The Supreme Court of Canada has issued a legal landscape-changing decision that will affect the sentences for some of the worst multiple murderers in the country, including southern Alberta child killers Derek Saretzky and Edward Downey.
But it remains unclear what will happen to 75-year parole ineligibility period for Calgarian Douglas Garland — who murdered a five-year-old boy and his grandparents — and others whose cases are no longer in the system.
In a unanimous decision, the country’s highest court ruled Friday that Alexandre Bissonnette, the gunman who killed six men at a Quebec City mosque in 2017, will be allowed to apply for parole after 25 years.
Sentencing rules were changed under the Harper Conservatives in 2011 with a new provision of the Criminal Code that allowed judges the discretion to hand out consecutive parole ineligibility periods to multiple murderers.
The Supreme Court has called that provision unconstitutional and said those punishments “bring the administration of justice into disrepute” and are “cruel and unusual by nature.”
Garland, Saretzky, Downey
In recent years, three high-profile triple murderers in southern Alberta were handed life sentences with no chance of parole for 50 to 75 years.
The sentence appeals for two of those killers, Derek Saretzky and Edward Downey, have been on hold pending the court’s decision in Bissonnette.
In 2016, Downey murdered Sara Baillie and her five-year-old daughter, Taliyah Marsman. He was found guilty on two counts of first-degree murder and handed a life sentence with no chance of parole for 50 years.
Saretzky, from Blairmore, Alta., was convicted of three counts of first-degree murder in the 2015 deaths of Terry Blanchette, his two-year-old daughter, Hailey Dunbar-Blanchette, and a neighbour, Hanne Meketech, 69.
Ruling ‘should mean’ appeals granted
It’s expected Downey and Saretzky’s sentences will be overturned and a 25-year parole ineligibility period imposed.
“It should mean their appeals will be granted,” said Saretzky’s lawyer, Balfour Der.
Saretzky was 22 years old when he was arrested and first placed into custody. Now, with Saretzky’s sentence appeal expected to be successful, he can ask for release at the age of 47, instead of 97.
Der says the top court’s decision is an important one that deals with fundamental Canadian values “that separate our system of justice from many in the world.”
“And that is that we never forget about or ignore the possibility of rehabilitation for offenders,” said Der.
Eligibility to apply for parole does not equal release, and a life sentence means an offender will be either in prison or on conditions for their entire lifespan.
“Life is life,” said defence lawyer Kelsey Sitar, who specializes in appeals. “Just because you’re eligible to apply does not mean you’re going to get parole, and lots and lots of people serving life sentences do not.”
Chances ‘dim’ for inactive cases
It’s less clear what will happen to offenders whose sentence appeals have already been argued.
Garland killed five-year-old Nathan O’Brien and his grandparents Alvin and Kathy Liknes in Calgary in 2014.
Garland was convicted of three counts of first-degree murder and handed a life sentence with no chance of parole for 75 years, which was upheld by the Alberta Court of Appeal.
“I think their chances are very dim because unless the case is in the system, they’re going to have a very difficult time getting any relief,” said Alias Sanders, one of the most experienced appeal lawyers in Alberta.
“At the time they were sentenced, the legislation hadn’t been declared unconstitutional.”
Finality principle vs. change in law
Sanders says that once an appeal is heard and dismissed on its merits, there’s no jurisdiction for the court of appeal to reopen it.
She points to an Alberta Court of Appeal decision called Canto, where the panel ruled that a sentence appeal could not be argued after a Supreme Court decision resulted in a relevant change in law.
“Our Court of Appeal has said the principle of finality prevails over a change in the law,” said Sanders.
There is a pathway to a ministerial review by the justice minister for those who feel they are victims of a miscarriage of justice, but Sanders says that tends to be reserved for those claiming to be wrongfully convicted.
She suspects it would be a “long shot” for a justice minister to institute a form of relief for a convicted murder.
“It’s an unconstitutional law, but is it a miscarriage of justice? I don’t know.”
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