Bourque may face 75 years in prison because of Code change

Article originally published on August 12, 2014 by Advocate Daily.

The New Brunswick man who has pleaded guilty to killing three RCMP officers and injuring two others in a shooting rampage may face serving 75 years in prison before parole eligibility thanks to a relatively new – and untested – provision in the Criminal Code of Canada, says Toronto criminal lawyer Aaron Harnett.

He explains that the provision, s. 745.51 of the Code, was proclaimed into force in December 2011 as part of Bill C-48, sometimes called the Protecting Canadians By Ending Sentence Discounts for Multiple Murders Act.

The provision says that if an offender who “is convicted of murder and who has already been convicted of one or more murders, the judge … may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission by order decide that the periods without eligibility for parole for each murder conviction are to be served consecutively.”

The Code also stipulates that an offender must serve 25 years before parole eligibility with any first-degree murder conviction.

Harnett tells AdvocateDaily.com that the amendment means that judges now have the discretion to order the parole eligibility periods to run concurrently, as they were before the new provision came into effect, impose them to run consecutively, or to impose one or more of them to run consecutively.

It’s a jump that the lawyer says may be too extreme in the case of multiple first-degree murder convictions, where sentences are imposed in 25-year increments.

“The problem with this section as it applies to multiple first-degree counts is that the increments/steps are too radical,” he says. “Jumping the ineligibility by 25-year blocks has too low a ‘resolution’ for the fine adjustment which is the sentencing process.”

He makes the comments following a court hearing in which Justin Christien Bourque pleaded guilty to three counts of first-degree murder and two counts of attempted murder in connection with the June shootings in Moncton.

The New Brunswick judge in the matter advised Bourque in court that he could be facing consecutive life sentences with no chance of parole for 75 years for the three first-degree murder charges, says CBC News.

The sentencing hearing will be held Oct. 17, says the public broadcaster.

Harnett says it would be an unusual sentence and defence counsel for Bourque will likely make submissions on the issue of consecutive versus concurrent parole ineligibility. His lawyer may also point to Bourque’s mental state and early guilty pleas as mitigating factors for a concurrent as opposed to a consecutive sentence.

“The lawyer may fight to reduce the parole ineligibility (from 75 years) because it really means a lifetime in prison and it does seem to run contrary to basic principles of Canadian sentencing that sentences should always make room for the potential for rehabilitation,” he says.

Harnett points out that in cases of multiple murder, the faint hope clause – the entitlement to make application for a review of parole eligibility after serving 15 years – no longer applies.

He says it’s difficult to reconcile the new section of the Code with the totality principle of sentencing, which stipulates that the total sentence should not necessarily equal the sum of the parts. That is, you do not just fix a sentence for each offence on which there is a conviction, where consecutive sentences are permitted and appropriate, add them up and get a total, and then impose that total as the final sentence. Rather, you look at the total in the context of the whole of the circumstances to exercise a judgment as to what is an appropriate sentence, and then you cross-check that by looking at the statutory requirements and the opportunities as to how to get there with the matrix of possibilities of parole ineligibility periods and consecutive or concurrent application of those different periods.

“If this was a professional hitman, for example, who had previously been sentenced to life imprisonment and then other murders are discovered for which he is prosecuted showing a trend of murderous activity over a period of time, one could reconcile the natural lifetime in jail versus the role of rehabilitation,” Harnett says. “Where the event takes place in a short period of time, it does strike me that the balance is out whack.

“However, it’s also difficult to conscience the legal response for multiple murders as having the same penalty as one murder, which strikes as disproportionate and lenient. That’s troublesome as well.”

Harnett notes there haven’t yet been any constitutional challenges of the new Code provision to date and there’s no indication that Bourque’s counsel is planning to challenge the constitutionality of the change as it relates to that case.