|Editorial Obiter: Glenn Kauth|
While he would have received a life sentence with no chance of parole for 25 years under the law as it stood until recently, the Protecting Canadians by Ending Sentence Discounts for Multiple Murderers Act allows judges to impose the parole ineligibility period consecutively. That means the court could have sentenced him to 75 years with no chance of parole, although counsel made a joint submission of 40 years.
Still, it’s worth questioning whether there’s much point to the new regime (and some lawyers doubt the legality of the sentence in Baumgartner’s case given wording in the law requiring a previous conviction). Murderers sentenced to life don’t get parole automatically anyway, so someone like Baumgartner may have served more than 25 years regardless. At the same time, courts also have to consider issues such as the totality principle, and it’s arguable that, had counsel gone down that route, sentencing Baumgartner to the maximum of 75 years with no chance of parole would have been unduly long and harsh. Baumgartner’s crime was particularly heinous, but beyond denunciation and deterrence, what would the point have been of sentencing him to 75 years with no chance of parole? What incentive would he have to behave and rehabilitate himself?
The law as it now stands, then, clearly allows for improper outcomes. But given that it’s one of those rare legislative amendments that allow for judicial discretion over whether to impose a harsher sentence, it’s not unreasonable. There’s no doubt many Canadians would consider 25 years too lenient for Baumgartner, so it’s not unfair for the law to acknowledge that while providing judges leeway in how they handle the issue.