When the Supreme Court of Canada (SCC) considers whether consecutive lifetime sentences are a form of “cruel and unusual punishment” in March, Queen’s Law community members will be making their case. The SCC has granted the Queen’s Law Prison Law Clinic (QPLC) permission to intervene in the appeal on the Quebec City mosque shooter’s sentence.
“Bissonnette v. the Queen is a case about whether sentences of permanent imprisonment can be constitutional,” says Kathy Ferreira, Law’01, QPLC Director. “These are sentences with no rehabilitative purpose and no hope of release. It is our view that such a sentence is at odds with the core values of our penal order, and contrary to basic human dignity.”
Relying on the scholarship of Professor Lisa Kerr and with research supported by three QPLC students and representation by two alumni, the clinic is proposing a refinement to the analysis of the Canadian Charter’s section 12, “the right not to be subjected to any cruel and unusual treatment or punishment.”
Paul Quick, Law’09, QPLC staff lawyer, says, “We argue that there are two distinct ways in which a punishment can be cruel and unusual: it can be an excessively severe amount of punishment, or it can be an inherently objectionable kind of punishment.”
As an example, he says, mandatory minimum sentences may be unconstitutional if they are too severe in a particular circumstance, but such forms of punishment as flogging or amputation would be unconstitutional in any circumstance. “Basically,” he explains, “we argue that permanent imprisonment without hope is in this second category; that it is a qualitatively different form of punishment. It is not a question of whether the punishment is deserved, but rather a question of whether such punishment can legitimately be imposed at all.”
When considering external lawyers to represent the QPLC, Erin Dann, Law’07, of Embry Dann LLP in Toronto was top of mind. “Erin is such a respected voice in criminal law,” says Kerr, “and she has always been willing to take on tough issues.”
Dann jumped at the opportunity. “The Bissonnette case raises important questions about the meaning of ‘cruel and unusual punishment’ in Section 12 of the Charter, the limits on how the state can legitimately punish, and how our courts should approach Section 12 challenges,” she says. “The QPLC has a unique perspective on these issues because of its expertise and vast experience in prison law and prisoners’ rights litigation. I knew the clinic would be well placed to make an important contribution as an intervener and I feel fortunate that I get to be a part of that effort.”
Working with her is her firm colleague, Paul Socka, Law’18, who Ferreira has called a “standout” since he was a QPLC student in 2016. “My summer with the QPLC was my first job in law and it was a hugely formative experience in becoming a criminal lawyer,” he says. “To be working with the clinic again in such an important case and putting such important arguments before the SCC this early in my career feels a bit surreal.”
Students in the Advanced Prison Law course have been assisting Quick with research, starting with Saghi Khalili and Mallory Wyant, both Law’21, last winter. Since last fall, Jordan Peach, Law’22, has been continuing the important work. So far, she has reviewed and divided all relevant SCC cases into two categories of Section 12 arguments (challenges to mandatory minimums that deal with severity of punishment and challenges to specific kinds or methods of punishment); and reviewed the seminal Ontario Court of Appeal cases that challenged the constitutionality of segregation, noting important comments by judges on how the effects of prolonged segregation constitute cruel and unusual punishment.
For Peach, it has been most important to learn to think about the bigger picture. “The QPLC’s position in this case is about protecting certain Charter values and objectives of the prison system and, in a controversial case like this one, that requires one to think beyond the offender and what they have done,” she explains. “In a case like this, how one may feel about a particular person implicated in the case needs to be put aside to be able to focus on the issue being addressed – whether the possibility of imprisonment without any potential for parole aligns with Canadian constitutional values and what the long-term consequences of this could be.”
Seeing all the work that goes into cases being heard at the Supreme Court level has also been “one of the greatest benefits” to Peach. “As an intervenor, the QPLC has limited space to make written arguments (and even less for oral arguments),” she says. “Every word really counts, and it has been a months-long, collaborative, and very creative effort from different lawyers, legal academics, and students like me to create the final factum.”
That final factum, for which Quick worked closely with Dann and Kerr in order to refine their legal arguments, was filed in November.
“It was a real pleasure to be part of a Queen’s Law team effort!” says Dann, who like Quick and Socka, was the Queen’s Law medalist of her graduating class. “Exchanging ideas and building our argument has been a terrific experience. It has resulted, I hope, in us making a meaningful contribution to the arguments the Supreme Court will hear and consider in this case.”
Dann and Socka will present the team’s arguments at the SCC on March 24. “If the Court adopts our submissions,” Quick says, “it will not only protect against sentences without hope in this case, but will provide a vital tool to courts when assessing the constitutionality of conditions of confinement. Some penal methods experienced by our clients are simply incompatible with human dignity, and it is important for courts to be able to address such methods directly.”
The Queen’s Law Clinics gratefully acknowledge the support of Legal Aid Ontario, the Law Foundation of Ontario, Pro Bono Students Canada, the Class of Law’81, the United Way of KFL&A, and alumni, friend, and industry sponsors.
By Lisa Graham