B.C. court finds Criminal Code first-degree murder parole provision unconstitutional

Luciano Mariani broke into the Vancouver Island home of his former girlfriend Caroline Bernard in August 2021 and bludgeoned her with a baseball bat while she slept, leaving the “ghastly scene” for the woman’s young daughter to find, a B.C. court heard.

He had planned the murder over months, evidently intent on revenge for Bernard having an abortion after becoming pregnant early on in their relationship, which began in 2020.

Mariani pleaded guilty to first-degree murder in July 2023, but his sentencing was delayed as he filed a constitutional challenge to Canada’s Criminal Code provision that stops those convicted of the crime from applying for parole for 25 years.

The B.C. Supreme Court has now found the provision unconstitutional because it treats all offenders convicted of first-degree murder the same, regardless of the number of people they kill.

The court ruled in a decision released Wednesday that the code’s provision requiring first-degree murderers be sentenced to 25 years in prison before being eligible for parole violated Charter guarantees against cruel and unusual punishment.

The BC Prosecution Service said in a written statement that the law could still be “saved” by the Charter’s reasonable limits clause, but a hearing has not been set.

Justice David Crossin’s ruling says Canada’s so-called “faint hope” regime had been overhauled in the last three decades, but amendments to the code in 2011 prohibited offenders from “applying for a reduction in their parole ineligibility period.”

Crossin’s ruling says those changes meant that people convicted of killing one person receive the same sentence as those who kill multiple people, and the “principle of proportionality demands that offenders that have victimized one person receive a different sentence.”

The judge found the “moral culpability” and “gravity” of the offence of mass murder or serial murders is significantly different to offenders who commit “a single offence.”

The ruling outlines how Mariani planned the murder, using the internet to search for terms including “when you wanna kill your ex,” “I can’t believe you made me kill you,” “time needed to kill someone with a baseball bat,” and “what to do if you believe an eye for an eye and your child was killed.”

A week before the murder, the Calgary-born man borrowed his father’s truck and drove from Calgary to Bower, B.C.

“His goal was now plain. Purchase a bat; track down Ms. Bernard; beat her to death; and then kill himself,” the ruling says.

Mariani bought the bat in Vancouver, then a roll of hockey tape to wrap its handle, using it to bludgeon Bernard, who died en route to hospital.

He went to a park after the attack to try to take his own life, but when it didn’t work, he approached a road construction worker and said he thought he’d just killed his girlfriend, and was arrested a short time later.

Donna Turko, one of Mariani’s defence lawyers, said the court ruling is a “complicated decision,” but could potentially revive the “faint hope” regime that allowed convicted murderers to apply for parole early.

Turko said the “main issue” in the case was that the law doesn’t distinguish between offenders, whether they’re a “little old lady” or a “hired hit man.”

She said they argued it was “grossly disproportionate” for people who plan one murder versus those who plan 10 murders to get the same sentence.

Turko said before the faint hope regime was changed, offenders could make their case for parole in 15 years rather than a full 25 years into their sentence, giving them a chance to outline their positive steps toward rehabilitation.

“That’s what we were trying to bring back, and the judge said, ‘Yes, it is disproportionate,'” Turko said.

The ruling notes that the Supreme Court of Canada found it unconstitutional to impose parole ineligibility periods consecutively in the case of Quebec mosque shooter Alexandre Bissonnette, who killed six people.

He was sentenced to life in prison and the “trial judge stacked multiple parole ineligibility periods, resulting in a total parole ineligibility period of 40 years,” the ruling says.

Canada’s high court found that the part of the code that allowed “offenders convicted of multiple murders to serve parole ineligibility periods for each murder consecutively, was unconstitutional.”

“The result of Bissonnette is that individuals convicted of multiple murders will be sentenced to life without the possibility of parole for 25 years, without an ability to apply for a reduction of their parole ineligibility,” the ruling says. “This presents a stark reality in the sentencing regime for first-degree murder.”

Turko said similar challenges in other provinces came to different results, and she said it’s likely the case will be taken to the B.C. Court of Appeal, and then to the Supreme Court of Canada.

She said those convicted of first-degree murder are not sympathetic characters, but the law fails to distinguish between someone with mental health issues and no criminal history versus someone like Bissonette, a racially-motivated mass murderer.

She said her client shouldn’t face the same punishment for the same length of time as Bissonettte, with “no hope of changing that.”

This report by The Canadian Press was first published Jan. 30, 2025.

Darryl Greer, The Canadian Press