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Cruel and Unusual-Not

Weinie

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https://www.msn.com/en-ca/news/canada/quebec-mosque-shooters-40-year-sentence-was-cruel-and-unusual-punishment-appeals-court-rules/ar-BB1bnnRz?appwebview=true&ocid=msedgdhp

What was cruel was the absolute crushing sorrow inflicted that day on 6 families and friends of the murdered: that courts have, once again, decided that there is some sort of arbitrary limit to culpability is not, in this day and age, "unusual"


 

brihard

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Presently binding only in Quebec, but we’ll see appeals in other jurisdictions soon if not already. The one that comes immediately to mind is Justin Bourque; he’s serving three consecutive periods of parole ineligibility, or 75 years.

I’m not at all a fan of this decision. We don’t have the death penalty and I don’t want us to have one, but we absolutely need to ability to sentence someone to jail til they die.
 

QV

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Halifax Tar said:
Do we have a justice system anymore ?  Or is there a better name ?

It’s referred to as a legal system, since justice is typically lacking.
 

Dana381

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Absolutely Despicable. Was this judge looking for his/her 15 minutes of fame? The courts should be sending a clear message that terrorism will not be tolerated. It doesn't matter which side of the spectrum it comes from.
 

dapaterson

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The court's findings are available at: https://courdappelduquebec.ca/en/judgments/details/bissonnette-v-the-queen/

Note that the English language translation linked on that page is not considered official.
 

Weinie

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dapaterson said:
The court's findings are available at: https://courdappelduquebec.ca/en/judgments/details/bissonnette-v-the-queen/

Note that the English language translation linked on that page is not considered official.

From the findings:

For example, the 150-year period that could have been imposed pursuant to the provision is grossly disproportionate because it authorizes the accused to apply for parole at a moment when he will obviously be deceased. This possibility alone demonstrates the clearly excessive and even absurd scope of the provision. The Court also agrees with Justice Huot as regards s. 7 of the Canadian Charter. It is of the view that the provision infringes on the right to liberty and security in a manner that is inconsistent with the principles of fundamental justice because of its excessive scope and its disproportionality in relation to Parliament%u2019s goal.

Perhaps "parole" should not be an option in these cases. The balance in Canada between rehabilitation versus punitive has swung wildly to the former.

As to infringing on the right to liberty and security.....IMO he forfeited those rights when he shot those people. Rights, broadly, under a social-good based approach should not be finite.
 

FJAG

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Let's be clear about one thing; this isn't about what he did but how far the law should go in punishing someone.

The sequence here is that prior to the enactment of s 745.51 as written, a judge could only impose a a maximum period of 25 years before the individual was able to apply for parole regardless of the periods of consecutive sentences. The parole periods had to be counted concurrently.

S 745.51 as now written was an initiative of the Conservative government in 2011 and allowed a judge to order consecutive sentences with the parole periods also being consecutive.

In this case the trial judge thought that the crime was so egregious (six counts of first degree murder and six of attempted murder) that the judge imposed five life terms with parole at 25 years to be served concurrently and a sixth life term with parole at 15 years to be served consecutively which meant that Bissonnette could apply for parole only after 40 years.

The Quebec Court of Appeal doesn't argue with the horror of the crimes committed but addresses the question of whether under the law such a sentence was legal. It starts by saying that the proper interpretation of s 745.51 is that the judge can only impose parole ineligibility periods consecutively in multiples of 25 ie. 25, 50, 75 etc. Since the trial judge clearly decided that no parole for 50 years was inappropriate and imposed 40 years instead, the question therefore turned to whether he could do so under the law. The Appeal Court held that he could not and went on to discuss other aspects as to whether 50 years, 75 years etc would ever be appropriate under the Charter and found it would not. Accordingly the court has set back s 745.51 to a maximum of 25 years of parole ineligibility and suggested parliament consider redrafting the law (presumably to give a trial judge more options)

I expect this one will go to the Supreme Court and there's no need to worry, Bisonnette won't be getting out any time soon.

https://courdappelduquebec.ca/fileadmin/Fichiers_client/Jugement/200-10-003629-198_BISSONNETTE_VF_EN.pdf

:cheers:
 

CBH99

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Halifax Tar said:
Do we have a justice system anymore ?  Or is there a better name ?


As someone who works in the 'legal system' here in Alberta, I wouldn't call it a justice system.  Not even close.

I've seen accused persons with a rap-sheet a mile long, who have never stepped foot in prison.  Fines, community service, possibly sentences to served on weekends, restitution orders, etc etc - but no prison time.

I've also seen really good people who were in crappy situations, who didn't have a criminal record, be sentenced to lengthy prison stints.  These individuals were not a threat to the community, and as soon as they were arrested, I think that would have been enough of a scare to ensure they smarten up.

I've also seen plenty of people put in prison for non-criminal issues.



QV said it.  It's a legal system, not a justice system.  :2c:
 

Weinie

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FJAG said:
Let's be clear about one thing; this isn't about what he did but how far the law should go in punishing someone.

FJAG,

I deleted the bulk of your response, but I appreciate it, as it clarified some extant jurisprudence that I was not privy to.

Your sentence above is the crux of the question. You posit not what he did as the consideration, but rather what is the consensus on scale of punishment allowed. I suggest the two are inextricably linked.

I am not apropos on how courts and punishment work, I have very little personal experience. But I will suggest this. If the approach in Canadian law and courts is that if you kill one person, 6 people, or 50 people, and that it is cruel and unusual punishment to consider these crimes separate on their own merit in terms of punishment, then we are in a bad place. 
 

FJAG

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Weinie said:
FJAG,

I deleted the bulk of your response, but I appreciate it, as it clarified some extant jurisprudence that I was not privy to.

Your sentence above is the crux of the question. You posit not what he did as the consideration, but rather what is the consensus on scale of punishment allowed. I suggest the two are inextricably linked.

I am not apropos on how courts and punishment work, I have very little personal experience. But I will suggest this. If the approach in Canadian law and courts is that if you kill one person, 6 people, or 50 people, and that it is cruel and unusual punishment to consider these crimes separate on their own merit in terms of punishment, then we are in a bad place.

Hi Weinie.

Just to make it clear, that isn't so much my position but the approach that the Court of Appeal took.

While there is a technical issue about whether the trial judge could impose an additional 15 years parole ineligibility, the rest of the case discusses just how far the 745.51 can or should go under the provisions of the Charter.

At the heart of this was the Conservatives attempt to ensure that heinous crimes are punished commensurately and an overarching law that puts limits on that.

I read the trial judge's consideration on the principles of sentencing and IMHO he was bang on. I think that the Court of Appeal also thought 40 years parole ineligibility wasn't inappropriate but they were constrained with letting that go because the law required 25, 50, 75 year etc multiples. The Court of Appeal invited Parliament to review and revise the law (and in my view they were specifically saying do that so that the type of sentence the trial judge gave is in fact legally possible under the Charter). They wouldn't do that unless they see that there is some more room here to exceed the previous 25 year maximum.

Some may see this as a Parliament against the judiciary issue but it really isn't because Parliament passed both laws: the amended s 745.51 and sections 7 and 12 of the Charter. The judiciary's role is to interpret and balance the former in the light of the latter. If popular laws enacted by the Parliament are continuously struck down by an overenthusiastic judiciary then Parliament can always move to amend the Charter. Parliament really does have the last word, if it chooses to use it.

My personal opinion is that sometimes there is a lot to be said for capital punishment.

:cheers:
 

mariomike

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FJAG said:
My personal opinion is that sometimes there is a lot to be said for capital punishment.

:cheers:

Somebody said, "We should forgive, but not before they are hanged."  :)
 

Weinie

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FJAG,

Again, thanks for your context. Much appreciated.

I didn't realize that the law specified sentencing in 25 year increments: I thought, based on sentencing that I have seen, that there was a range of punishments that a judge could impose, and it was mitigated (or not) by a whole host of extenuating factors. Whether or not a parole tack on is easily divisible by 25 (and I am not trying to be flippant here) did not figure in to my calculus. I get it that justice sometimes has to make hard decisions. Having said that. "The law is an ***"
 

FJAG

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Weinie said:
FJAG,

Again, thanks for your context. Much appreciated.

I didn't realize that the law specified sentencing in 25 year increments: I thought, based on sentencing that I have seen, that there was a range of punishments that a judge could impose, and it was mitigated (or not) by a whole host of extenuating factors. Whether or not a parole tack on is easily divisible by 25 (and I am not trying to be flippant here) did not figure in to my calculus. I get it that justice sometimes has to make hard decisions. Having said that. "The law is an ***"

Just to be accurate it's not "sentencing in 25 year increments", its about the "parole" period. S. 745.51 provides:

745.51 (1) 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.

Ss 235(1) and 745(a) provide:

235 (1) Every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.

745 Subject to section 745.1, the sentence to be pronounced against a person who is to be sentenced to imprisonment for life shall be
(a) in respect of a person who has been convicted of high treason or first degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served twenty-five years of the sentence

Accordingly for a case of first degree murder, life imprisonment and no parole for 25 years is the mandatory sentence on conviction. Therefore if there are two sentences of first degree murder and the sentences are to be served consecutively then you automatically have the result of life in prison with 50 years of parole ineligibility. At least according to the Court of Appeal's interpretation of s 746.51 as written. (And subject to anything the SCC may say in the future, I think they are right)

:cheers:
 

Kat Stevens

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Justice and the law have the square root of fuck all to do with each other. If there was justice, that asshole would be smoking a turd in hell.
 

Eaglelord17

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Brihard said:
Presently binding only in Quebec, but we’ll see appeals in other jurisdictions soon if not already. The one that comes immediately to mind is Justin Bourque; he’s serving three consecutive periods of parole ineligibility, or 75 years.

I’m not at all a fan of this decision. We don’t have the death penalty and I don’t want us to have one, but we absolutely need to ability to sentence someone to jail til they die.

Jail until they die is the death penalty, just with time being the method of execution. If these people have done enough damage to society to warrant life in prison they have done enough to be put to death. Save the 120k a year it costs to keep these drains on society alive, maybe it can go towards something actually beneficial.

These judges are getting it wrong. The criminal violated multiple upstanding members of society's rights in this case specifically the right to life, liberty, and security of the person. It is only fair and reasonable to have his life taken from him by either a life sentence (or in my preferred case a quick death). We need to stop worrying so much about the criminals rights and start considering the rights of those they violated.
 

daftandbarmy

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Eaglelord17 said:
Jail until they die is the death penalty, just with time being the method of execution. If these people have done enough damage to society to warrant life in prison they have done enough to be put to death. Save the 120k a year it costs to keep these drains on society alive, maybe it can go towards something actually beneficial.

These judges are getting it wrong. The criminal violated multiple upstanding members of society's rights in this case specifically the right to life, liberty, and security of the person. It is only fair and reasonable to have his life taken from him by either a life sentence (or in my preferred case a quick death). We need to stop worrying so much about the criminals rights and start considering the rights of those they violated.

Except that it's easy to get that 'death penalty thing' wrong pretty frequently, it seems:



A variety of individuals are claimed to have been innocent victims of the death penalty. Newly available DNA evidence has allowed the exoneration and release of more than 20 death row inmates since 1992 in the United States, but DNA evidence is available in only a fraction of capital cases. Others have been released on the basis of weak cases against them, sometimes involving prosecutorial misconduct; resulting in acquittal at retrial, charges dropped, or innocence-based pardons. The Death Penalty Information Center (U.S.) has published a list of 10 inmates "executed but possibly innocent".

https://en.wikipedia.org/wiki/Wrongful_execution#:~:text=A%20variety%20of%20individuals%20are,a%20fraction%20of%20capital%20cases.
 

mariomike

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Unlikely to make a comeback anytime soon. Canada hasn't had an execution in almost 60 years.
 

Brad Sallows

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>These judges are getting it wrong.

Yes.  Sometimes judges (and juries) get it wrong.  How would you propose to compensate innocent people wrongly convicted and executed?
 

FJAG

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Brad Sallows said:
>These judges are getting it wrong.

Yes.  Sometimes judges (and juries) get it wrong.  How would you propose to compensate innocent people wrongly convicted and executed?

A Justin Trudeau apology?

I know, I know, there's no place for levity on a serious subject. But let's face it, we all know the death penalty will never return to these lands so are we even debating the issue seriously.

:cheers:
 
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