Justin Bourque is depicted in an artist's sketch at his sentencing hearing at Moncton Law Courts in Moncton, N.B. on Tuesday, October 28, 2014.Carol Taylor/The Canadian Press
A judge in New Brunswick is being asked to put a value on the lives of three RCMP officers gunned down last June as he grapples with a new American-style law that gives him the power to lock up the young gunman until he is 99 years old.
Justice David Smith of the Court of Queen's Bench is to deliver his judgment Friday in the sentencing of Justin Bourque, the 24-year-old Moncton man who killed the officers in a shooting rampage last spring.
His decision could set a precedent as the harshest sentence in Canadian history since the death penalty was last used in 1962 – but could also open up a constitutional challenge.
"The question you will have to answer at the end of this is, 'What is the value of a human life?'" Crown attorney Cameron Gunn told the judge during the day-and-a-half sentencing hearing this week in a Moncton courtroom.
He has asked for a sentence of 75 years before Mr. Bourque is eligible for parole – 25 years served consecutively for each murder.
In 2011, the federal Conservatives brought in Bill C-48 – the Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act – that allows for the sentences to be served consecutively.
It is not mandatory for the judge to impose the consecutive sentences. Rather, he or she has that discretion.
Mr. Bourque's lawyer, David Lutz, is asking for a 50-year sentence before parole eligibility, which other defence lawyers say is more appropriate, given Mr. Bourque's age, lack of criminal record and quick guilty plea.
"It strikes me that this section is ripe for a constitutional challenge. It's cruel and unusual [punishment]," says Michael Spratt, a partner with the Ottawa law firm Abergel Goldstein and Partners and a member of the Criminal Lawyers' Association's legislation committee.
"When you are looking at a gentleman in his 20s, [the idea] of a 75-year consecutive sentence means that we've abandoned all hope that rehabilitation is a principle or can be effected, which is troubling," Mr. Spratt says. "Our parole system is one of the features of our country that has served us very well in terms of graduated release … and the reduction of recidivism."
That Mr. Bourque expressed remorse at the hearing and pleaded guilty quickly are "incredibly mitigating" factors, he adds.
"Maximum sentences should be reserved for the worst offenders who commit the worst offences. This may be one of the worst offences but this offender is far from the worst offender," says Mr. Spratt, noting Mr. Bourque doesn't have a criminal record and has accepted responsibility.
The new law has been used just once before. Travis Baumgartner, an armoured car guard in Edmonton, was sentenced last year to 40 years without the chance of parole after he pleaded guilty to one count of first-degree murder, two counts of second-degree murder and one of attempted murder in the shooting of his fellow guards during a June, 2012, robbery.
His lawyer, Peter Royal, believes, too, that this law will face a constitutional challenge under Section 12 of the Canadian Charter of Rights and Freedoms, which protects a person from cruel and unusual punishment.
His client, however, wanted to get on with his sentence and not test it. Like Mr. Bourque, his client had no earlier criminal record. Mr. Baumgartner was 21 years old at the time and pleaded guilty, saving the financial and emotional costs of a trial. He will be eligible for parole at 61.
"These are brutally long sentences," Mr. Royal says. "You can't take away people's hope."
Toronto defence lawyer Steven Skurka calls the legislation "ill-conceived and hollow."
"The reality is that someone involved in multiple killings of police officers would be extremely unlikely to ever get out of prison before the end of their life," he says, noting that they probably would never be granted parole.
Mr. Bourque's lawyer, Mr. Lutz, acknowledged he was "left with very little to say" but noted that his client wanted to plead guilty right away and has never wavered in his assertion that what he "did was wrong, very wrong."
"He recognizes that the best possibility he has for anything in life is to be allowed to apply for parole when he is 74 years old as opposed to when he is 99 years old," Mr. Lutz told the court Tuesday.
"I don't know how many 74-year-old people are a danger to society."