Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

Hi, here’s what you need to know about the Supreme Court of Canada this week in 8 minutes.

  1. On Friday, January 27, 2023, the SCC is releasing its decision in R.v. Hills and R. v. Hilbach. At issue are mandatory minimum sentences for firearm-related offences.
  2. On December 9, 2022, the SCC released its decision in R. v. Beaver, 2022 SCC 54. The Court in a 5:4 split dismissed the appeals, ruling that the confessions made by the appellants were admissible as evidence at their trial for the murder of their landlord.

Head over to Fantasy Courts to lock in your predictions for this week’s decisions or read more about the cases below.

Mandatory Minimum Sentences for Firearm Offences

Appeal by leave from R v Hills, 2020 ABCA 263

View the SCC webcast & read the factums

What Happened?

Before trial: The appellant, Jesse Dallas Hills, pled guilty to four charges from an incident in May 2014 where he swung a baseball bat and fired a shot with his rifle at an occupied vehicle, smashed the window of a parked vehicle and shot a few rounds into an occupied family residence. One of the charges was the intentional discharging of a firearm into or at a place, knowing that or being reckless as to whether another person is present in the place under s. 244.2(1)(a) of the Criminal Code, which carries a minimum four‑year imprisonment sentence. Mr. Hills argued that the minimum sentence violated his constitutional right to not be subjected to any cruel and unusual treatment or punishment by virtue of s. 12 of the Charter.

At trial: At trial, Mr. Hills presented a scenario that he claimed could reasonably occur and for which the four‑year mandatory minimum sentence would constitute cruel and unusual punishment. Taking into account this hypothetical case proposed by Mr. Hills where a young person intentionally fires an air‑powered pistol or rifle at a residence, the trial judge found that despite the minimum four‑year sentence not resulting in a grossly disproportionate sentence for Mr. Hills, it is reasonably foreseeable that it would result in a grossly disproportionate sentence for other potential offenders. The trial judge therefore found that the mandatory minimum sentence contravened s. 12 of the Charter and could not be saved by s. 1. As a result, he declared s. 244.2(3)(b) of the Criminal Code to be of no force and effect. Mr. Hills was sentenced to imprisonment for a term of three and a half years.

At the Court of Appeal: The Alberta Court of Appeal overturned the trial judge’s finding of unconstitutionality and set aside the declaration of invalidity in a judgment containing three separate concurring reasons. Justices O’Ferrall and Wakeling were critical of the expansive usage of hypotheticals by the Supreme Court of Canada. The appeal against the sentence for discharging a firearm was allowed and the sentence was increased to four years imprisonment.

What Was Argued at the SCC?

Appellant: The appellant argued that the Supreme Court’s s. 12 jurisprudence is binding and ought to have been followed by the Court of Appeal. The Supreme Court’s decision in R. v. Nur, 2015 SCC 15provides a complete answer to the issues raised by the Court of Appeal. There is no rational connection between a four-year mandatory minimum and offences that involve non-conventional firearms such as BB guns, paintball guns or airsoft guns. Also, the Court of Appeal failed to consider the appellant’s Métis status.

Respondent: The Crown argued for deference to Parliament, which is responding to a particular crime of violence with a serious sentence. The mandatory minimum punishment is not cruel and unusual to this particular appellant. The hypothetical used focused too much on whether some non-conventional firearms could go through the wall of a building and ignored the risks and dangers to those potentially around the building.

Crown appeal by leave from R v Hilbach, 2020 ABCA 332

View the SCC webcast & read the factums

What Happened?

At trial: Both respondents pled guilty to charges stemming from armed robberies of convenience stores. Mr. Hilbach was sentenced to imprisonment of two years less a day for robbery while using a prohibited firearm, contrary to s. 344(1)(a)(i), and having in his possession that prohibited firearm while banned by reason of an order pursuant to s. 109, contrary to s. 117.01(1), on each count to be served concurrently. Mr. Zwozdesky was sentenced to three years’ imprisonment for robbery with a firearm and one year imprisonment for the second robbery, to be served consecutively.

Both respondents brought a constitutional challenge to the respective mandatory minimum sentences alleging that the sentences breached section 12 of the Charter. Each sentencing judge declared the relevant mandatory minimum sentence to be unconstitutional and of no force and effect pursuant to section 52 of the Constitution Act, 1982.

At the Court of Appeal: The majority of the Alberta Court of Appeal upheld the lower courts’ declarations of unconstitutionality. The appeal with respect to Mr. Zwozdesky was dismissed. The appeal with respect to Mr. Hilbach was allowed in part, and a sentence of three and one-half years was substituted. Justice Wakeling dissented and would have set aside the respective declarations of unconstitutionality.

What Was Argued at the SCC?

Appellant: The Crown argued that the mandatory minimums are justified given that the “offences have a far-reaching impact on public safety in the communities where they occur, and the offenders who commit them always bear a high degree of responsibility”. It further argued that this case differed from nur because robbery with a firearm is not a possession offence, and there is no “licensing end of the spectrum”. The elements of the offences ensure that only those who commit serious crime and endanger public safety are subjected to the mandatory minimum sentences in issue.

Respondent: The respondent noted that he did not rely on any hypotheticals, but instead relied on his own circumstances to demonstrate disproportionality. The finding that the sentence was disproportionate took into account the offender’s prior criminal record, and the foreseeable impact on the victims and the community. The Court of Appeal did not change the law or fail to follow existing jurisprudence. Instead, the Crown’s argument “simply amounts to saying that this offender should have received a higher sentence.”

What Else Should You Know Before Making a Prediction?

Although only from 2015, Nur is starting to feel very old – only Justice Karakatsanis and Chief Justice Wagner remain on the Court. Justice Karakatsanis concurred with then Chief Justice McLachlin who wrote the majority reasons, and Wagner J. found himself in dissent concurring with Justice Moldaver. I could see the Chief Justice pulling together a majority in Hills and refining the approach to using hypotheticals. However, in Hilbach, which doesn’t involve hypotheticals, I could see deference winning the day. With that all being said, Bill C-5 received Royal Assent in November which effectively repeals mandatory minimum penalties anyways making this potentially all moot.

Last SCC Decisions

On December 9, 2022, the SCC released its decision in R. v. Beaver, 2022 SCC 54.

Held: Evidence will not be “obtained in a manner” that breached the Charter when the police made a “fresh start” from an earlier breach by severing any temporal, contextual, or causal connection between the breach and the evidence obtained or by rendering any such connection remote or tenuous.

Key Points:

  • The common law confessions rule provides that a confession to a person in authority is presumptively inadmissible, unless the Crown proves beyond a reasonable doubt that it was voluntary.
  • When assessing the voluntariness of a confession, the trial judge must determine, based on the whole context of the case, whether the statements made by an accused were reliable and whether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to a person in authority.
  • The police may make a “fresh start” by later complying with the Charter, although subsequent compliance does not result in a “fresh start” in every case.
  • Most users correctly predicted this decision, with just over 80% getting the overall result right.

-Tom Slade

Thanks for reading. If you liked today’s brief, we’d love for you to share it with a friend or you can sign up to receive it as an email: https://mailchi.mp/37b20ffd0198/fantasycourts