Push to deny Justin Bourque parole for 75 years continues, but law experts say it may not be just

Steve Mertl
National Affairs Contributor
Daily Brew
Psychiatric report for Bourque, who killed 3 Moncton Mounties and wounded 2 others, expected to be released on Tuesday

Few Canadians aren’t likely to lose much sleep if on Friday a New Brunswick judge sentences cop-killer Justin Bourque to consecutive life sentences for the first-degree murder of three Moncton RCMP officers, with no eligibility for parole for 75 years.

There’s something primal about the thought of Bourque, who gunned down the officers on June 4 as they responded to reports of the heavily-armed young man stalking Moncton’s streets, rotting in a federal prison until he’s at least 99 years old.

But is it the right thing to do?

Other than satisfying our need for delivering vengeance and retribution, maybe not. Experts say it probably doesn’t have any practical impact on delivering justice.

“The empirical evidence showing the deterrence effect of longer sentences is pretty small,” University of Western Ontario law professor Christopher Sherrin, who specializes in criminal procedure, told Yahoo Canada News.

Prosecutors want New Brunswick’s Court of Queen’ Bench to use a 2011 law allowing for consecutive parole eligibility in cases of multiple murder to stack the normal 25-year minimum eligibility back to back. Bourque would not even be able to apply until 2089, assuming he’s still breathing.

It would be the harshest sentence handed down since Canada’s last hanging in the early 1960s.

Capital punishment was abolished by Parliament in 1976. It was replaced with a life sentence for first-degree murder with no parole eligibility for at least 25 years. Second-degree murder convictions carry parole eligibility ranging from 10 to 25 years.

The 2011 Criminal Code amendment which the Conservative government dubbed the Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act (Bill C-48), was previously used to sentence Travis Baumgartner to 40 years for killing three fellow armoured car guards in an Edmonton robbery.

Bourque, 24, certainly hasn’t made it easy to feel sympathetic. After gunning down constables Dave Ross, Fabrice Gevaudan and Douglas Larche, and wounding two others, he evaded a massive manhunt for 30 hours.

Evidence at this week’s hearing includes the recording from a post-arrest interview where Bourque painted himself as an anti-establishment warrior who’d set out to kill police officers. He expressed little sympathy for the dead Mounties’ families, saying the officers were like fallen soldiers who’d chosen the wrong side in a war.

Even his defence lawyer, David Lutz, has recommended Bourque serve a minimum 50 years before being allowed to apply for parole, which would make him 74.

“Everyone seems to agree that Mr. Bourque will never get out of jail, or get out of jail when he’s an extremely advanced age,” Scott Cowan, an Ontario defence lawyer, said.

Cowan said throwing away the key seems like a fit sentence for the likes of Bourque, sex-killer Paul Bernardo, or serial killer Clifford Olson.

“But we should use it sparingly,” he said.

Sherrin said the law gives judges the discretion to impose longer prison terms via consecutive sentences and parole eligibility that they may think recognizes the especially grievous nature of the offence.

“To the extent that it alters the balance and allows judges to at least try to impose a sentence with a greater deterrent effect, I’m not sure it will have that effect,” Sherrin said.

[ Related: Justin Bourque apologizes for Moncton shootings, to be sentenced Friday ]

But sentencing can address other principles such as retribution.

“Even if it doesn’t have a deterrent effect, and it might very well not, that doesn’t necessarily mean it’s not justified.”

But the problem with upping the sentencing ante, Cowan said, is it leaves no latitude for handing out longer terms to killers even more heinous than Bourque. People only live one lifetime, so even longer sentences then become largely symbolic. Looking at U.S. courts, where killers absurdly have been sentenced to up to 2,000 years.

Cowan said stacking on parole eligibility also ignores the fact that multiple murderers are almost never released anyway. Bernardo and B.C. serial killer Robert Pickton will certainly die in prison, like Olson did.

“I would have been tempted to ask for the minimum [eligibility under the old regime], saying there’s no evidence this has ever been a failure of justice on the sentence or the parole,” Cowan said, referring to Bourque.

The premise of Bill C-48’s inflammatory name is also flawed, Cowan suggested.

“I have to come back to the point that if a person has killed more than once, the chance of ever getting paroled is very unlikely.”

The only practical effect of concurrent parole eligibility is that the families of the victims won’t have to endure a parole review 25 years down the road.

Cowan said it also dismisses the possibility that even someone like Bourque could someday be redeemed, a la The Shawshank Redemption’s Red Ellis, played by Morgan Freeman.

Bill C-48 shifted the balance in the objectives of sentencing spelled out in the Criminal Code, including denunciation of the crime, deterrence and rehabilitation.

Imposing a real-world life sentence also has unintended consequences for the prison system.

[ Related: Families of slain guards sue security company, Travis Baumgartner ]

Cowan said that during the push to abolish the death penalty, those opposed to substituting a life-means-life prison term included federal correctional officers. They knew that someone deprived of all home had nothing to lose in prison.

“Without saying someday you will get out or have a chance of getting out, there’s very little incentive to fall into line.

“Their existence would be miserable, no doubt, but it also makes it very difficult to manage.”

A parolee from a life sentence remains under supervision for life, he added.

The legal community, including the Canadian Bar Association and the Canadian Criminal Justice Association, made essentially the same points when they criticized the legislation’s introduction in 2010.

"Bill C-48 does not appear to serve any purpose beyond the need to appear ‘tough on crime," the latter group said in an appearance before the Commons Justice and Human Rights Committee.

Cowan said there’s a good chance C-48 will eventually be challenged and find its way to the Supreme Court. None of the judges on the high court now were on the bench when capital punishment was abolished and have lived with the existing sentencing regime for their entire careers. They’ll be tempted to examine this new law.