R. v. Hills, 2020 ABCA 263, 2023 SCC 2 (39338)

“Following an incident in May 2014 where the accused shot at a car and at a residential home with a hunting rifle, the accused pled guilty to a number of offences, including intentionally 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’ imprisonment, set out in s. 244.2(3)(b). The accused brought a challenge under s. 12 of the Charter, arguing that the mandatory minimum sentence was grossly disproportionate and therefore constituted cruel and unusual punishment. His challenge relied on a hypothetical scenario, where a young person intentionally discharges an air‑powered pistol or rifle at a residence that is incapable of perforating the residence’s walls.

The sentencing judge found that s. 244.2(3)(b) was grossly disproportionate in the hypothetical scenario relied on by the accused and concluded the infringement of s. 12 could not be justified under s. 1 of the Charter. He sentenced the accused to three and a half years of incarceration. The Crown appealed both the finding that s. 244.2(3)(b) infringed s. 12 of the Charter and the accused’s sentence. The Court of Appeal allowed the appeal on both grounds. It set aside the sentencing judge’s declaration of invalidity of the mandatory minimum sentence and imposed the minimum sentence of four years’ imprisonment.”

The SCC (8:1) allowed the appeal.

Justice Martin wrote as follows (at paras. 1-5):

“This appeal, and the companion appeal of R. v. Hilbach, 2023 SCC 3, provide the Court with an opportunity to clarify the legal principles that govern when the constitutionality of a mandatory minimum sentencing provision is challenged under s. 12 of the Canadian Charter of Rights and Freedoms. At issue in both appeals are three different offences under the Criminal Code, R.S.C. 1985, c. C-46, which involve the use of a firearm. In this appeal, the appellant, Jesse Dallas Hills, was convicted of discharging a firearm into or at a home under s. 244.2(1)(a). Mr. Hills challenges the four‑year mandatory minimum sentence previously imposed by s. 244.2(3)(b) for this offence. The mandatory minimum sentence prescribed in s. 244.2(3)(b) was repealed after this appeal was heard. Despite this legislative change, the reasons examine the impugned mandatory minimum as previously enacted. In the companion case, Ocean William Storm Hilbach and Curtis Zwozdesky were convicted of armed robbery. They challenge, respectively, the five‑year mandatory minimum for robbery with a restricted or prohibited firearm under s. 344(1)(a)(i) and the former four‑year mandatory minimum for robbery with a firearm under s. 344(1)(a.1). The mandatory minimum sentence set out in s. 344(1)(a.1) was also repealed after the Hilbach appeal was heard.

In both appeals, the offenders argue that the prescribed mandatory minimum sentences constitute cruel and unusual punishment contrary to s. 12 of the Charter. They claim that these automatic sentences, which impose a stated minimum term of imprisonment, are grossly disproportionate to what would be a fit and appropriate punishment and therefore offend the Charter. Mr. Hills and Mr. Zwozdesky admit that the minimum sentences were warranted based on the facts of their cases, but nevertheless challenge the law based on how the sentencing provisions could reasonably apply to others for whom they claim the minimum penalties imposed would be constitutionally infirm punishments.

This is not the first time the constitutionality of mandatory minimum sentences has been before this Court. While these appeals reveal some of the challenges faced when determining whether a punishment is grossly disproportionate, 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. The principles for assessing whether a punishment is cruel and unusual are well established and were recently and unanimously affirmed in R. v. Bissonnette, 2022 SCC 23. In this decision, the Court seeks to provide further guidance, direction and clarity. These reasons offer a framework in response to submissions in both this appeal and in Hilbach. As such, I will not distinguish between submissions from counsel in both cases addressing suggested changes to the s. 12 framework.

In this appeal, I first set out the generally applicable framework and foundational principles for the s. 12 analysis and then apply them to Mr. Hills and, in Hilbach, to Mr. Hilbach and Mr. Zwozdesky. Whether a mandatory minimum is grossly disproportionate will depend upon the scope and reach of the offence, the effects of the punishment on the offender, and the penalty and its objectives. In respect of Mr. Hills, I conclude that s. 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. I address s. 344(1)(a)(i) and (a.1) in the companion case of Hilbach.”