R. v. Hilbach, 2020 ABCA 332, 2023 SCC 3 (39438)
“After robbing a convenience store, H, an Indigenous 19‑year‑old, pleaded guilty to robbery using a prohibited firearm contrary to s. 344(1)(a)(i) of the Criminal Code. Section 344(1)(a)(i) prescribes a mandatory minimum sentence of five years’ imprisonment for a first offence conviction of robbery committed with a restricted or prohibited firearm. At sentencing, H brought a challenge under s. 12 of the Charter to the mandatory minimum sentence, arguing that it was a grossly disproportionate sentence in regards to his circumstances and constituted cruel and unusual punishment. The sentencing judge concluded that the mandatory minimum sentence was grossly disproportionate and contravened s. 12. He decided that a fit and proportionate sentence for H was two years less a day.
In an unrelated case, Z robbed a convenience store and pleaded guilty to robbery with a firearm, contrary to s. 344(1)(a.1) of the Criminal Code. At that time, s. 344(1)(a.1) imposed a mandatory minimum sentence of four years’ imprisonment for a conviction of robbery where an ordinary firearm was used. At sentencing, Z brought a challenge under s. 12 of the Charter to the mandatory minimum sentence, relying on a set of hypothetical scenarios. The sentencing judge concluded that the mandatory minimum sentence was not grossly disproportionate for Z. However, she concluded that it was grossly disproportionate in reasonably foreseeable hypothetical scenarios, and declared s. 344(1)(a.1) of no force or effect. She sentenced Z to three years’ imprisonment.
The Crown’s appeals in the cases of H and Z were heard together. The Court of Appeal dismissed the appeals on the constitutionality of the mandatory minimum sentence provisions, but added a year to H’s sentence, concluding that three years’ imprisonment was a fit and proportionate sentence. It declined to interfere with Z’s sentence. The Crown appeals the declarations of unconstitutionality of the mandatory minimum sentence provisions to the Court.”
The SCC (7:2) allowed the appeal.
Justice Martin wrote as follows (at paras. 1-7):
“This appeal questions whether the mandatory minimum sentences for robbery imposed in s. 344(1)(a)(i) and (a.1) of the Criminal Code, R.S.C. 1985, c. C‑46, constitute cruel and unusual punishment under s. 12 of the Canadian Charter of Rights and Freedoms. Specifically, Mr. Hilbach challenges the minimum of five years’ imprisonment prescribed under s. 344(1)(a)(i) where a robbery is committed with a restricted or prohibited firearm, arguing that it is a grossly disproportionate sentence in regards to his circumstances. Mr. Zwozdesky relies on a set of hypothetical scenarios to challenge the minimum of four years’ imprisonment previously imposed by s. 344(1)(a.1) where an ordinary firearm is used. The mandatory minimum sentence prescribed in s. 344(1)(a.1) was repealed after this appeal was heard. Despite this legislative change, these reasons examine the impugned mandatory minimum as previously enacted.
In the companion appeal R. v. Hills, 2023 SCC 2, this Court affirmed and developed the framework applicable to challenges to the constitutionality of a mandatory minimum sentence under s. 12 of the Charter. Whether a mandatory minimum is grossly disproportionate will depend upon the scope and reach of the offence, the effects of the penalty on the offender, and the penalty and its objectives. Under this rubric, classic features of offences that lie at either end of the spectrum can be discerned and may provide guidance. For example, some offences, while potentially very serious, can be committed in a wide range of circumstances by a wide range of offenders, including circumstances that are all but innocuous and offenders who are all but morally blameless. As such, they fall within a class of offences for which mandatory minimum sentences are particularly vulnerable to being struck down under s. 12 of the Charter as cruel and unusual punishment. This is so because the prescribed mandatory minimum punishment may, in some instances, be so severe and the effects so pronounced, that it results in a grossly disproportionate sentence to the appropriate sentence in a given case (see, e.g., Hills; R. v. Smith,  1 S.C.R. 1045; R. v. Nur, 2015 SCC 15,  1 S.C.R. 773; R. v. Lloyd, 2016 SCC 13,  1 S.C.R. 130).
By contrast, some offences that may carry with them significant mandatory minimum sentences, such as four to five years of imprisonment, are framed in such a way that they cannot be committed in innocuous circumstances by offenders who are all but morally blameless. On the contrary, they are almost always serious and committed by offenders who bear a high degree of moral blameworthiness. Offences that come within this class are narrowly defined and limited in scope, subject and mens rea. They regularly involve acts of violence, threats of violence, or conduct that is inherently dangerous, in circumstances that give rise to a real risk of death or serious bodily harm. Additionally, they require a high level of moral blameworthiness on the part of offenders, be they principals or parties, to sustain a conviction.
For this class of offences, the mandatory minimum sentence could, applying normal sentencing principles, be considered to be too high and demonstrably unfit in some cases. For these offences there is, however, little risk of imposing a sentence that would meet the test for gross disproportionality so long as the mandatory minimum sentence is not grossly disproportionate to sentences that would be appropriate, applying normal sentencing principles, for conduct that could reasonably be expected to fall within its ambit (see, e.g., R. v. Morrisey, 2000 SCC 39,  2 S.C.R. 90; R. v. Ferguson, 2008 SCC 6,  1 S.C.R. 96; R. v. McDonald (1998), 40 O.R. (3d) 641 (C.A.); R. v. Lapierre (1998), 123 C.C.C. (3d) 332 (Que. C.A.); R. v. McIvor, 2018 MBCA 29,  5 W.W.R. 139).
Of course, not all offences will fall neatly into one or the other of these two classes of offences, and they are not intended to establish any preconditions. Rather, these categories may serve as departure points when deciding whether a particular mandatory minimum sentence is or is not constitutional.
This appeal, and its companion appeal, provide classic examples of these two classes of offences. In Hills, the impugned provision imposed a mandatory minimum of four years’ imprisonment for an offence that can be committed in a wide range of circumstances by a wide range of offenders. By contrast, the present offence is narrowly defined and limited in scope, subject and mens rea. The impugned mandatory minimum sentences apply to conduct that poses a significant risk to the safety of victims and the public. The risk of violence and psychological trauma from any robbery involving a firearm is acute. Unlike the offence that was subject to the mandatory minimum sentence at issue in Hills, the spectrum of conduct captured by robbery with a firearm is not so wide that the minimums apply in circumstances that involve little danger or moral fault. Applying the framework in Hills, I conclude that neither s. 344(1)(a)(i) nor the former s. 344(1)(a.1) are grossly disproportionate. In enacting the mandatory minimum sentences here, Parliament was free to prioritize deterrence and denunciation. Accordingly, I would allow the appeal in respect of each provision.”