Stay in Your Lane

Published on December 4, 2020 by Olga Redko (she·her·elle)

Less than a week after the Supreme Court rendered its most recent case discussing constitutional remedies in Ontario (Attorney General) v. G, 2020 SCC 38, the Quebec Court of Appeal followed suit in Bissonnette v. R, 2020 QCCA 1585.

Of course this case is not principally about constitutional remedies: rather, it is an appeal from the sentence of Alexandre Bissonnette, who pleaded guilty to six counts of first degree murder and six counts of attempted murder committed on January 29, 2017 against worshippers in the Islamic Cultural Centre of Quebec City. The sentencing judge sentenced the appellant to imprisonment for life and ordered that he not be eligible for parole until he has served at least 40 years of his sentence.

The appeal concerned specifically the determination of the period of parole eligibility. Pursuant to s. 745.51 of the Criminal Code, the Crown had requested that the trial judge sentence the appellant to six consecutive 25-year periods of parole ineligibility, for a total of 150 years. Section 745.51 allowed a sentencing judge to impose either concurrent 25-year eligibility periods or multiple consecutive 25-year ineligibility periods. There was no room for a judge to exercise their discretion and impose an ineligibility period of an in-between duration.

The sentencing judge therefore examined the constitutionality of s. 745.51 and concluded that the absence of discretion to impose a period of parole ineligibility shorter than 25 years violated the Canadian Charter of Rights and Freedoms’ right to liberty and its guarantee against cruel and unusual punishment. Neither violation could be saved under section 1. As a remedy, the judge read into s. 745.51 the discretion to impose an ineligibility period that was more than 25 years but less than 50 years (that is, less than the imposition of any consecutive period of ineligibility).

In detailed reasons, the Court of Appeal agreed with the sentencing judge that the imposition of concurrent time periods for parole eligibility violated the Charter. However, the Court disagreed with the sentencing judge’s chosen remedy.

The Court first covered the variety of available constitutional remedies:

[155] […] the leading case on constitutional remedies is Schachter, supra. In that decision, Lamer, C.J. pointed out that once the incompatibility or unconstitutionality of a statute or provision has been determined and defined, the courts have a variety of solutions available to them: (1) reading down (or severance), (2) reading in, or (3) purely and simply striking down the provision; in all cases, the court can temporarily suspend the effects of the measure chosen.

[156] There are cases in which only part of the statute or provision is offending or unconstitutional. If that part can be severed and the remaining portion is constitutional, it is logical to only declare that part inoperative through reading down, without having to strike down the entire statute or provision. This avoids declaring an otherwise valid part of the statute inoperative. For example, the offending portion of a statute that wrongly includes a discriminatory provision within a set of provisions that are constitutional could, through reading down, be struck down, while retaining a statute that otherwise serves the public interest. The exercise therefore consists in removing the defective portions (which is why it is sometimes referred to as severance).

[157] Reading in has the opposite effect: the court extends the scope of the legislation by adding to it what it wrongly excludes. For example, the court could include a group of people that the legislation does not specifically target. Reading in would be the logical solution, because simply striking down the statute could be contrary to the public interest. Indeed, if the entire statute were struck down, the persons it seeks to protect would no longer be protected until new legislation was enacted.

[158] To use either of these techniques, the inconsistency must be such that it can “be dealt with alone”, which, in principle, will not be the case if there “are other parts of the legislation inextricably linked to” the offending portion.

The Court emphasized that these techniques “make it possible to respect the role of the legislature if their use does not constitute an undue intrusion by the courts into the legislative sphere.”[1] This of course implies that such remedies are only available if a court can comfortably conclude that “Parliament would have enacted the statute, with the alterations made by the court, if it had known that it mistakenly excluded or included certain points.”[2] The difficulty of such an exercise means that reading down or reading in (indeed, especially reading in) should only be used in the clearest of cases.

Reading in, in particular, may not be used “if the methods identified by the legislature are essential to the scheme and spirit of the law.”[3] In this case, the Court of Appeal held that the fixed 25-year ineligibility periods for every count of first-degree murder were inextricably bound up with the legislative objective of ensuring that every life taken is given the same value.[4] In imposing fixed periods, Parliament expressly excluded issuing any discretionary power to the sentencing judge. Accordingly, in reading in the discretion to impose a shorter period, the judge usurped the role of Parliament.

Instead, the Court of Appeal simply held that s. 745.51 of the Criminal Code was unconstitutional and therefore invalid. Without suspending the declaration of unconstitutionality, the Court imposed a 25-year period of parole ineligibility based on the law as it stood before the amendment that enacted s. 745.51.

The Court’s reasons serve as a caution to litigants who seek to craft their own remedy for the constitutional failing on which they seek to invalidate legislation. As a reflection of the principle of separation of powers, this seems like the correct result. However, the judgment in Bissonnette also raises the question of the interaction between reading in as a remedy under s. 52 of the Constitution Act, 1867, and the nature of the individual remedies available for a Charter breach under s. 24 of that same Act.

Where reading in (or reading down) is deemed to be inappropriate, can an individual remedy such as a constitutional exemption – which is inherently based on the principle that judges have a certain degree of discretion under s. 24 to craft an “appropriate and just” remedy – likewise be inappropriate? Thinking of the constitutional exemptions granted to plaintiffs in cases like Carter v. Canada (Attorney General), 2016 SCC 1 and in Truchon c. Procureur général du Canada, 2020 QCCS 2019, it seems that there is some inconsistency in courts recognizing that the appropriate remedy to deal with the law as a whole is a declaration of invalidity because to read in any degree of judicial discretion would violate the legislator’s objective, but that a remedy may nevertheless be judicially crafted to fit the particular circumstances of the individual plaintiffs.

If it is “appropriate and just” for individuals to benefit from constitutional exemptions even where doing so may clearly run contrary to the legislative intent underlying an invalidated provision (particularly where the declaration of invalidity of a provision is suspended), this raises the question why other similarly-situated parties who have not undertaken lengthy and costly legal proceedings should not receive the same benefit through a more broader judicial interference with the text of the impugned law via reading in. Conversely, if the latter option is inappropriate, why would individual remedies nevertheless be “appropriate and just”?

As is often the case, this question will have to be answered in subsequent jurisprudence. For now, the Court of Appeal’s reasons serve as a caution to judges to remain mindful of their role vis-à-vis that of the legislator when remedying unconstitutional legislation.

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