In R. v. Hills, 2023 SCC 2 and R. v. Hilbach, 2023 SCC 3, January 27, 2023, the Supreme Court of Canada considered its previous jurisprudence in relation to section 12 of the Charter, after fierce criticism of it by the Alberta Court of Appeal.

The Supreme Court concluded that there is “no reason to upset sound and settled law and adopt the new approaches advocated by some parties, interveners and judges of the Alberta Court of Appeal” (Hills, at paragraph 3).

R. v. Hills:

In Hills, the accused pleaded guilty to the offence of discharging a firearm into or at a place, knowing that or being reckless as to whether another person is present in the place, contrary to s. 244.2(1)(a) of the Criminal Code. At the time, this offence carried a mandatory minimum sentence of four years of imprisonment (see the former section 244.2(3)(b)).

The sentencing judge held that the mandatory minimum sentence violated section 12 of the Charter and imposed a period three and one-half years of incarceration. The Crown’s appeal was allowed by the Alberta Court of Appeal.  It set aside the declaration of invalidity and imposed the minimum sentence of four years’ imprisonment.  The accused appealed to the Supreme Court of Canada.

The appeal was allowed. The sentencing judge’s declaration of invalidity and sentence were affirmed.

The Supreme Court of Canada:

The Supreme Court concluded, per Martin J., that that section 244.2(3)(b) “is grossly disproportionate. Here, the evidence showed that numerous air‑powered rifles constituted ‘firearms’, including air-powered devices like paintball guns, even though they could not perforate the wall of a typical residence. It is also reasonably foreseeable that a young person could intentionally discharge such a ‘firearm’ into or at a place of residence. This provision therefore applies to an offence that captures a wide spectrum of conduct, ranging from acts that present little danger to the public to those that pose a grave risk. Its effect at the low end of the spectrum is severe. The mandatory minimum cannot be justified by deterrence and denunciation alone, and the punishment shows a complete disregard for sentencing norms. The mandatory prison term would have significant deleterious effects on a youthful offender and it would shock the conscience of Canadians to learn that an offender can receive four years of imprisonment for firing a paintball gun at a home. As a result, s. 244.2(3)(b) imposes a mandatory minimum of four years’ imprisonment for a much less grave type of activity such that it is grossly disproportionate and amounts to cruel and unusual punishment. The Crown did not argue that s. 244.2(3)(b) could be saved under s. 1 of the Charter. Accordingly, I would allow the appeal” (at paragraph 5).

The Section 12 Test for Mandatory Minimum Punishments:

The Supreme Court indicated that “[t]o assess whether a mandatory minimum violates s. 12 of the Charter, this Court has developed a two-stage inquiry that involves a contextual and comparative analysis (Bissonnette, at para. 62). A court must” (at paragraph 40):

1.     Assess what constitutes a fit and proportionate sentence having regard to the objectives and principles of sentencing in the Criminal Code (Bissonnette, at para. 63; Boudreault, at para. 46; Nur, at para. 46).

2.     Consider whether the impugned provision requires the imposition of a sentence that is grossly disproportionate, not merely excessive, to the fit and proportionate sentence (Bissonnette, at para. 63; Nur, at para. 46; Smith, at p. 1072). The constitutional bar is set high to respect Parliament’s general authority to choose penal methods that do not amount to cruel and unusual punishment.

The Court noted that this “two-part assessment may proceed on the basis of either (a) the actual offender before the court, or (b) another offender in a reasonably foreseeable case or hypothetical scenario…Where the court concludes that the term of imprisonment prescribed by the mandatory minimum sentence provision is grossly disproportionate in either case, the provision infringes s. 12 and the court must turn to consider whether that infringement can be justified under s. 1 of the Charter if arguments or evidence to that effect are raised by the Crown (at paragraphs 41 and 42).

Reasonably Foreseeable Hypotheticals:

The Supreme Court held that a “reasonable hypothetical scenario needs to be constructed with care. While it may be tempting to allow the word ‘hypothetical’ to overwhelm, it is the reasonableness of the scenario that must be underscored” (at paragraph 76). The Court indicated that the “characteristics of a reasonable hypothetical include the following” (at paragraph 76):

(i)    The hypothetical must be reasonably foreseeable;

(ii)    Reported cases may be considered in the analysis;

(iii)  The hypothetical must be reasonable in view of the range of conduct in the offence in question;

(iv)  Personal characteristics may be considered as long as they are not tailored to create remote or far-fetched examples; and

(v)    Reasonable hypotheticals are best tested through the adversarial process.

Sentencing a Reasonably Foreseeable Offender:

The Supreme Court indicated that the “general sentencing principles apply when fixing a sentence for a reasonably foreseeable offender…Fixing a sentence for reasonably foreseeable offenders requires essentially the same approach that judges take in the daily task of sentencing offenders in courtrooms across this country.  Any estimate must be circumscribed and tightly defined” (at paragraph 94).

When a Mandatory Minimum Sentence Will be Grossly Disproportionate:

The Supreme Court held that there are “three crucial components that must be assessed when considering the validity or vulnerability of mandatory minimum sentences: (1) the scope and reach of the offence; (2) the effects of the penalty on the offender; and (3) the penalty, including the balance struck by its objectives” (at paragraph 122). 

The Court concluded that “[t]he first inquiry will often centre on the scope of the offence and whether it captures a broad set of disparate conduct. An inquiry into the effects of the punishment on the individual or reasonably foreseeable offender lies at the heart of the gross disproportionality analysis. Courts should inquire into the actual effects the punishment may have on the offender: both the time period and the material conditions under which the sentence will be served. The interplay between each of the three components should drive courts’ gross disproportionality analysis” (at paragraph 147).

This Case:

In upholding the declaration of invalidity in relation to section 244.2(3)(b) of the Criminal Code, the Supreme Court concluded that section 244.2(3)(b) “is grossly disproportionate. It applies to an offence that captures a wide spectrum of conduct, ranging from acts that present little danger to the public to those that pose a grave risk. Its effect at the low end of the spectrum is as severe as the minimums in Nur and Lloyd. Denunciation and deterrence alone cannot support such a result. The punishment shows a complete disregard for sentencing norms and the mandatory prison term would have significant deleterious effects on a youthful offender. In light of these considerations, I agree with Mr. Hills that it would outrage Canadians to learn that an offender can receive four years of imprisonment for firing a paintball gun at a home” (at paragraph 169).

R. v. Hilbach and Zwozdesky:

In Hilbach and Zwozdesky, Mr. Hilbach pleaded guilty to the offence of robbery using a prohibited firearm contrary to section 344(1)(a)(i) of the Criminal Code. Section 344(1)(a)(i) prescribes a mandatory minimum sentence of five years of imprisonment for a first offence conviction of robbery committed with a restricted or prohibited firearm.  Mr. Zwozdesky pleaded guilty to the offence of robbery with a firearm, contrary to section 344(1)(a.1) of the Criminal Code. At that time, section 344(1)(a.1) imposed a mandatory minimum sentence of four years of imprisonment for a conviction of robbery where an ordinary firearm was used.

Both accused argued that the mandatory prescribed minimum penalties violated section 12 of the Charter.

In Hilbach, the sentencing judge concluded that the mandatory minimum sentence prescribed by section 344(a)(i) was grossly disproportionate and contravened section 12 of the Charter.  He imposed a period of two years less a day of imprisonment.

In Zwozdesky, the sentencing judge concluded that the mandatory minimum sentence prescribed by section 344(1)(a.i) was grossly disproportionate and contravened section 12 of the Charter. She imposed a period of three years of imprisonment.

The Alberta Court of Appeal dismissed the Crown’s appeals, but added a year to Mr. Hilbach’s sentence.

The Crown appealed to the Supreme Court of Canada.

The Supreme Court of Canada:

The appeals were allowed. The Supreme Court held that the mandatory minimum sentences set out in section 344(1)(a)(i) and the former section 344(1)(a.1) are constitutional and do not constitute cruel and unusual punishment.

Relying on its companion decision in Hill, the Supreme Court indicated that “[d]etermining whether the mandatory minimum sentences for robbery are grossly disproportionate requires a two-stage inquiry. A court must first determine a fit and proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code…The court must then ask whether the impugned provision requires it to impose a sentence that is grossly disproportionate when compared to the fit and proportionate sentence…This two-part assessment may proceed on the basis of either (1) the actual offender before the court, as it will for Mr. Hilbach, or (2) another offender in a reasonably foreseeable case, as proposed by Mr. Zwozdesky…At both stages of the analysis, courts are called upon to be scrupulous…Analytical rigour at the first stage, and fixing as specific a sentence as possible, ensures that the comparative exercise at the second stage is not distorted. In some cases, the evaluation of gross disproportionality may be more apparent where the fit sentence fixed at the first stage is not carceral in nature — for example, where it would have involved probation rather than imprisonment as was the case in Hills (para. 156). But the same principled process of comparison applies when comparing terms of imprisonment to determine if and when the length of a carceral sentence becomes grossly disproportionate” (at paragraphs 34 and 35).

Application to Indigenous Offenders:

The Supreme Court held that section 718.2(e) “applies at three different parts of the [section 12] analysis” (at paragraphs 42 to 45):

First, in conducting a s. 12 analysis, courts must consider Gladue when sentencing the individual offender. The failure to consider Gladue factors is an error that can lead to a finding that a sentence is unfit (Ipeelee, at paras. 86-87). Hence, where the offender is Indigenous, like Mr. Hilbach, a court will necessarily need to take into account Gladue principles in order to fix a sentence that is fit and proportionate at the first stage.

Second, a court may consider scenarios involving Indigenous offenders in crafting reasonably foreseeable hypotheticals (Hills, at para. 86). Given the statistics concerning the imprisonment of Indigenous persons, it is reasonably foreseeable that a hypothetical offender could be Indigenous, and the consideration of a hypothetical offender’s Indigeneity, in the context of a reasonable hypothetical scenario, aligns with the imperative statutory guidance provided by Parliament in s. 718.2(e). Indigenous people dealing with poverty, precarious housing, or disabilities and addictions appear with “staggering regularity in our provincial courts” and are therefore reasonably foreseeable (Boudreault, at para. 55).

Lastly, Indigeneity is relevant at the second stage of the s. 12 inquiry. This Court has long affirmed that the assessment of whether a mandatory minimum sentence is grossly disproportionate depends, in part, on its reflection of valid penal purposes and recognized sentencing principles…Gladue’s framework for applying s. 718.2(e) has been a core part of Canada’s sentencing principles since 1999. The methodology called for under s. 718.2(e), as well as the norms it embodies, are well-established components of our sentencing jurisprudence, as much as parity and proportionality. Section 718.2(e) is necessarily relevant in a s. 12 framework that requires courts to assess the effects of mandatory minimum sentences in light of sentencing norms and objectives. Moreover, as Boudreault illustrates, the impact of a punishment on Parliament’s objectives in s. 718.2(e) can support striking down a sentencing measure under s. 12. Accordingly, there is no reason to exclude consideration of s. 718.2(e) of the Criminal Code from either stage of the gross disproportionality framework.

The types of considerations that may be raised under s. 718.2(e) in a s. 12 challenge to a mandatory minimum sentence include, for instance, whether a probationary sentence would have otherwise been a valid alternative to incarceration as a result of Gladue principles. Or, as in Boudreault, the effects of a sentencing measure may be particularly severe when circumstances affecting Indigenous offenders are considered (para. 94). This Court has identified, for instance, that Indigenous offenders may be more adversely affected by incarceration than non-Indigenous offenders (Gladue, at para. 68). Courts may identify these concerns as grounds that support the conclusion that a minimum sentence is grossly disproportionate, keeping in mind that a breach of s. 12 remains a high threshold to meet and a punishment is not grossly disproportionate due to the presence or absence of a single sentencing principle.

R. v. Hilbach:

The Supreme Court concluded that “a mandatory minimum of five years, while harsh and close to the line, is not grossly disproportionate in Mr. Hilbach’s case. The minimum sentence at issue is not so wide that it encompasses conduct that poses relatively little risk of harm. Though Mr. Hilbach’s personal circumstances attenuate his culpability somewhat, his actions constitute a grave offence with high moral blameworthiness. While the effects of imprisonment on Mr. Hilbach, an Indigenous offender, will be severe, five years’ imprisonment in his case is not totally out of sync with sentencing norms. As a result, proportionality and parity are not compromised to the extent seen in Nur, Lloyd and Hills. Parliament’s sentencing objectives and decision to prioritize denunciation and deterrence is justified for this offence. Greater deference to Parliament’s choice to enact a minimum sentence is therefore warranted” (at paragraph 51).

R. v. Zwozdesky:

The Supreme Court concluded that the proposed hypothetical scenarios advanced “introduce a degree of reduced gravity and culpability compared to Mr. Hilbach’s case”, but “they are insufficient to establish that s. 344(1)(a.1) is grossly disproportionate. Parliament could justifiably prioritize deterrence and denunciation in these circumstances as well and, as in Mr. Hilbach’s case, they do not show four years’ imprisonment for robbery with a firearm is totally out of sync with sentencing norms” (at paragraph 84).

PRINCIPLES OF SENTENCING-PROPORTIONALITY

In addition to considering section 12 of the Charter in Hill, the Supreme Court also made a number of comments concerning the principles of sentencing, including the sentencing principle of proportionality.

Proportionality:

The Supreme Court indicated that proportionality “is a ‘central tenet’ of Canada’s sentencing regime, with roots that predate the recognition of it as the fundamental principle of sentencing in s. 718.1 of the Criminal Code…Indeed, ‘whatever weight a judge may wish to accord to the objectives [for sentencing prescribed in ss. 718 to 718.2 of the Criminal Code], the resulting sentence must respect the fundamental principle of proportionality” (at paragraph 56).

The Supreme Court pointed out that the “purpose of proportionality is founded in ‘fairness and justice’…It is to prevent unjust punishment for the “sake of the common good” (p. 547) and it serves as a limiting function to ensure that there is ‘justice for the offender’…As the ‘sine qua non of a just sanction’…, the concept expresses that the amount of punishment an offender receives must be proportionate to the gravity of the offence and the offender’s moral blameworthiness” (at paragraph  57).

Gravity of the Offence:

The Supreme Court held that “[t]he ‘gravity of the offence’ refers to the seriousness of the offence in a general sense and is reflected in the potential penalty imposed by Parliament and in any specific features of the commission of the crime…The gravity of the offence should be measured by taking into account the consequences of the offender’s actions on victims and public safety, and the physical and psychological harms that flowed from the offence. In some cases where there is bias, prejudice or hatred, the motivation of the offender may also be relevant” (at paragraph 58).

The Offender’s Moral Culpability:

The Supreme Court held that “[t]he offender’s moral culpability or degree of responsibility should be measured by gauging the essential substantive elements of the offence including the offence’s mens rea, the offender’s conduct in the commission of the offence, the offender’s motive for committing the offence, and aspects of the offender’s background that increase or decrease the offender’s individual responsibility for the crime, including the offender’s personal circumstances and mental capacity” (at paragraph 58).

In addition, the Supreme Court rejected the proposition that “the first stage is limited to consideration of a proportionate sentence solely for the offence” (at paragraph 60).  Rather, it held that it incorporates “both the gravity of the offence and the moral blameworthiness of the offender”…Sentencing is a highly individualized and discretionary endeavor…Each sentence is to be custom tailored to match the particular offence, as well as the offender…There is no ‘one size fits all’ penalty… as sentencing is ‘an inherently individualized’ and ‘profoundly subjective process’” (at paragraphs 61 and 62).

Denunciation and Deterrence:

The Supreme Court held that denunciation and deterrence, both general and specific, “are valid sentencing principles…Denunciatory sentences express a ‘collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values’ (M. (C.A.), at para. 81), and the need for denunciation is closely tied to the gravity of the offence (Ipeelee, at para. 37)…[G]eneral deterrence can support a stiffer sentence within a range of sentences” (at paragraph 139).