CONSTITUTIONAL ISSUES – Canadian Charter of Rights and Freedoms – Legal Rights – Protection against cruel and unusual punishment

Law360 Canada (January 27, 2023, 3:22 PM EST) -- Appeal from the Alberta Court of Appeal confirming the sentencing judge’s declaration of invalidity of the mandatory minimum sentence of sections 344(1)(a)(i) and 344(1)(a.1) of the Criminal Code. Hilbach, an Indigenous 19‑year‑old, pleaded guilty to robbery using a prohibited firearm contrary to s. 344(1)(a)(i) of the Criminal Code. The offence carried a mandatory minimum sentence of five years’ imprisonment. Hilbach argued the mandatory minimum sentence was a grossly disproportionate sentence with regards to his circumstances and constituted cruel and unusual punishment contrary to s. 12 of the Charter. The sentencing judge agreed and imposed a sentence of two years less a day. In a separate matter, Zwozdesky pleaded guilty to robbery with a firearm contrary to s. 344(1)(a.1) of the Criminal Code. At the time, the offence carried a mandatory minimum sentence of four years’ imprisonment. Zwozdesky also challenged the provision under s. 12 of the Charter. The sentencing judge concluded that, in his case, the mandatory minimum sentence was not a grossly disproportionate sentence but was grossly disproportionate in reasonably foreseeable hypothetical scenarios. As such, the judge declared section s. 344(1)(a.1) of the Criminal Code of no force or effect. The Crown appealed both cases. The Court of Appeal dismissed the appeals on the constitutionality of the mandatory minimum sentence provisions. It added a year to Hilbach’s sentence but did not interfere with Zwozdesky’s sentence who was sentenced to three years’ imprisonment....
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