstances.” Hourigan J.A. commented that “absent a potential death penalty or sentence that would involve some form of torture, the severity of a sentence will not generally shock the conscience of Canadians.” See also United States v. J.H.K. (2002) 2002 CanLII 44985 (ON CA), 160 O.A.C. 149, 165 C.C.C. (3d) 449, at paras. 4, 30-42; United States v. Wilcox, 2015 BCCA 39, 321 C.C.C. (3d) 82, at paras. 23-41, leave refused, [2015] S.C.C.A. No. 124.

[74] The same rule may not operate, however, in a similar fashion for young offenders. In Fowler c. Canada (Ministre de la Justice), 2011 QCCA 1076, 96 C.R. (6th) 200, the United States sought the extradition of a 16-year old fugitive to face charges of second-degree murder. If convicted, the accused was potentially liable to a sentence of life imprisonment. The extradition judge committed the accused for extradition, and the Minister of Justice ordered his surrender for extradition. The Minister had been told only that the accused would be eligible for release on parole after an undefined period of time. The accused challenged these decisions on the basis that they would “shock the conscience” of Canadians and, thus, should bar his extradition under s. 7 of the Charter. The Quebec Court of Appeal, at para. 37, set aside the surrender order on the basis that it was “unreasonable” for the Minister to order the surrender of the accused “without first checking such parole eligibility period” and “without having obtained information” on the issue. Further, the court concluded, at para. 50, that “it would be unacceptable and unreasonable to surrender the [accused] if [the state law] allowed life imprisonment without the possibility of parole,” especially as it appeared that the state parole system had been abolished.

[75] The applicable legal standard that governs extradition proceedings admittedly does not precisely mirror the standard for gross disproportionality under s. 12 of the Charter. However, it is difficult to understand how a sentence of life imprisonment without parole, on an adult offender, would not “shock the conscience” of Canadians so as to prevent their extradition to another country for the potential imposition of such a sentence, but would be “so excessive as to outrage standards of decency,” or be viewed by Canadian society as “abhorrent or intolerable” to prevent the imposition of such a sentence on an adult offender within Canada’s territorial borders.[^4]

[76] In my view, this body of jurisprudence, that permits the extradition from Canada of adult fugitives to countries where they face the potential punishment of life imprisonment without parole, provides strong support for the position that the potential imposition of consecutive periods of parole ineligibility on adult offenders that may, in some circumstances, effectively amount to a life sentence without parole, is not contrary to s. 12 of the Charter.

6. The International Perspective on Life Imprisonment Without Parole

a. Introduction

[77] The Canadian jurisprudence outlined above strongly supports the constitutional validity of s. 745.51 of the Criminal Code. However, in advancing their respective positions, the parties have also gathered, and rely upon, a diverse body of international legislation and jurisprudence regarding the punishment for murder and the existence of any constitutional or human rights-based restrictions concerning the future potential release of such offenders. While none of these foreign statutes or judicial authorities are binding in Canada, they will be discussed below, in some detail, as they usefully provide a broader, comparative perspective through which to consider the constitutional validity of s. 745.51 of the Criminal Code, as measured against the prohibition of “cruel and unusual punishment” contained in s. 12 of the Charter.

[78] This review of the law in other jurisdictions similar to ours in Canada, focuses upon the legislative use of life-long sentences of imprisonment, without parole, and whether (and the extent to which) there are any constitutional or judicial restrictions on the imposition of such “whole life” or “natural life” sentences. This review will, accordingly, assist in assessing the argument by defence counsel in the present case, that s. 745.51 of the Code violates s. 12 of the Charter because it permits the imposition of what is, in practical effect, a life-long sentence of imprisonment without parole.

[79] As this review illustrates, however, this body of foreign legislation and jurisprudence does not support the position advanced on behalf of the accused that life-long sentences of imprisonment, without parole, amount to “cruel and unusual punishment.” Rather, this review supports the constitutional validity of s. 745.51 of the Code, as it shows that the imposition of life-long sentences of imprisonment, on adult offenders, for even single offences of murder, are currently permitted in the United States, the United Kingdom, Australia and New Zealand, among other jurisdictions.

b. The United States of America

[80] Significantly, in the United States of America, the sentence of life imprisonment without parole “remains entrenched” and widely used as a sentencing option” for adult offenders, even for non-homicide crimes. Indeed, this is a sentence that is currently allowed in all states, with the single exception of Alaska.[^5] See Derek Spencer, “Hope for Murderers? International Guidance on Interpreting the Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act” (2017), 22 Can.Crim.L.Rev. 207, at pp. 217-218.

[81] Moreover, applying a “gross disproportionality” standard of review under the Eighth Amendment Bill of Rights prohibition against “cruel and unusual punishments,” the United States Supreme Court has consistently upheld the constitutional validity of such sentences. See, for example, the leading decision in Harmelin v. Michigan, 501 U. S. 957 (1991), in which the Supreme Court upheld a state sentence of life imprisonment, without parole, for an offender who was guilty of possessing a large quantity of cocaine.

[82] In Graham v. Florida, 560 U.S. 48 (2010), the Supreme Court carved out an exception to this general rule, categorically holding that the imposition of a sentence of life imprisonment without parole was constitutionally prohibited in relation to a juvenile offender guilty of a non-homicide crime. Importantly, in reaching this conclusion, Kennedy J., delivering the opinion of the court, made the following observations:

• As compared to adults, juveniles have a “transient immaturity” and an “underdeveloped sense of responsibility” and, accordingly, “are less deserving of the most severe punishments” as their actions are “not as morally reprehensible as that of an adult.” Further, juveniles are “more capable of change than are adults,” and their actions are less likely to be evidence of “irretrievably depraved character” than the actions of adults.
• Defendants who “do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers.” While serious non-homicide crimes may also “be devastating in their harm,” in terms of “moral depravity and of the injury to the person and to the public” they cannot be properly “compared to murder in their “severity and irrevocability.” This is because “life is over for the victim of the murderer.” Not so for “the victim of even a very serious non-homicide crime.” Accordingly, even other serious crimes of violence “differ from homicide crimes in a moral sense.”
• The severe sentence of life imprisonment without parole “alters the offender’s life by a forfeiture that is irrevocable” as it “deprives the convict of the most basic liberties without giving hope of restoration;” and constitutes a “denial of hope” in that “good behavior and character improvement” in the future “are immaterial” as “whatever the future might hold in store” for the offender, “he will remain in prison for the rest of his days.” This is an “especially harsh punishment for a juvenile.”

[83] In the result, Kennedy J. concluded that the limited culpability of juvenile non-homicide offenders, the severity of sentences of life imprisonment without parole, and the absence of any penological justification for such a sentence all lead to the conclusion that such a sentence is “cruel and unusual” punishment and prohibited by the Eighth Amendment for juvenile offenders who have not committed homicide.

[84] Subsequently, in Miller v. Alabama, 567 U.S. 460, the Court extended this ruling, holding that even a juvenile offender convicted of a homicide offense could not be sentenced to life in prison without parole in the absence of consideration of the juvenile’s special circumstances in light of the principles and purposes of juvenile sentencing. See also Montgomery v. Louisiana, 136 S.Ct. 718 (2016).

[85] In Miller and its companion case, two 14-year-old offenders had been convicted of murder and sentenced to life imprisonment without the possibility of parole. In neither case did the sentencing court have any discretion to impose a different punishment. Indeed, the state law in each case mandated that each juvenile die in prison even if the court would have thought that his youth and its coincident characteristics, along with the nature of the crime, made a lesser sentence, such as life imprisonment with the possibility of parole, more appropriate. The Supreme Court concluded that as the sentencing courts were prevented from considering the offender’s lessened culpability and increased capacity for change, the impugned state legislation was contrary to the jurisprudential requirement of individualized sentencing for offenders facing the most serious penalties. In the result, the court held that the mandatory imposition of a sentence of life imprisonment without parole, for juvenile offenders (under the age of 18 years at the time of their crimes), violates the Eighth Amendment’s ban on “cruel and unusual punishments.” Kagan J., delivering the opinion of the court concluded, at p. 27:

Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual punishment.

[86] Importantly, at least for present purposes, the Supreme Court of the United States has never suggested, even impliedly, that there might be any constitutional prohibition in the Bill of Rights on the imposition of sentences of life imprisonment, without parole, for adult offenders found guilty of even a single offence of murder, let alone multiple murders.

c. The United Kingdom

The Decisions of the European Court of Human Rights

[87] The United States is not the only country, with a constitutional democracy similar to ours in Canada, which permits the imposition of life-long sentences of imprisonment without parole. Such “whole life” sentences are also permitted in the United Kingdom. Moreover, the imposition of such sentences has been approved not only by the English courts, but also by the European Court of Human Rights, as not being inconsistent with Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

[88] Like Canada, following the abolition of capital punishment in England and Wales, pursuant to the Murder (Abolition of Death Penalty) Act 1965, the mandatory sentence for murder was life imprisonment. Initially, it was left to the Secretary of State to impose a “tariff” regarding the potential future release of the offender, and permitted the Secretary of State to order a “whole life” tariff on an offender. The Secretary of State also had the power to eventually order the release of an offender on compassionate grounds.

[89] The lawfulness of such life-long orders was challenged in R. v. Secretary of State for the Home Department, Ex Parte Hindley, [2001] 1 A.C. 410, but the House of Lords concluded that there was nothing unlawful about such an order. Lord Steyn interpreted the legislation as unequivocally authorizing “the detention of a person sentenced to life imprisonment for an indeterminate period which is only brought to an end by the death of the prisoner,” or if and when the Secretary of State, in the exercise of his or her discretion, decided to release the prisoner. Lord Steyn noted that, in the Divisional Court, Lord Bingham had observed that he could “see no reason, in principle, why a crime or crimes, if sufficiently heinous, should not be regarded as deserving lifelong incarceration for purposes of pure punishment.” Lord Steyn expressed his respectful agreement with this principle. Lord Steyn also concluded that there was nothing logically inconsistent with the notion of a tariff, while saying that, in some cases “the crimes are so wicked that even if the prisoner is detained until he or she dies it will not exhaust the requirements of retribution and deterrence.”

[90] The House of Lords also concluded that the imposition of such mandatory sentences of life imprisonment, in accordance with this statutory system of tariff reviews, on adult offenders convicted of murder, was not inconsistent with Article 3 of the Convention. See R. v Lichniak; R. v. Pyrah, [2002] UKHL 47.

[91] Subsequently, with the introduction of the Criminal Justice Act 2003, (U.K.) c. 44, a different system of “starting point” sentencing tariffs was legislatively provided for offenders facing a mandatory life sentence. Under this regime, adult offenders convicted of murder received a life sentence and, for most offenders, a minimum term of imprisonment (between 12 and 30 years) before potential release on parole. This would be determined according to the applicable “starting point” and consideration of the various aggravating and mitigating factors of the case. Under this legislation, however, some offenders were subject to a “whole life order,” which meant that they were never eligible for release on parole, but rather were only eligible to apply to the Secretary of State for compassionate release. According to Schedule 21 of this legislation, the appropriate “starting point” for such a whole life order was for an offender who was at least 21 years of age at the time of the offence, and the seriousness of whose offence (from the following list) was “exceptionally high:”

(1) The murder of two or more persons, where each murder involves any of the following: (a) a substantial degree of premeditation or planning; (b) the abduction of the victim; or (c) sexual or sadistic conduct;

(2) The murder of a child if it involves the abduction of the child or sexual or sadistic motivation;

(3) A murder done for the purpose of advancing a political, religious, radical or ideological cause; or

(4) A murder by an offender previously convicted of murder.

[92] Subsequent jurisprudence from the United Kingdom concerning the imposition and validity of such “whole life” orders was significantly influenced by the decision of the Grand Chamber of the European Court of Human Rights in Kafkaris v. Cyprus, [2008] ECHR 143. While the European Court in that case held that the imposition of a sentence of life imprisonment on an adult offender is “not in itself prohibited by or incompatible with Article 3” of the Convention, the Court nevertheless noted that “the imposition of an irreducible life sentence on an adult may raise an issue under Article 3.” The European Court held that, in determining whether any particular life sentence is properly viewed as “irreducible,” the court should ascertain whether the offender “can be said to have any prospect of release,” by means of “the possibility of review of a life sentence with a view to its commutation, remission, termination, or the conditional release of the prisoner.” Any such possibility of review will be “sufficient to satisfy Article 3.” A life sentence is not “irreducible” by the mere fact that in practice it may, in fact, be served in full. It is enough for the purposes of Article 3 that “a life sentence is de jure and de facto reducible.” In Kafkaris, since the President of the Republic of Cyprus had the discretionary power, at any point in time, to “suspend, remit or commute any sentence passed by a court” on the recommendation of the Attorney General, the whole life sentence imposed by the court upon the offender was “reducible.” As a result, the sentence was not in violation of Article 3 of the Convention. The Court in Kafkaris noted that while such a whole life sentence, without any minimum term, “necessarily entails anxiety and uncertainty related to prison life,” these are “inherent in the nature of the sentence” and, given the possibility of release, do not warrant the conclusion that the sentence amounts to “inhuman and degrading treatment under Article 3.”

[93] In R. v. Bieber, [2009] 1 W.L.R. 223, [2008] EWCA Crim 1601, the English Court of Appeal (Criminal Division) considered the fitness of the imposition of a whole life sentence order in a murder case, and the potential application of the principles enunciated in Kafkaris. The court ultimately quashed the whole life sentence order, and substituted a definite 37-year term of imprisonment before the accused could be considered for release on “license” or parole. However, before reaching that conclusion, the court rejected, at paras. 39-42, the suggestion that Kafkaris held that there was some maximum term of imprisonment, beyond which the objects of punishment and deterrence cannot justify the continued detention of a rehabilitated offender who no longer poses any threat of criminal conduct. Moreover, the court noted that the “United Kingdom does not rank among” the European “member states” that adhere to such penological ideology. Rather, the court observed, legislation in the United Kingdom “proceeds on the premise that some crimes are so heinous that they justify imprisoning the offender for the rest of his life, however long that may be.” Further, the court held that it did not follow, from the Kafkaris decision, “that an irreducible life sentence, imposed by a judge to reflect the appropriate punishment and deterrence for a very serious offence is in potential conflict with Article 3” of the Convention. Finally, the court noted that, in any event, as the Secretary of State had the power, after consulting with the Parole Board, to release a whole life prisoner on “licence” on “compassionate grounds” in “exceptional circumstances,” that power could properly be exercised, in compliance with the Convention. In other words, the Secretary of State could potentially release an offender, subject to a whole life sentence order, where his or her “continued imprisonment” would amount to “inhuman or degrading treatment.” Therefore, the court in Bieber concluded, whole life sentences should not be viewed as “irreducible” in violation of Article 3 of the Convention.

[94] Shortly after the decision in Bieber, the House of Lords in Wellington v Secretary of State, [2008] UKHL 72, adopted this same approach, expressly approving of the decision in Bieber, in the context of an extradition proceeding. In that case the state of Missouri alleged that the accused committed two first-degree murders in Kansas City, and it sought his extradition from the United Kingdom. The prescribed penalties for such offences were either death or life imprisonment without eligibility for release on probation or parole, except by the act of the Governor. The prosecutor in Missouri provided an undertaking that he would not seek the death penalty. The accused opposed his extradition on the basis that it was incompatible with Article 3 of the Convention, as it rendered him potentially subject to a sentence of life imprisonment without parole. All five of the Law Lords concluded that the imposition of a whole life sentence of imprisonment was not necessarily contrary to Article 3 of the Convention, and that any question as to whether the continued detention of the offender was grossly disproportionate could eventually be determined when the issue arose.

[95] In his judgment in Wellington, at paras. 17-19, Lord Hoffman expressly cited the “correct” conclusions reached by the Court of Appeal in Bieber. These conclusions included the following: (1) an “irreducible life sentence, if imposed to reflect the requirements of punishment and deterrence for a particularly heinous crime, was not in potential conflict with article 3” of the Convention; (2) in any event, the “existence of the Home Secretary’s power of release,” even though used sparingly, meant that a whole life sentence was not irreducible according to the Kafkaris decision; and (3) that any potential complaint under Article 3 of the Convention “should be made (if at all) when the prisoner contended that … his further detention would be inhuman or degrading treatment.”

[96] Lord Scott addressed the argument, in Wellington at para. 46, that an irreducible life sentence is inhuman and degrading because it denies the offender the possibility of atonement and redemption. Lord Scott observed that this argument seemed to “miss the point” once it was accepted that a full life tariff may be a “just punishment, merited by the heinous quality of the crime.” In short, if a “whole life sentence of imprisonment without parole is a just punishment for the crime, the prisoner atones by serving his sentence.” The fact that the offender will probably serve the full life term that is merited by his or crimes cannot justify describing the sentence as grossly disproportionate.

[97] In Wellington, Baroness Hale addressed the argument, at para. 53, that “each human being should be regarded as capable of redemption” and that the denial of this possibility of redemption “by repentance and reform may seem inhuman.” She noted that this was “not the only tenable view of the matter” and that there “are many people, in and outside prison, who would draw a very sharp distinction between life and death, however restricted that life might be.” Further, Baroness Hale observed that there were “many justifications for subjecting a wrongdoer to a life in prison” and that it was not for the court “to impose a particular philosophy of punishment upon other countries.”

[98] The House of Lords in Wellington also concluded that, in any event, the potential whole life term of imprisonment was “reducible” within the meaning of Kafkaris, as the Governor of Missouri had powers of executive clemency and commutation. The fact that such power was “rarely” exercised and the chances of eventual release were “highly remote” was not sufficient to establish that the sentence was “irreducible.” In this regard, Lord Carswell observed, at para. 61, that “it may well be that in a changing climate of opinion,” this executive power of release “may be exercised with greater frequency in the future,” given that it would “ordinarily be a very long time” in this type of case before the question of possible release on parole might arise, “by which time the practice may have undergone a change.”

[99] Subsequently, in R. v. Oakes and Others, [2012] EWCA Crim 2435, [2013] 2 Cr. App. R. (S.) 34, a special constitution of the English Court of Appeal (Criminal Division) considered the validity of sentences which were imposed, on different offenders on different occasions, following the commission of some “very grave crimes.” Three of the accused were convicted of murder and given the mandatory sentence of life imprisonment. Two of these accused murderers were, as part of discretionary orders made by the sentencing court, given “whole life terms” of imprisonment, without possibility for release on parole. These appellants argued that such sentences violated Article 3 of the Convention.

[100] The court in Oakes noted that while “every civilized country” simultaneously embraces the principle that “just punishment is appropriate for those convicted of criminal offences,” the issues relating to “just and proportionate punishment” are the subject of “rational debate and civilized disagreement,” and the assessment of what amounts to “just punishment” or “inhuman or degrading punishment” in any particular circumstance “can legitimately produce different answers in different countries,” and even “different answers at different times in the same country.” The court also observed that the question of whether a “whole life” sentence of imprisonment violates Article 3 of the Convention has been “well debated.”

[101] After reviewing the conflicting perspectives on this issue, as outlined in the jurisprudence, the Court of Appeal in Oakes concluded, at paras. 22, 29-30, that provided the sentencing court has “reflected on matters of mitigation” properly available to the accused, a “whole life order” imposed as a matter of judicial discretion as to the appropriate level of “punishment and deterrence” for a crime of the “utmost seriousness” would not amount to a breach of Article 3 of the Convention. As the court concluded, in short, it is “open to the individual state to make statutory provision for the imposition of a whole life minimum term” of imprisonment, and “in an appropriate case, as a matter of judicial discretion, for the court to make such an order.” While describing the imposition of a “whole life” term of imprisonment as a “Draconian penalty” of “last resort,” to be “reserved for cases of exceptionally serious criminality,” the court concluded that, in those rare cases where it was appropriately ordered, the order does not contravene Article 3 of the Convention.

[102] In Vinter and Others v. United Kingdom, ECHR 2013, three offenders, from England and Wales, after being tried separately and convicted of murder, were each sentenced to life imprisonment and given “whole life orders.” All three offenders maintained that these whole life orders were incompatible with Article 3 of the Convention. After reviewing the relevant jurisprudence, and the laws of many different countries around the globe, the Grand Chamber affirmed, at paras. 105-106, that issues relating to “just and proportionate punishment” are the subject of “rational debate and civilized disagreement” and that contracting states “must be allowed a margin of appreciation in deciding the appropriate length of prison sentences for particular crimes.” Accordingly, contracting states must “remain free to impose life sentences on adult offenders for especially serious crimes such as murder” and the imposition of such a sentence on an adult offender “is not in itself prohibited by or incompatible with Article 3” of the Convention. The court observed that this is particularly so when such a sentence is “not mandatory,” but rather is imposed by an “independent judge” after considering “all of the mitigating and aggravating factors” present in any given case.

[103] The court in Vinter maintained, however, at paras. 107-110, that to be compatible with Article 3 of the Convention, the imposition of a life sentence on an adult must be “reducible,” in that there must be some “prospect of release” sometime in the future by means of “some possibility of review” and potential “commutation, remission, [or] termination” of the sentence, or “conditional release”.[^6] The court explained, at paras. 111-114, that it is axiomatic that a prisoner cannot be detained unless there are “legitimate penological grounds for that detention,” and such penological justifications may shift over time and will need to be subsequently evaluated. Further, without any subsequent review, the risk is that the offender “can never atone” for his or her offence. Regardless of how exceptional the offender’s progress toward rehabilitation may be, his or her punishment remains fixed and unreviewable. To deprive an offender of even the hope of someday regaining his or her freedom would be an affront to human dignity. The court concluded that there was “clear support in European and international law” for the principle that “all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved.” After reviewing those laws, the court concluded as follows, at paras. 119-121:

For the foregoing reasons, the Court considers that, in the context of a life sentence, Article 3 must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds.

However, the Court would emphasize that, having regard to the margin of appreciation which must be accorded to Contracting States in the matters of criminal justice and sentencing … it is not its task to prescribe the form (executive or judicial) which that review should take. For the same reason, it is not for the Court to determine when that review should take place. This being said, the Court would also observe that the comparative and international law materials before it show clear support for the institution of a dedicated mechanism guaranteeing a review no later than twenty-five years after the imposition of a life sentence, with further periodic reviews thereafter …[^7]

It follows from this conclusion that, where domestic law does not provide for the possibility of such a review, a whole life sentence will not measure up to the standards of Article 3 of the Convention.

[104] The court in Vinter also held, at para. 122, that an offender subject to a whole life order should not have to serve an “indeterminate number of years of his sentence” before being able to challenge the legality of his or her sentence. Further, in cases where the sentence is “irreducible under domestic law” when it was imposed, it would be “capricious” to expect the offender to make efforts toward rehabilitation without knowing whether, at some future, unspecified date, a mechanism might be introduced that might permit his or her release. Accordingly, where domestic law does not provide any possibility for review of a “whole life sentence,” the incompatibility with Article 3 of the Convention arises at the time the sentence is imposed, not at some later stage of incarceration.

[105] In applying these principles in the circumstances of the Vinter case, the court examined the “published policies” that described how the Secretary of State might exercise the discretionary power, provided in s. 30 of the Crime (Sentences) Act 1997, to release a life offender on licence, upon being “satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds,” after consulting with the Parole Board (where not impracticable).

[106] The governing “Prison Service Order” outlined in the “Lifer Manual” provided that the criteria for such release were as follows: (1) the prisoner was suffering from a terminal illness and death was likely to occur very shortly, or was bedridden or similarly incapacitated; (2) the risk of re-offending was minimal; (3) further imprisonment would reduce the prisoner’s life expectancy; (4) there were adequate arrangements for the prisoner’s care and treatment outside prison; and (5) early release would bring some significant benefit to the prisoner or his or her family. The court ultimately concluded, at paras. 125-131, that while it was possible to interpret s. 30(1) of the Crime (Sentences) Act 1997 in a manner consistent with Article 3 of the Convention, as the courts concluded in Bieber and Oakes, there was a “lack of clarity” surrounding the law as to the prospect of release for life prisoners. Moreover, the Vinter court concluded, the “highly restrictive conditions” that were “exhaustively listed” in the “Prison Service Order” concerning the exercise of the powers of “compassionate release,” did not provide the necessary “prospect of release” to permit the whole life sentences to be properly characterized as “reducible” as required by Article 3 of the Convention. Accordingly, the court found there to be a violation of Article 3.

[107] Subsequently, in R. v. McLoughlin; R. v. Newell, [2014] EWCA 188, [2014] 1 W.L.R. 3964, a special composition of the Court of Appeal (Criminal Division) heard a number of cases, combined with a reference by the Attorney General. These cases and the reference collectively offered a challenge to the statutory scheme providing for the imposition of “whole life” orders on offenders sentenced to life imprisonment, based upon the Article 3 of the Convention and decision of the European Court of Human Rights in Vinter. The court ultimately concluded, following its earlier decisions in Bieber and Oakes, that the imposition of a “whole life” was not incompatible with article 3 of the Convention, as the Secretary of State had power, under s. 30 of the Crime (Sentences) Act 1997, to review such an order where there were exceptional circumstances that would justify release on compassionate grounds.

[108] Lord Thomas concluded, at paras. 15-18, that “there may be debate in a democratic society” as to whether judges “should have the power to make a whole life order.” However, as reflected in the Criminal Justice Act 2003, it was evident that there are “some crimes that are so heinous” that Parliament was entitled to proscribe, compatibly with Article 3 of the Convention, that “the requirements of just punishment encompass passing a sentence which includes a whole life order.” Further, Lord Thomas noted that the decision in Vinter did not in any way cast doubt on that principle. Accordingly, Vinter did not “in any way seek to impugn the provisions of the Criminal Justice Act 2003, which permitted a judge to make a whole life sentencing order as a sentence “reflecting just punishment.”

[109] In considering whether the statutory regime outlined in s. 30 of the Crime (Sentences) Act 1997, provided the “reducibility” of a whole life sentence order found necessary by the decision in Vinter, Lord Thomas contrasted the conclusions on this subject reached by the Court of Appeal (Criminal Division) in Bieber (and affirmed in Oakes) with the decision of the European Court of Human Rights in Vinter, and concluded, at paras. 26-29, that the decision in Bieber was correct. Indeed, Lord Thomas expressly disagreed with the conclusion reached in Vinter in this regard. Lord Thomas confirmed that the law of England and Wales was “clear” as to the “possible exceptional release of whole life prisoners,” noting that the Secretary of State was bound to exercise this power in a manner compatible with Article 3 of the Convention. Lord Thomas explained, at para. 30, that while the Grand Chamber in Vinter might have thought that the policy outlined in the “Lifer Manual” might have been of “real consequence,” in fact the policy was, as a matter of law, of “no consequence.” Lord Thomas then seized the opportunity to clarify the law of England and Wales in this regard. More specifically, at paras. 31-36, Lord Thomas stated, essentially, as follows:

• First, the power of review arises if there are exceptional circumstances. The offender subject to the whole life order is therefore required to demonstrate to the Secretary of State that, while the whole life order was just punishment at the time it was made, exceptional circumstances have since arisen. It is not necessary to specify what such circumstances are, or specify criteria. The term “exceptional circumstances” is of itself sufficiently certain.
• Second, the Secretary of State must then consider whether such exceptional circumstances justify the release on compassionate grounds. The highly restrictive policy in the “Lifer Manual” cannot restrict the duty of the Secretary of State, or fetter his or her discretion, to consider all of the exceptional circumstances relevant to the release of the prisoner on compassionate grounds.
• Third, the term “compassionate grounds” must be read, as noted in Bieber, in a manner compatible with Article 3 of the Convention, in that they are not restricted to what is provided in the “Lifer Manual.” Rather “compassionate grounds” is a term with a “wide meaning” that can be “elucidated, as is the way the common law develops, on a case by case basis.”
• Fourth, the decision of the Secretary of State “must be reasoned by reference to the circumstances of each case and is subject to scrutiny by way of judicial review.”

[110] In conclusion, Lord Thomas stated, at paras. 35-37, that the law provided an offender subject to a whole life sentencing order, with “hope” or the “possibility” of release, in exceptional circumstances, which renders the “just punishment originally imposed no longer justifiable.” Lord Thomas also noted that it was “entirely consistent with the rule of law” that such requests were to be considered on an “individual basis,” even though it was difficult to specify in advance what such exceptional circumstances might justify eventual release. Lord Thomas stated that judges should, accordingly, continue to apply the provisions of the Criminal Justice Act 2003 and, in exceptional cases, which are likely to be rare, impose whole life sentencing orders on appropriate offenders.

[111] These issues were again re-visited in Hutchinson v. United Kingdom, ECHR 2017. The accused was convicted of three counts of murder, and the offences of rape and aggravated burglary. He was sentenced to life imprisonment and given a “whole life” term. The accused contended that this sentence was in breach of Article 3 of the Convention. The Grand Chamber of the European Court of Human Rights rejected this argument. After extensively quoting lengthy passages from the Court of Appeal judgment in McLoughlin, and outlining the positions of the parties, the court in Hutchinson concluded, at paras. 38-40, that the McLoughlin decision responded explicitly to the Vinter critique, “affirmed the duty of the Secretary of State to exercise the power to release compatibly with Article 3 of the Convention,” and “brought clarity as to the content of the relevant domestic law, resolving the discrepancy identified in the Vinter judgment.”

[112] In again outlining the established general legal principles regarding the imposition of life sentences, the court in Hutchinson, at paras. 42-45, noted that the Convention “does not prohibit the imposition of a life sentence on those convicted of especially serious crimes, such as murder.” However, in order to be compatible with Article 3, such a sentence “must be reducible de jure and de facto, meaning that there must be both a prospect of release for the prisoner and a possibility of review.” The court noted that the basis of such review “must extend to assessing whether there are legitimate penological grounds,” including “punishment, deterrence, public protection and rehabilitation,” justifying the continuing incarceration of the offender. Such a review must take into account the progress the prisoner has made towards rehabilitation, “assessing whether such progress has been so significant that continued detention can no longer be justified on legitimate penological grounds.” The court also noted that whole life prisoners are “entitled to know, among other things, “when a review of sentence will take place or may be sought.” The court recognized that there is “clear support in the relevant comparative and international materials” for such a review no later than 25 years after the imposition of sentence, and periodic reviews thereafter. But, the court confirmed, as it did in Vinter, that this is an issue within the “margin of appreciation” that must be accorded to contracting states in the matters of criminal justice and sentencing, and cannot simply be imposed upon them. The court also affirmed that it is for each state to determine whether the necessary review process should be “conducted by the executive or the judiciary.”

[113] Applying these general principles to the circumstances of the Hutchinson case, at paras. 46-73, the court ultimately concluded that the imposition of whole life sentencing orders in the United Kingdom was not in violation of Article 3 of the Convention, as such sentences are potentially “reducible.” As the court observed, the United Kingdom was entitled to entrust the review to a member of the executive, a government minister, the Secretary of State. The review did not have to be conducted by the judiciary. Further, the scope of the review was not the highly restrictive one contemplated in the “Lifer Manual,” but permitted the Secretary of State to consider any exceptional progress by an offender toward rehabilitation. Finally, the United Kingdom was not required to provide for a review after some defined time period, such as 25 years, as the system in place, permitting an offender to apply at any time after the imposition of sentence may actually be “in the interest of prisoners, since they are not required to wait for a set number of years” before applying for their review.

d. The Royal Prerogative of Mercy in Canada

[114] Given the importance placed upon executive clemency in the jurisprudence outlined above, before turning to review the legislative provisions in Australia and New Zealand, this is an opportune juncture to consider the operation of the royal prerogative of mercy in Canada.

[115] Defense counsel argues that, in Canada, the royal prerogative of mercy simply does not provide an offender convicted of multiple murders and sentenced to consecutive terms of parole ineligibility with the necessary measure of hope of review and eventual release. According to defence counsel, it is granted too infrequently, is shrouded in secrecy, and is subject to the political whims of the exercise of executive power. I disagree. Even if the provisions of the Charter required that offenders, serving long terms of imprisonment, must be able to maintain such hope of review and eventual release, in recognition of the constitutionally-recognized importance of individual human dignity, I am satisfied that the royal prerogative of mercy provides that element of hope.

[116] According to s. 748 of the Criminal Code, “Her Majesty may extend the royal mercy to a person who is sentenced to imprisonment under the authority of an Act of Parliament” even if that imprisonment is for “failure to pay money to another person.” Further, s. 749 of the Code states that “Nothing” in the Criminal Code “in any manner limits or affects Her Majesty’s royal prerogative of mercy.” The royal prerogative of mercy is the ancient power of unfettered discretion, vested in the British Monarch, to exercise mercy on any subject.

[117] Historically, one strand of the royal prerogative of mercy has always existed to extend “compassion to individuals by refusing to exact the full weight of punishment imposed by the courts.” For example, the royal prerogative of mercy was used to “spare many individuals from capital punishment.” See generally, G.T. Trotter, “Justice, Politics and the Royal Prerogative of Mercy: Examining the Self-Defence Review” (2001), 26 Queen’s L.J. 339, at pp. 347, 350-352, 358; Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621, at para. 28.

[118] In Canada, clemency is granted in exceptional circumstances, in deserving cases, involving federal offences, where no other remedy exists in law to reduce severe negative effects of criminal sanctions. It can be requested for numerous reasons, including employment, perceived inequity, medical conditions, immigration to Canada, compassion and financial hardship. The prerogative is exercised by the Governor General or the Governor in Council, upon the recommendation of a Minister of the Crown, in most cases the Minister of Public Safety and Emergency Preparedness.

[119] According to s. 110 of the Corrections and Conditional Release Act, S.C. 1992, chap. 20, the Parole Board of Canada shall, when so directed by the Minister, “make or cause to be made any investigation or inquiry desired by the Minister in connection with any request made to the Minister for the exercise of the royal prerogative of mercy.” According to the published policies of the national parole board,[^8] the following principles are applied in assisting the Minister with his or her duties in relation to the exercise of the royal prerogative of mercy:

• The royal prerogative of mercy may be sought for a “remission” of a sentence, the “erasing of all, or part of, a sentence imposed by the court.”
• As the independence of the judiciary must be respected, a remission of sentence may be considered only where there exists evidence of “an error in law,” a “substantial inequity” or an “undue hardship” that would be “out of proportion to the nature and seriousness of the offence and more severe than for other individuals in similar situations.”
• The role of the Parole Board of Canada in clemency cases is to review applications, conduct investigations (at the direction of the Minister) and to make recommendations to the Minister regarding whether to grant the clemency request.
• The Parole Board of Canada provides a “fair and equitable process” designed to ensure that the royal prerogative of mercy is “granted only in very exceptional and truly deserving cases.” The royal prerogative of mercy is intended only for “rare cases” in which considerations of “justice, humanity and compassion override the normal administration of justice.”
• The process of the royal prerogative of mercy should be applied only where there exist no other remedies, where remedies are not lawfully available, or where recourse to them would result in greater hardship.

[120] As I have already indicated, assuming – without deciding – that an offender who is convicted of multiple murder offences and is subject to an order of consecutive periods of parole ineligibility under s. 745.51 of the Code, must be able to retain, as a matter of constitutional law under ss. 12 and/or s. 7 of the Charter, some hope of potential eventual release from custody, I conclude that the royal prerogative of mercy provides that element of hope (quite apart from the hope that might well exist from the fixed and definite nature of the total parole ineligibility period imposed).

[121] The Supreme Court of Canada has periodically referred to the royal prerogative of mercy as the procedural mechanism that might potentially provide executive relief for complaints by offenders about long (but constitutionally valid) sentences of imprisonment in murder cases. See R. v. Luxton, at p. 725; R. v. Sarson, 1996 CanLII 200 (SCC), [1996] 2 S.C.R. 223, at para. 51; R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3, at paras. 89-90. Paraphrasing collectively the comments of the court in Sarson and Latimer, in cases that the executive sees as “unjust imprisonment,” the executive is permitted to dispense “mercy” and may “order the release of the offender;” and in the exercise of this prerogative, the executive will “undoubtedly, if it chooses to consider the matter, examine all of the underlying circumstances” of the case.

[122] Relying upon a host of Performance Monitoring Reports prepared by a Division of the National Parole Board since 1998-1999, but including the results of earlier years, defence counsel accurately observed that, statistically speaking, the royal prerogative of mercy has been dispensed infrequently. The very helpful chart prepared by defence counsel accurately summarized all of the available statistics, and provides an insightful snapshot of the outcomes of clemency applications over the past few decades. It is attached as an Appendix to these reasons.

[123] These statistics, covering a significant expanse of time, reveal that, of all of the many applications that have been made for the royal prerogative of mercy, approximately 20% have been granted, approximately 12% have been denied, and the great majority of such applications have simply been discontinued for one reason or another, with no decision ultimately having been rendered. Moreover, it seems that these statistics have remained relatively consistent since the 1990s, although both percentages were somewhat higher in the 1970’s and 1980’s. In the Performance Monitoring Report (1998-1999), the Performance Measurement Division of the National Parole Board summarized the statistics concerning the practical operation of the “Clemency Program” up until that time as follows, at p. 93:

The Royal Prerogative of Mercy has been granted in about 19% of cases over the past five years, and denied about 11% of the time. This compares with a grant rate of 30% since 1970 and a deny rate of 18%. The majority of requests are discontinued because of lack of information with no decision having been taken.

[124] It may be fair to observe, as defence counsel contends, that the royal prerogative of mercy has been always been granted infrequently, statistically speaking, and that over the past couple of decades, it has come to be granted somewhat less frequently than in earlier times. However, this should come as no surprise. The royal prerogative of mercy is clearly a remedy that is only ever granted in “exceptional circumstances,” in truly deserving cases, and it is a decision ultimately made by the executive (not the National Parole Board).

[125] The exceptional nature of the remedy, and the statistical infrequency of its use, does not, however, unduly restrict the availability of the remedy, or provide an unworkably vague standard or threshold, or deprive a long-imprisoned offender of hope of eventual review and release. After all, approximately 20% of all applications for the royal prerogative of mercy over the past few decades – one in every five applications on average – are granted, and significantly more applications are granted than are denied. Those statistics prove that, in practical terms, the royal prerogative of mercy serves as a real-life remedy for a significant number of imprisoned offenders, and provides a realistic basis for optimistic hope among offenders serving long terms of imprisonment, such as those who commit multiple murders, of potential eventual review and release.

[126] Moreover, no aspect of the published policies of the Parole Board of Canada restricts the duty, or fetters the overriding discretion, of the Governor General or the Governor in Council to consider all of the exceptional circumstances that might be relevant to the potential release of an imprisoned offender for reasons of “justice, humanity and compassion.” These are terms with broad meanings that provide a potentially broad basis for the granting of the royal prerogative of mercy in appropriate cases. See R. v. McLoughlin, at paras. 31-37. In the exercise of the royal prerogative of mercy, the Governor General or the Governor in Council, acting on the advice of the Minister of Public Safety and Emergency Preparedness, as informed by the inquiries of the Parole Board of Canada, would have to consider such matters as, for example, any exceptional efforts at rehabilitation and atonement on the part of an offender, in assessing whether the continued detention of the offender can still be justified on legitimate penological grounds.

[127] Ministerial decisions concerning applications for the royal prerogative of mercy are also subject to judicial review. See, for example, Robillard v. Canada (Attorney General), 2016 FC 495, [2016] F.C.J. No. 531.

[128] The fact that the royal prerogative of mercy has not, to-date, yet been exercised in Canada so as to provide executive relief against consecutive parole ineligibility periods imposed as part of sentences of life imprisonment in multiple murder cases, does not undermine the realistic and practical availability of such relief, and should not dim the hopes of such offenders in the future. Until December 2, 2011, when Bill C-48 came into force, parole ineligibility periods in association with life sentences of imprisonment for offenders in multiple murder cases could only have been made concurrent. Accordingly, until that time, such an offender could have been made to wait no longer than 25 years before becoming eligible for release on parole. There was little practical role to be played by applications for the royal prerogative of mercy in such cases. Further, as any offender convicted of multiple murders and sentenced to consecutive parole ineligibility periods under s. 745.51 of the Code could only have served, since December 2, 2011, a few years of their total sentence of imprisonment, it is not likely that there has yet been an application for the royal prerogative of mercy under this new sentencing regime.

[129] This is not to say that the system in place for consideration of the royal prerogative of mercy is the best or only system for determining whether or not offenders, such as those convicted of multiple murders serving long sentences of imprisonment, should have their sentences reduced to permit their conditional release. There are critiques that might reasonably be made about the operation of the current system, and improvements might realistically be proposed. But, in my view, there is no gainsaying the reality that the current system governing applications for the royal prerogative of mercy provides offenders, serving long terms of imprisonment, with real hope of potential review and release (again, quite apart from the hope from the definite, fixed nature of the total parole ineligibility period imposed).

[130] Accordingly, just as the courts in Kafkaris, Bieber, Oakes, McLoughlin, Wellington and Hutchinson concluded that the executive power of clemency provided realistic hope to offenders serving whole life sentences of imprisonment in the United Kingdom (and elsewhere), in compliance with Article 3 of the Convention, so too do I conclude that the executive power of the royal prerogative of mercy provides realistic hope to offenders in Canada, including those convicted of multiple murders and serving similarly lengthy fixed periods of consecutive parole ineligibility. Indeed, the operation of the royal prerogative of mercy in Canada is, in principle, indistinguishable from the operation of the executive clemency powers approved in those six decisions as sufficiently providing that necessary degree of hope of eventual release to “whole life” prisoners. Accordingly, even had I accepted defence counsel’s submission that this realistic hope is constitutionally required, I would have concluded that the royal prerogative of mercy satisfies this requirement, and as such, the impugned legislation complies with s. 12 of the Charter.

e. The Australian States and Territories

[131] The United Kingdom is not the only country, apart from the United States of America, that provides for the imposition of sentences of life imprisonment without parole. In all of the state and territorial jurisdictions in Australia, offenders convicted of murder may be sentenced to life imprisonment. In some jurisdictions such a sentence is described as mandatory. In the great majority of these jurisdictions such a sentence may, at least in some circumstances, be for the entire “natural life” of the offender, without any specific parole ineligibility period, during which the offender’s only hope of release is through the operation of the royal prerogative of mercy. More particularly, as detailed by Professor J.L. Anderson in “The Label of Life Imprisonment in Australia: A Principled or Populist Approach to an Ultimate Sentence” (2012), 35 U.N.S.W.L.J. 747, at pp. 751-753, 759-764, the legal position in the Australian states and territories is, essentially, as follows:

• New South Wales: In New South Wales, life imprisonment is the maximum punishment for all murders. In most cases, the court may nevertheless impose a sentence of imprisonment for a specified term. However, life imprisonment is a mandatory sentence in two types of cases: (1) in cases involving the murder of a police officer; and (2) in cases where the level of culpability in the commission of the murder is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. Whenever a life sentence is imposed, the offender must “serve that sentence for the term of the person’s natural life.” There is no discretion to fix a “no parole period.” Offenders serving such “natural-life” terms of imprisonment, accordingly, have no prospect of release on parole. However, the royal prerogative of mercy is preserved and can still be exercised. See Crimes Act 1900, ss. 19A, 19B; Crimes (Sentencing Procedure) Act 1999, ss. 61(1), 102.
• Victoria: In Victoria, where an offender is convicted of murder, the offender is liable to be sentenced to life imprisonment or some lesser fixed term of imprisonment. The statutory “baseline” sentence in murder cases is 25 years imprisonment. If the offender is sentenced to life imprisonment, the sentence is for the “term of his or her natural life.” When an offender is sentenced for murder, the court must also fix a period during which the offender is not eligible to be released on parole, “unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate.” In cases where the offender has been sentenced to a “natural life” sentence of imprisonment, and no period of parole eligibility has been fixed, release can only potentially be obtained through the executive exercise of the royal prerogative of mercy. See Crimes Act 1958, s. 3(a); Sentencing Act 1991, ss. 11(1), 106-109.
• Queensland: In Queensland, offenders guilty of murder must be sentenced to either life imprisonment or an indefinite sentence. In cases where the offender is being sentenced for more than one conviction for murder, or the offender has a prior conviction for murder, the court must order that the offender not be released until he or she has served a minimum of 30 or more specified years of imprisonment. In cases where the offender killed a police officer, the court must order that the offender serve a minimum of 25 or more specified years of imprisonment, before being released. In the absence of such orders, an offender may be released on parole after 15 years imprisonment, or the court imposed minimum parole eligibility period. See Criminal Code Act 1899, s. 305; Penalties and Sentences Act 1992, part 10; Corrective Services Act 2006, ss. 176, 181, 346.
• South Australia: In South Australia, life imprisonment is the mandatory punishment for all murders. Such sentences are for the “natural life” of the offender. The sentencing court is generally obliged to fix a minimum parole ineligibility period of at least 20 years, but may decline to fix any period of parole ineligibility if it would be “inappropriate to fix such a period” because of (1) the gravity of the offence or the circumstances surrounding the offence; (2) the criminal record of the offender; or (3) the behaviour of the offender on any previous period of parole or conditional release. See Criminal Law Consolidation Act 1935, s. 11; Criminal Law (Sentencing) Act 1988, ss. 32, 32A.
• Western Australia: In Western Australia, persons convicted of murder must be sentenced to life imprisonment unless such a sentence is “clearly unjust” given the circumstances of the offence, and the offender is unlikely to be a threat to community safety when released, in which case a maximum sentence of 20 years imprisonment is applicable. A court sentencing an offender to life imprisonment for murder must either (1) set a minimum period of at least 10 years imprisonment before becoming eligible for release on parole; or (2) order that “the offender must never be released.” The court must order that the offender never be released if such an order is necessary “in order to meet the community’s interest in punishment and deterrence.” However, even in cases where such an order is made, the royal prerogative of mercy is preserved, and may eventually lead to the release of the offender. See Criminal Code Act 1913, s. 279(4); Sentencing Act 1995, ss. 90, 96, 137, 142.
• Tasmania: In Tasmania, when convicted of murder, the offender is liable to be sentenced to “imprisonment for the term of the person’s natural life or for such other term as the Court determines.” Where the court sentences the offender to imprisonment for “the term of the offender’s natural life,” the court must order either: (1) that the offender is “not eligible for parole” in respect of that sentence; or (2) that the offender is ineligible for parole for a specified period. Where a “natural life” sentence without parole is imposed, the offender is not eligible for release except through the royal prerogative of mercy. See Criminal Code Act 1924, s. 158; Sentencing Act 1997, s. 18; Corrections Act 1997, ss. 72, 89, 97.
• Northern Territory: In the Northern Territory, an offender convicted of murder is subject to the mandatory sentence of life imprisonment. The sentencing court is also obliged to order that the accused be ineligible for release on parole for 20 (or in some cases 25) years. However, the sentencing court may “refuse to fix a non-parole period” if the court is satisfied that “the level of culpability in the commission of the offence is so extreme the community interest in retribution, punishment, protection and deterrence can only be met if the offender is imprisoned for the term of his or her natural life without the possibility of release on parole.” In such circumstances, the offender can only be potentially released by the exercise of the royal prerogative of mercy. See Criminal Code 1983, ss. 157; Sentencing Act 1995, s. 53A, 115(1).
• Australian Capital Territory: In the Australian Capital Territory, an accused convicted of murder is punishable “by imprisonment for life.” The sentencing court may fix a period of time during which the offender is not eligible for parole. However, the sentencing court “may decline to set a non-parole period” if the court considers that it would be inappropriate having regard to “the nature of the offence or offences and the offender’s antecedents.” An offender serving a life sentence may apply to the Sentence Administration Board seeking release “on licence” after having served at least 10 years imprisonment. While the Board makes recommendations, it is up to the Executive to determine if the offender should be released “on licence.” The Executive also has the statutory power to “remit partly or completely” any “sentence of imprisonment.” The royal prerogative of mercy is also preserved. See Crimes Act 1900, s. 12; Crimes (Sentencing) Act 2005, s. 65(5); Crimes (Sentence Administration) Act 2005, ss. 288-298, 314A.

[132] In summary, a sentence of imprisonment for the “natural life” of the offender, without any eligibility for release on parole, is available as a sentencing option for an offender convicted of a single murder in nearly all of the states and territories of Australia. This legislative landscape, in a commonwealth country with a democracy similar to ours in Canada, provides significant support for the notion that the imposition of consecutive fixed periods of parole ineligibility in cases of adult offenders guilty of multiple murders is not “grossly disproportionate,” even where such sentencing orders effectively result in a “natural life” sentence of imprisonment. If “natural life” sentences of imprisonment, without parole, are considered proportionate in some single murder cases, it is difficult to understand how such sentences could be “grossly disproportionate” and, thus, “cruel and unusual punishment” in violation of s. 12 of the Charter, in cases of multiple murders.

f. New Zealand

[133] A sentence of life imprisonment without parole is also a sentencing option in New Zealand. Since 2010, adult offenders guilty of murder in New Zealand are liable to be sentenced to life imprisonment. In some circumstances, life imprisonment is just a presumptive sentence, but the sentencing court is also permitted to impose a sentence of imprisonment for a fixed number of years. In other circumstances, the sentence of life imprisonment for murder is mandatory.

[134] Further, in cases where the sentence of life imprisonment is imposed, the sentencing court may (1) order the offender to serve a minimum number of years before being eligible for release on parole; or (2) order that the accused serve the imposed life sentence of imprisonment “without parole.” In considering whether or not to make the order that the offender serve the imposed sentence of life imprisonment “without parole,” the sentencing court must consider whether such an order is necessary to satisfy the following sentencing purposes: (1) holding the offender accountable for the harm done to the victim and the community; (2) denouncing the conduct in which the offender was involved; (3) deterring the offender or other persons from committing the same or similar offences; and (4) protecting the community from the offender. See Sentencing Act, 2002, ss. 86E, 102-103.

[135] The legislative availability of the punishment of life imprisonment, without parole, in New Zealand also supports the conclusion that s. 745.51 of the Code does not permit the imposition of a sentence that is grossly disproportionate in multiple murder cases.

g. Other Jurisdictions – The Division of Opinion World-Wide

[136] There is considerable debate around the world concerning the general penological wisdom of the imposition of sentences of life imprisonment without parole, even in cases of murder. On one hand, there are many countries in which such a sentence is not available, either by reason of its absence in the governing sentencing legislation, or by virtue of judicial constitutional decree. On the other hand, in addition to the United States of America, the United Kingdom, Australia and New Zealand, there are many other countries that still employ life-long terms of imprisonment, without parole, as an available sentencing option, for adults, at least in cases of murder. The specific countries that align themselves on each side of this important debate are collected in some of the academic literature on the subject. See, for example, Center for Law and Global Justice (University of San Francisco), Cruel and Unusual – U.S. Sentencing Practices in a Global Context (2012), at pp. 21-31, 74-90.

7. The Appropriate Deference to Parliament

[137] In these circumstances, it is important to recall the deference that is appropriately due to Parliament in relation to these types of issues. As Lamer J., as he then was, confirmed in R. v. Smith, at 1069-1070, it is not for the court to question the general “wisdom of Parliament” with respect to the “gravity of various offences” and the “range of penalties” which may be imposed upon offenders, as Parliament has a “broad discretion in proscribing conduct as criminal and in determining proper punishment.” Accordingly, while the “final judgment” as to whether any particular punishment exceeds the “constitutional limits” set by the Charter is properly a “judicial function,” the reviewing court “should be reluctant to interfere with the considered views of Parliament.” Indeed, the reviewing court should interfere “only in the clearest of cases” where the punishment legislatively prescribed is “so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency.” In Smith, Lamer J. maintained that there was no reason to depart from that “tradition of deference to Parliament that has always been demonstrated by the Canadian courts.” See also R. v. Guiller (1985) 1985 CanLII 5996 (ON SC), 48 C.R. (3d) 226 (Ont.Dist.Ct.), at p. 238; R. v. Lloyd, at paras. 45-46.

[138] Accordingly, as Cory J. affirmed in Steele v. Mountain Institution, 1990 CanLII 50 (SCC), [1990] 2 S.C.R. 1385, at p. 1417, it will “only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions of s. 12 of the Charter,” as the governing legal standard is “very properly stringent and demanding.”

[139] Applying the applicable standard of deference, in my view it was open to Parliament to enact s. 745.51 of the Criminal Code, permitting sentencing courts (but not requiring them) to order consecutive periods of parole ineligibility for offenders convicted of multiple murder offences, even in circumstances where the combined total parole ineligibility period is likely to last for the entire natural life of the multiple murder offender. It simply cannot reasonably be said that such a sentence is “grossly disproportionate” to the circumstances of the offences and the offender.

8. Conclusion

[140] As I have indicated, I find that s. 745.51 of the Criminal Code does not permit the imposition of a “grossly disproportionate” sentence. Rather, it permits the imposition of sentences that are proportionate, in that the impugned provision allows judges to effectively impose longer sentences of imprisonment on offenders who have murdered more than one victim. Prior to the enactment of s. 745.51, such a proportionate sentence was not legally available as concurrent periods of parole ineligibility were required, regardless of how many victims may have been murdered by the offender. As Parliament reasonably concluded by the enactment of s. 745.51, it was this earlier statutory situation that required the imposition of disproportionate sentences – sentences that were always concurrent regardless of the number of murders committed.

[141] At a time when our society is periodically witness to horrific incidents of murderous rampage, in which many innocent victims are killed in our own country and elsewhere around the world, it is difficult to judicially quarrel with Parliament’s policy decision to enable sentencing courts to potentially impose longer total terms of parole ineligibility upon such offenders. Such offences cause greater harm, with greater moral culpability, than cases involving but a single murder, and therefore are often deserving of greater punishment. Indeed, such an approach is entirely consistent with generally applicable sentencing principles. As Stromberg-Stein J.A. noted in R. v. Al-Isawi, 2017 BCCA 163, 348 C.C.C. (3d) 524, at para. 69, it does not follow that “just because someone can commit a crime some number of times and may be punished many times for those separate criminal transactions” that a “long mandatory sentence” that results from committing a number of offences “would therefore be grossly disproportionate.” As Stromberg-Stein J.A. sensibly explained, “[a]s the number of offences increases, so too does the offender's moral culpability and the gravity of the criminal conduct giving rise to the sentence.”

[142] Legislatively permitting the imposition of sentences of life imprisonment with consecutive periods of parole ineligibility in cases of multiple murders does not result in the imposition of sentences which demean or violate human dignity in violation of s. 12 of the Charter. Other countries in the world with constitutional democracies similar to ours in Canada, including the United States of America, the United Kingdom, Australia and New Zealand, permit the imposition of life-long sentences, without parole, for adults convicted of single murders. Even if it can be said that an offender convicted of multiple murders has the constitutional right to the hope that his or her sentence might, one day, be reviewed and reduced such that he or she might be conditionally released, such offenders in Canada have that hope. Offenders convicted of multiple murders, with sentences of consecutive parole ineligibility periods, not only have a right to appeal against the general fitness of such a sentence, but they may also ultimately seek relief from such a sentence by virtue of an application for the royal prerogative of mercy – at a time of their own choosing, and without any time limitation.

[143] Finally, in my view, s. 745.51 of the Criminal Code fully accords with the direction provided by McLachlin C.J.C. in R. v. Lloyd, at paras. 3, 35-36, in the context of considering the constitutional validity of mandatory minimum penalties. McLachlin C.J.C. observed that Parliament should carefully circumscribe the reach of such sentencing legislation, ensuring that there is a legislative “safety valve” to allow sentencing judges to effectively exempt people from the application of the provision for whom the imposition of the sentence would constitute “cruel and unusual punishment” in violation of s. 12 of the Charter. The potential ordering of consecutive periods of parole ineligibility on offenders, provided in s. 745.51 of the Code, is carefully circumscribed in that it only applies in those rare cases where the offender has been convicted of multiple murders and is already facing a sentence of life imprisonment. Further, the discretionary (not mandatory) nature of the sentencing option provided in s. 745.51 of the Code provides the effective “safety valve” for sentencing courts. Indeed, where such a consecutive parole ineligibility period order would be excessive, grossly disproportionate, or otherwise inappropriate, the sentencing judge can simply order the parole ineligibility periods to be served concurrently. In other words, s. 745.51 of the Code permits the imposition of “severe sentences for offences deemed abhorrent,” while also avoiding the imposition of “unconstitutionally disproportionate sentences” in violation of s. 12 of the Charter.

VI

Principles of Fundamental Justice

Section 7 of the Charter of Rights

A. Introduction

[144] As I have indicated, the accused also argues that his constitutional rights under s. 7 of the Charter are infringed through the potential effective imposition of a sentence of life imprisonment, without the possibility of parole, by virtue of s. 745.51 of the Criminal Code. Defence counsel argues that the imposition of consecutive periods of parole ineligibility engage his rights to life, liberty and the security of his person, but fail to do so in accordance with the principles of fundamental justice. Defence counsel argues, more specifically, that the operation of s. 745.51 of the Code is arbitrary, overbroad, grossly disproportionate, and shocking to the Canadian conscience. As I have already indicated, in my view, s. 745.51 of the Code does not violate s. 7 of the Charter.

B. Is the Law Arbitrary?

[145] The principle of fundamental justice that prohibits arbitrariness targets laws where there is “no rational connection” between the purpose or object of the law and the limit or deprivation that it imposes on life, liberty or security of the person. A law that limits these interests in a way that “bears no connection” to its objective “arbitrarily impinges on those interests.” In other words, an arbitrary law is one that is “not capable of fulfilling its objectives” and “exacts a constitutional price without furthering the public good.” See Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 111; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 31, at para. 83.

[146] Applying that governing standard in the context of the present case, it is immediately apparent that there is nothing arbitrary about s. 745.51 of the Criminal Code. The discretionary jurisdiction in a court to order consecutive periods of parole ineligibility when sentencing an offender guilty of multiple murders is a law that quite rationally and logically addresses the perceived problem in the earlier sentencing jurisdiction. By virtue of the mandatory imposition of concurrent parole ineligibility terms, the earlier sentencing jurisdiction appeared to give a volume “discount” to offenders who committed multiple murders. By the enactment of s. 745.51, Parliament provided a sentencing court with the ability to impose, in practical terms, a significantly more severe sentence in multiple murder cases, when compared to cases involving an offender guilty of only a single murder. As the required “rational connection” between the purpose of s. 745.51 of the Code and its impact on the life, liberty and/or security of the offender is clear, the law is not arbitrary.

C. Is the Law Overbroad?

[147] Legislation is overbroad in violation of s. 7 of the Charter where it is “so broad in scope” that it includes some conduct that “bears no relation to its purpose.” Accordingly, where impugned legislation is overbroad it is also arbitrary, at least in part, as there is “no rational connection” between the objects or purposes of the law and “some, but not all, of its impacts.” The impugned law may be “rational in some cases,” but it “overreaches in its effect in others.” The issue is whether the impugned law “goes too far by sweeping conduct into its ambit that bears no relation to its objective.” In assessing complaints of legislative overbreadth, the “focus remains on the individual and whether the effect on the individual is rationally connected to the law’s purpose.” See R. v. Heywood, 1994 CanLII 34 (SCC), [1994] 3 S.C.R. 761, at para 49; Canada (Attorney General) v. Bedford, at paras. 101, 108, 112-117; Carter v. Canada (Attorney General), at paras. 85; R. v. Michaud, 2015 ONCA 585, 127 O.R. (3d) 81, at para. 70, leave refused, [2015] S.C.C.A. No. 450; R. v. Tinker, 2017 ONCA 552, 351 C.C.C. (3d) 310, at paras. 97-98.

[148] In my view, s. 745.51 of the Criminal Code is not overbroad. The legislative means chosen by Parliament to permit sentencing courts, in the exercise of their discretion in individual cases, to impose consecutive periods of parole ineligibility where an accused has been convicted of multiple murders, in accordance with the generally applicable sentencing principles in the Criminal Code, is carefully and reasonably tailored to address the clear objective of the legislation.

[149] By permitting sentencing courts to impose consecutive periods of parole eligibility in multiple murder cases, Parliament ensured that sentencing courts could effectively remedy the perceived deficiencies of the earlier law, which permitted volume “discounts” by the mandatory imposition of concurrent terms in such cases. At the same time, s. 745.51 does not apply to any offender who is not guilty of multiple murder offences. Accordingly, there are no circumstances, and no offenders, in relation to which the impugned legislation “overreaches.”

[150] Indeed, by the creation of a discretionary, permissive jurisdiction, and allowing sentencing courts, in appropriate cases, to impose concurrent terms of parole ineligibility, Parliament has guaranteed that the application of s. 745.51 of the Code will be, if anything, under inclusive. In other words, in the sentencing regime under s. 745.51, there will still be offenders guilty of multiple murders who will receive a sentence that, practically speaking, is exactly the same as offenders who are guilty of a single murder.

[151] Parliament might have elected, as many other countries have done, to prescribe the imposition of a “whole life” or “natural life” term of imprisonment, without any eligibility for parole, for offenders guilty of multiple murders.[^9] However, Parliament adopted a more restrained and restrictive approach, opting instead to permit sentencing courts to impose, in appropriate cases, consecutive fixed terms of parole ineligibility on such offenders. In this regard is important to recall that, as in so many areas of legislative policy decision-making, in relation to the punishment of offenders guilty of multiple murders, Parliament was faced with a range of reasonable potential sentencing options. In order to withstand scrutiny under the Charter, Parliament need not have arrived at the optimal, “perfect” legislative scheme, as subsequently assessed by the judiciary. See Reference re ss. 193 and 195.1(1(c) of the Criminal Code (Man.), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123, at p. 1137-1138; RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at para. 160; Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827, at para. 110.

D. Does the Impugned Legislation Shock the Conscience of Canadians?

[152] The accused contends that the extent to which the application of s. 745.51 of the Code permits the imposition of consecutive periods of parole ineligibility that effectively amount to a life sentence without parole, it shocks the conscience of Canadians. I disagree.

[153] The existence of a discretionary sentencing jurisdiction to potentially impose consecutive terms of parole ineligibility does not shock the conscience of Canadians. Indeed, as I have already demonstrated, the great wealth of Canadian jurisprudence upholding the extradition and surrender of fugitives to countries like the United States where the accused stand, if convicted, to be imprisoned for life, without any possibility of release on parole, expressly holds that the prospect of such sentences, which are more severe than that permitted under s. 745.51 of the Code, do not shock the conscience of Canadians. See Kindler v. Canada (Minister of Justice), at p. 849; United States v. Burns, at para. 28; Suresh v. Canada (Minister of Citizenship and Immigration), at paras. 50-51, 53-54; United States v. ‘Isa, at paras. 71-72; United States v. Qumsyeh, at para. 25; United States v. Lane, at paras. 85-90; United States v. J.H.K., at paras. 4, 30-42; United States v. Wilcox, at paras. 23-41.

E. Is s. 745.51 of the Code Grossly Disproportionate?

[154] The principle of “gross disproportionality” in s. 7 of the Charter is infringed if the impact of the law on the individual’s life, liberty, or security of the person is “so grossly disproportionate” to the objective of the law that “they cannot rationally be supported.” Again, the focus of this inquiry is the negative impact of the impugned legislative measure on the rights of the claimant. This legal standard is “high.” The objective of the law and its resulting impact may be “incommensurate” or merely disproportionate, without reaching the higher standard of “gross disproportionality.” The rule against gross disproportionality “only applies in extreme cases where the seriousness of the deprivation is totally out of sync with the objective of the measure.” In other words, the “connection between the draconian impact of the law and its object must be entirely outside the norms accepted in our free and democratic society.” See Canada (Attorney General) v. Bedford, at para. 120-122, 125; Suresh v. Canada (Minister of Citizenship and Immigration), at para. 47; Carter v. Canada (Attorney General), at para. 89.

[155] In my view, there is nothing grossly disproportionate about the operation of s. 745.51 of the Criminal Code. The seriousness of the deprivation of liberty on offenders guilty of multiple murders is not “totally out of sync” with the goals of the impugned legislation. The connection between the impact of the law and its object is not “entirely outside the norms accepted in our free and democratic society.” As I have already explained, in considering the potential application of s. 12 of the Charter, the impugned provision does not permit the imposition of sentences that are grossly proportionate to the circumstances of the offences or the offender. Rather, s. 745.51 of the Code permits the imposition of proportionate sentences on offenders guilty of multiple murders, in light of the gravity and consequences of their crimes and all of the other relevant circumstances of the case.

[156] Indeed, in my view, the accused’s constitutional challenge to s. 745.51 of the Code on the basis that it is “grossly disproportionate” is advanced little by reliance upon s. 7 of the Charter. However it may be articulated, the main complaint by the accused is that s. 745.51 of the Code amounts to “cruel and unusual punishment” contrary to s. 12 of the Charter because it permits the imposition of a grossly disproportionate sentence. Framing this same argument using the language of s. 7 of the Charter adds little, if anything, to the required analysis. This important point, concerning the nature of the practical relationship between ss. 7 and 12 of the Charter in considering the validity of criminal laws and punishments, has been made by the Supreme Court of Canada on a number of occasions. See, for example, R. v. Généreux, 1992 CanLII 117 (SCC), [1992] 1 S.C.R. 259, at p. 310.

[157] In R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571, the two accused persons challenged the provisions of the former Narcotic Control Act, R.S.C. 1985, chap. N-1, that criminalized the simple possession of marihuana and the possession of marihuana for the purpose of trafficking. Essentially, the accused argued that it was contrary to s. 7 of the Charter for Parliament to criminalize conduct that “results in little or no harm to other people.” More particularly, the accused argued that Parliament was without authority to criminalize conduct unless it causes harm to others, that the criminalization of marihuana possession was arbitrary and irrational and “disproportionate to any threat posed by marihuana use.” In a judgment by Gonthier and Binnie JJ., the majority of the court rejected all of these arguments. In relation to the argument that the impugned legislation was “disproportionate,” the court held, at para. 143, that “the applicable standard is one of gross disproportionality.” Moreover, at para. 158, the court concluded that “the issue of punishment should be approached in light of s. 12 of the Charter” where “the constitutional standard is one of gross disproportionality.” The court also noted that since there was no “mandatory minimum sentence,” the “mere availability” of imprisonment, without more, cannot “violate the principle against gross disproportionality.” Finally, in considering the position advanced by the accused under s. 7 of the Charter, the court concluded, at paras. 160-161:

Is there then a principle of fundamental justice embedded in s. 7 that would give rise to a constitutional remedy against a punishment that does not infringe s. 12? We do not think so. To find that gross and excessive disproportionality of punishment is required under s. 12 but a lesser degree of proportionality suffices under s. 7 would render incoherent the scheme of interconnected “legal rights” set out in ss. 7 to 14 of the Charter by attributing contradictory standards to ss. 12 and 7 in relation to the same subject matter. Such a result, in our view, would be unacceptable.

Accordingly, even if we were persuaded … that punishment should be considered under s. 7 instead of s. 12, the result would remain the same. In both cases, the constitutional standard is gross disproportionality. In neither case is the standard met.

[158] The Supreme Court of Canada adopted a similar approach in R. v. Lloyd, where the accused challenged the constitutional validity of the mandatory minimum sentence of one-year imprisonment for a second drug offence, possession of a controlled substance for the purpose of trafficking, within a ten-year period. The court concluded that the impugned legislation was “cruel and unusual punishment” contrary to s. 12 of the Charter, and not saved as a “reasonable limit” within the meaning of s. 1 of the Charter. The accused had also advanced an alternative argument that the impugned legislation also violated s. 7 of the Charter, as it violated the “principle of proportionality” in sentencing, protected as a “principle of fundamental justice” under s. 7 of the Charter.

[159] McLachlin C.J.C., delivering the judgment of the majority of the court in Lloyd, at paras. 38, 40 and 47, stated that this alternative argument “need not be addressed,” but ultimately concluded that “proportionality is not a principle of fundamental justice.” McLachlin C.J.C. explained, at paras. 41-43, that “principles of fundamental justice in s. 7 must be defined in a way that promotes coherence within the Charter,” and she noted that s. 7 of the Charter must be read in a way that is “consistent” with s. 12 of the Charter. The court further explained that, if the argument by the accused was accepted, it was set a “new constitutional standard for sentencing laws – a standard that is lower than the cruel and unusual punishment standard prescribed by s. 12.” In this regard, the court cited with approval a passage from the judgment of McIntrye J. in R. v. Smith, at p. 1107, in which he indicated that if s. 7 of the Charter were “found to impose greater restrictions on punishment than s. 12” of the Charter by, for example, prohibiting punishments that were “merely excessive,” it would “entirely subsume s. 12 and render it otiose.” The court in Lloyd also cited with approval the passage (quoted above) from Malmo-Levine, noting that the court in that case had “held again that ss. 7 and 12 could impose a different standard with respect to the proportionality of punishment.” See also R. v. Tinker, at paras. 107-121.

VII

The Decision in R. v. Husbands

[160] There is just one previous Canadian court decision that has expressly considered the constitutional validity of s. 745.51 of the Criminal Code, namely, the decision of Ewaschuk J. in R. v. Husbands, [2015] O.J. No. 2673 (S.C.J.), reversed on other grounds, 2017 ONCA 607.

[161] The constitutional challenge to s. 745.51 of the Code in Husbands was made on the same basis as the present case: that the provision was contrary to ss. 12 and 7 of the Charter of Rights. Further, defence counsel in Husbands advanced, essentially, the same arguments that are being advanced by defence counsel for the accused in the present case. Ultimately, Ewaschuk J. concluded that s. 745.51 of the Code was constitutionally valid federal legislation that was not contrary to either s. 12 or s. 7 of the Charter. In reaching this conclusion, Ewaschuk J. provided, essentially, the following analysis:

• The power to impose consecutive periods of parole ineligibility for multiple murders under s. 745.51 of the Code is discretionary, not mandatory. Concurrent parole ineligibility terms may be imposed in appropriate cases. [Husbands, at paras. 3, 8].
• This discretionary power requires the sentencing court to be guided by two principles: (1) the fundamental principle that a sentence must be proportionate to the gravity of the offences and the degree of responsibility of the offender; and (2) the important principle of totality, requiring that the combined sentence must not be unduly long or harsh. [Husbands, at paras. 8-9].
• The jurisprudence from the European Court of Human Rights does not establish that, in cases of multiple murders, the accused must have a parole hearing within a specific period of 25 years, but rather establishes only that an offender subject to a “whole life sentence” without a reasonable prospect of eventual release is contrary to Article 3 of the Convention. [Husbands, at para. 12].
• Ewaschuk J. rejected the defence argument that compliance with s. 12 of the Charter requires that an offender be given parole hearing no later than after 25 years of imprisonment. [Husbands, at para. 13].
• Given that the jurisprudence supports the constitutional validity of the imposition of life imprisonment without eligibility for parole for 25 years for a single conviction for first-degree murder, it was “open to Parliament to arm the judiciary with the discretionary power to impose consecutive periods of parole ineligibility for multiple murders” beyond the 25-year period. The number of murdered victims is “the most relevant factor in determining what is a fit and just length of imprisonment prior to the right to have a parole hearing.” [Husbands, at para. 14-16].
• Where the sentencing judge imposes consecutive parole ineligibility periods under s. 745.51 that amounts to a sentence that is “unduly long or harsh,” such an unfit sentence is subject to review and correction by the Court of Appeal. [Husbands, at para. 17-20].
• Given the particular circumstances of the offences and the offender in the Husbands case, the total period of 40 years parole ineligibility sought by the Crown would not contravene s. 12 of the Charter. [Husbands, at para. 21-22].
• Considering the potential application of s. 7 of the Charter, the decision in R. v. Lyons does not afford a prisoner “a right to have a parole hearing in all circumstances of detention,” or at any particular fixed point in time, but rather declares only that an offender who is sentenced to an “indeterminate” period of imprisonment has “the right to a timely parole hearing” to determine whether he or she “continues to pose a real risk of re-offending” if released into the community. [Husbands, at paras. 24, 26].
• The question of the constitutional validity of s. 745.51 of the Criminal Code falls to be determined under s. 12 of the Charter, which specifically prohibits “cruel and unusual” punishments, rather that under s. 7 of the Charter, which is a more “general provision.” Nevertheless, s. 745.51 does not violate s. 7 of the Charter. [Husbands, at para. 27].

[162] As will be apparent from these reasons, I am in agreement with this analysis, and with the conclusions reached, by Ewaschuk J. in R. v. Husbands.

VIII

Conclusion

[163] In the result, the application brought on behalf of the accused to have s. 745.51 of the Criminal Code declared unconstitutional is dismissed. In my view, the impugned legislation is constitutionally valid. It does not violate either s. 12 or s. 7 of the Charter of Rights. Of course, as I have already indicated, how s. 745.51 of the Criminal Code should be applied in the circumstances of the present case still remains to be considered and determined at the conclusion of a full sentencing hearing.

[164] I am indebted to counsel for all of their helpful assistance in relation to this application.

______________________________

Kenneth L. Campbell J.

Released: November 17, 2017

Appendix

Statistics Regarding Applications for the Royal Prerogative of Mercy

[Parole Board of Canada – From Performance Monitoring Reports – By Calendar Year]

Year	Requests	Granted	Denied	Discontinued
Up to 1993	317	119	70	125
1994	28	6	2	21
1995	61	3	4	35
1996	44	11	7	38
1997	32	6	8	33
1998	44	14	2	34
2003	29	0	0	4
2004	21	0	1	26
2005	18	1	1	19
2006	18	1	2	22
2007	24	2	0	14
2008	21	0	1	21
2009	37	1	2	15
2010	31	0	0	32
2011	32	2	1	21
2012	52	12	1	20
2013	40	0	1	14
2014	28	0	1	24
Totals	877	178	104	518
Percent Totals	100%	20.3%	11.9%	59.1%

CITATION: R. v. Granados-Arana, 2017 ONSC 6785

COURT FILE NO.: CR-17-7/275

DATE: 20171117

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

- and -

MAURO GRANADOS-ARANA

Ruling

Constitutional Validity of

s. 745.51 of the Criminal Code

(Consecutive Periods of Parole Ineligibility for Multiple Murders)

K.L. Campbell J.

Released: November 17, 2017

[^1]: In s. 676(6) of the Criminal Code, the Attorney General is also provided with a right of appeal against any decision of a sentencing court not to impose an order requiring consecutive parole ineligibility periods in relation to offenders guilty of multiple murders. [^2]: Article 110 of the Rome Statue of the International Criminal Court, which Canada has ratified, effectively provides that all sentences of “life imprisonment” that are imposed by the international criminal court shall be reviewed when the offender has served 25 years of their sentence, and “not before,” in order to determine whether the sentence should be reduced. This international obligation concerning sentences imposed by the international criminal court does not, however, constitutionally bind the Parliament of Canada to enact identical domestic legislation to govern the punishment of offenders guilty of multiple murders in Canada. See Daniels v. White, [1968] 517, at p. 541; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at paras. 59-65; Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89, [2002] 3 F.C. 537, at paras. 35-36, leave denied, [2002] S.C.C.A. No. 183; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at paras. 53-56. [^3]: For sake of completeness, the other four reported cases to date are: R. v. Koopmans, 2015 BCSC 2120, [