Legal battles begin after B.C. judge rules 25-year sentences for first-degree murder are unconstitutional
The Law Courts building, which is home to B.C. Supreme Court and the Court of Appeal ,in Vancouver on Nov. 23, 2023.DARRYL DYCK/The Canadian Press
The sentence for first-degree murder – 25 years in jail without the chance of parole – faces a legal reckoning after a judge in British Columbia this week ruled the law’s inflexibility violates the Charter of Rights and Freedoms prohibition against cruel and unusual punishment.
The B.C. Supreme Court ruling from Justice David Crossin, published Wednesday, reopens a national debate and potentially sparks a years-long legal odyssey over one of the country’s longest-standing mandatory minimum criminal punishments.
While the ruling is provisional and is not binding on other provinces, experts say it could end up in the Supreme Court of Canada.
In mid-2021, Luciano Mariani murdered Caroline Bernard, his former girlfriend, beating her to death with a baseball bat while she slept with her four-year-old daughter. Mr. Mariani, in his mid-40s, pled guilty in 2023 to first-degree murder – planned and deliberate.
But he also asked a B.C. court to review whether the punishment is constitutional. There were 13 days of hearings over five months last year.
At issue is a 2011 change in the Criminal Code. Then-Prime Minister Stephen Harper’s Conservatives removed the faint-hope option for early release for defendants convicted of first-degree murder.
The Supreme Court of Canada in 1990 upheld the minimum sentence of 25 years for first-degree murder, but the B.C. court this week ruled Mr. Harper’s change means the mandatory minimum sentence is unconstitutional.
“I find that the scope and reach of the offence is wide and results in a single sentence being pronounced upon individuals with vastly different levels of moral culpability,” Justice Crossin wrote.
The B.C. Prosecution Service will have a chance at another hearing in the current court, not yet scheduled, to argue that the sentence for first-degree murder should remain as is because of Section 1 of the Charter, which puts reasonable limits on individual rights and freedoms.
Mr. Mariani remains in jail.
Whatever the outcome, appeals are likely. The B.C. Prosecution Service said on Friday it was premature to comment on an appeal to the higher courts.
Steven Penney, a law professor at the University of Alberta, called the court ruling “highly intricate.” He said there was an overemphasis on rehabilitation compared with denouncing the “especially brutal” crime.
“It’s also, I’d say, out of step with how the vast majority of Canadians would feel about an appropriate punishment for first-degree murder,” said Prof. Penney.
Lisa Kerr, an associate professor of law at Queen’s University, whose focus includes criminal sentencing, said the rigidity of 25 years without parole has been questioned by legal scholars and lawyers for years, for the same reasons the B.C. judge cited.
“A violent and cruel murder of a vulnerable person will attract the same penalty as a woman with no criminal record who plans a killing of an abusive spouse,” said Prof. Kerr.
Requests to apply the previously available faint-hope clause were rarely granted, she added.
That all first-degree murderers must serve 25 years is “a sort of philosophical point that doesn’t really make a lot of sense,” said Donna Turko of Turko & Co. in Vancouver, one of the defence lawyers in the case.
She said her client’s guilt is not in doubt – “he planned it, he bought a baseball bat, he drove there, he had time to reconsider” – but the legal arguments over the mandatory minimum are just beginning.
“I’m sure it’ll go, likely, to the Supreme Court,” said Ms. Turko.
There have been unsuccessful challenges to the 25-year minimum in the past. However, in 2022, the Supreme Court of Canada ruled that consecutive life sentences for Alexandre Bissonnette, who killed six Muslim worshippers at a Quebec City mosque in 2017, were unconstitutional.
Chief Justice Richard Wagner, on behalf of a unanimous Supreme Court, wrote of the unspeakable horror of the murders, but said that Charter rights apply even to the “vilest of criminals.” The Chief Justice said jail for life, without the possibility of parole, is “intrinsically incompatible with human dignity.”
In the B.C. case, Justice Crossin said Parliament has “broad discretion” to levy criminal punishments but, ahead of his conclusion, he cited a part of the Bissonnette decision in which Chief Justice Wagner wrote: “To ensure respect for human dignity, Parliament must leave a door open for rehabilitation.”