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 6 minutes.
- The Court Martial Appeal Court appeal R. v. McGregor is being released on Friday, February 17. At issue is the application of s. 8 of the Charter to a search conducted on the residence of a Canadian Armed Forces member in the United States.
- R. v. Hills, 2023 SCC 2 was released on January 27. In an 8:1 split, the SCC allowed Hills’ appeal, ruling that the four-year mandatory minimum sentence for discharging an air-powered pistol or rifle at a house is unconstitutional.
- R. v. Hilbach, 2023 SCC 3 was released on January 27. In a 7:2 split, the SCC allowed the Crown’s appeal, ruling that mandatory minimum sentences for robbery using either a prohibited or ordinary firearm do not constitute cruel and unusual punishment.
Head over to Fantasy Courts to lock in your predictions for this week’s decision or read more about the cases below.
Charter Applying on Foreign Soil
Appeal by leave from R. v. McGregor, 2020 CMAC 8
View the SCC webcast & read the factums
What Happened?
Court Martial: Cpl. McGregor, a Canadian Armed Forces member, was posted to and resided in the United States. The Canadian Forces National Investigation Service (CFNIS) suspected he committed the offences of interference and voyeurism by surreptitiously placing audio recording devices in the residence of another Canadian Armed Forces member also posted to the United States. An American police force obtained a search warrant in Virginia permitting entry into and a search of Cpl. McGregor’s residence in Virginia. Virginia law permits searching electronic devices under the authority of a warrant to search a residence. The American police entered Cpl. McGregor’s residence and invited the Canadian Forces National Investigation Service to conduct the search. Officers seized electronic devices and searched some devices during the search of the residence. They discovered evidence of the suspected offences and other offences. Electronic devices were seized, removed to Canada and searched further pursuant to warrants from the Court Martial. The Standing Court Martial dismissed a motion to exclude the evidence for breach of s. 8 of the Charter. Cpl. McGregor was convicted for sexual assault, two counts of voyeurism, possession of a device for unlawful interception, and disgraceful conduct.
At the CMAC: The Court Martial Appeal Court dismissed the appeal. It agreed with the Military Judge that, pursuant to R. v. Hape, 2007 SCC 26, the Charter did not apply to the appellant working abroad. However, even in situations where the Charter does not apply, the trial judge retains the residual discretion to exclude evidence that would render a Canadian trial unfair. It was therefore incumbent upon the Military Judge to consider the issue of trial fairness prior to admitting the impugned evidence. The CMAC concluded however that the actions and procedures followed by both the Canadian and American Officials acting in the US would have complied with the Charter had it applied to them.
What Was Argued at the SCC?
Appellant: The Appellant focused on the fact that he was required to be on foreign soil and by taking a narrow approach the Court risks denying Charter protection for 65,000 CAF members abroad. What distinguishes this case from Hape is that the CFNIS here had complete control over the search and it effectively became a Canadian investigation.
Respondent: The Crown argued that the CFNIS investigators were operating under the authority of the State of Virginia and executing a warrant of the State of Virginia. The appellant did not reside on a military base under the control of the CAF. The Charter could not and did not apply to the search. The admission of the evidence from the search caused no unfairness to the accused.
What Else Should You Know Before Making a Prediction?
The Court’s Hape decision has been criticized for its finding that the Charter cannot apply abroad without the host state’s consent. This appeal gives the Court a chance to address some of those criticisms. Based on the questions during the hearing, I suspect there will be a split with a majority upholding Hape and dismissing the appeal.
Last SCC Decisions
On January 27, 2023, the SCC released R. v. Hills, 2023 SCC 2. In an 8:1 split, the SCC allowed Hills’ appeal.
Held: The four-year mandatory minimum sentence for discharging an air-powered pistol or rifle at a house is unconstitutional.
Key Points:
- The Court affirmed and developed the framework applicable to challenges to the constitutionality of a mandatory minimum sentence under s. 12 of the Charter.
- Determining whether the mandatory minimum sentences for robbery are grossly disproportionate requires a two‑stage inquiry: (1) 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; and (2) 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.
- 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.
- The 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.
- A reasonable hypothetical scenario needs to be constructed with care and must be reasonably foreseeable.
On January 27, 2023, the SCC released R. v. Hilbach, 2023 SCC 3. In a 7:2 split, the SCC allowed the Crown’s appeal.
Held: Mandatory minimum sentences for robbery using either a prohibited or ordinary firearm do not constitute cruel and unusual punishment.
Key Points:
- The Court applied the framework described above in Hills.
- The five‑year mandatory minimum sentence while harsh and close to the line, is not grossly disproportionate.
- Considering the scope and reach of the offence, the minimum sentence is not so wide that it encompasses conduct that poses relatively little risk of harm. The gravity of the robbery offence and the culpability of offenders convicted of it is relatively high. Adding a firearm to the equation simply increases the gravity of the offence.
In both appeals, just under 50% correctly predicted the result.
-Tom Slade
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