‘Reasonable hypotheticals’ here to stay, SCC rules in revised framework for Charter review of MMPs

By Cristin Schmitz

Law360 Canada (January 27, 2023, 5:37 PM EST) -- The Supreme Court of Canada has devised a new three‑part test for assessing “gross disproportionality” at the second stage of the legal framework for analyzing s. 12 Charter challenges to mandatory minimum penalties (MMPs).

In companion appeals from Alberta, a majority of the court ruled unconstitutional Jan. 27 the Criminal Code’s recently repealed four-year MMP for discharging an air-powered pistol or rifle at a house, but upheld the recently repealed four-year MMP for robbery with a firearm, and also upheld the existing five-year MMP for robbery with a restricted or prohibited firearm.

Writing for the majority in both cases, in the 8-1 lead judgment Justice Sheilah Martin declared unconstitutional, as cruel and unusual punishment in violation of s. 12 of the Charter — with immediate effect and retroactive application — the four-year mandatory minimum sentence for discharging a firearm into, or at place, knowing that, or being reckless as to, whether another person is present in place, in former s. 244.2(3)(b) of the Criminal Code (repealed Nov. 17, 2022, as part of the Liberal government’s Bill C-5 abolition of more than a dozen MMPs): R. v. Hills, 2023 SCC 2.

Justice Sheilah Martin

Justice Sheilah Martin

Justice Martin ruled 7-2 in the second appeal that the four-year and five-year mandatory minimum sentences, respectively for robbery with a firearm, contrary to section 344(1)(a.1) of the Criminal Code (also repealed by Bill C-5), and the existing section 344(1)(a)(i) (robbery with a restricted or prohibited firearm), do not violate the Charter’s s. 12 ban of cruel and unusual punishment: R. v. Hilbach, 2023 SCC 3.

Justice Martin summed up in Hilbach why the MMP in Hills, i.e. for discharging a firearm at a house, was grossly disproportionate in violation of Charter s. 12, while in Hilbach the two impugned MMPs for robberies involving guns were not grossly disproportionate.

“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,” she explained.

By contrast, the robbery with firearm offences are “narrowly defined and limited in scope, subject and mens rea,” she wrote. The impugned MMPs for the firearms offences involving robberies “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,” Justice Martin said. “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,” she concluded. “In enacting the mandatory minimum sentences here, Parliament was free to prioritize deterrence and denunciation.”

Counsel told The Lawyer’s Daily Justice Martin’s reasons for judgment elucidate and develop the Supreme Court’s guidance on how courts and counsel should assess whether a challenged MMP is unconstitutional.

Heather Ferg, McKay Ferg LLP

Heather Ferg, McKay Ferg LLP

“This case affirms and fortifies the court’s existing s. 12 jurisprudence,” said Heather Ferg of Calgary’s McKay Ferg LLP, co-counsel with Brett Code for Jesse Hills, the successful appellant.

“We are relieved see a strong articulation of the primacy of human dignity in the majority’s analysis,” Ferg said. “The decision clarifies key aspects of the s. 12 test and ensures we have a meaningful way to evaluate degrading and dehumanizing punishments before they occur. The court also sent a strong reminder that stability in the law, and adherence to precedent, are important considerations for lower courts.”

Nader Hasan of Toronto’s Stockwoods LLP, co-counsel with Ryann Atkins for the Canadian Civil Liberties Association — which intervened to oppose arguments by some members of the Alberta Court of Appeal below to reduce proportionality from the fundamental principle of sentencing to merely a factor among many, that can be sacrificed at the altar of denunciation and deterrence — said the “Supreme Court forcefully rejected calls to water down its approach to evaluating the constitutionality of mandatory minimum sentences.”

“The Supreme Court’s Hills decision is an encouraging sign that our nation’s highest court is going to continue to subject mandatory minimum sentences to strict constitutional scrutiny,” Hasan said.“Today’s decisions are a full-throated reaffirmation of the Supreme Court’s 2015 decision in Nur, a decision that paved the way for a series of successful constitutional challenges to mandatory minimum sentences.”

(According to the federal Department of Justice, as of Dec. 3, 2021, the DOJ was tracking 217 Charter challenges to MMPs, including 24 involving firearms offences. MMP challenges amounted to 34 per cent of all the challenges to the Criminal Code tracked by the department. Over the past decade, 48 per cent of those constitutional challenges to MMPs for firearms offences and 69 per cent of those challenges to MMPs for drug offences succeeded.)

Emily MacKinnon of Vancouver’s Osler, Hoskin & Harcourt LLP, who with Amanda Manasterski represented the intervener British Columbia Civil Liberties Association (BCCLA), noted the court expressly rejected calls from two members of the Alberta Court of Appeal below for the Supreme Court to abandon its use of “reasonable hypotheticals” in assessing constitutional challenges to MMPs.

“The court agreed with the BCCLA that reasonable hypotheticals are a crucial part of an analysis under s. 12 of the Charter,” MacKinnon said. “The court also agreed with the BCCLA that the circumstances of Indigenous offenders must be taken into account when considering the constitutionality of a sentence.”

MacKinnon also highlighted Justice Martin’s “important comments underscoring the severity of imprisonment, accepting the finding from the BCCLA’s report on mandatory minimum sentencing that incarceration has a serious ‘ripple effect’ on every aspect of the offender’s life and community. These comments will guide judges in future, encouraging them to give mandatory minimum sentences a long hard look before allowing them to pass constitutional muster.”

Janani Shanmuganathan of Toronto’s Goddard & Shanmuganathan LLP, who with Laura Metcalfe represented the intervener Criminal Lawyers’ Association, said the decision “doesn’t really create anything new,” but to an extent repackages leading s. 12 jurisprudence such as R. v. Nur, 2015 SCC 15 and R. v. Lloyd, 2016 SCC 13.

Janani Shanmuganathan, Goddard & Shanmuganathan LLP

Janani Shanmuganathan, Goddard & Shanmuganathan LLP

“They’re essentially saying that the new framework now looks at three things when you're assessing whether a mandatory minimum is constitutional or not, so the first is the scope and the reach of the offense. The second is the effects of the penalty on the offender. And the third is the penalty, including the balance struck by its objectives,” she said.

Shanmuganathan suggested a new aspect is the court’s emphasis that an assessment of an MMP’s impact is not just about the length of imprisonment, “but about ... this particular offender, what is the impact going to be? So, for example, it allows a trial judge to now consider: ‘Well, [the MMP] is three years ... and maybe for another offender it would not be grossly disproportionate, but for this particular offender who has addictions issues and may not receive adequate supports in the prison system — for this particular offender with these particular traits — it could be a grossly disproportionate sentence.’ So I think that's a kernel that's new ... or at least it's one that hasn't necessarily been considered in the s. 12 mandatory minimum context.”

Shanmuganathan added that the top court has “firmly rejected ... with one unified voice” calls to do away with reasonable hypotheticals. It has affirmed that “reasonable hypotheticals are an important tool, and reasonable hypotheticals are a tool that's here to stay when you're assessing mandatory minimum sentences and their constitutionality.”

Eric Gottardi of Vancouver’s Peck and Company, who with Chantalle van Wiltenburg represented the intervener Canadian Bar Association, called Hills “a welcome reaffirmation of the court’s landmark decisions in Nur and Lloyd, and a stinging rejection of the [Alberta Court of Appeal] decision below as meritless and unprincipled.”

He said the Hills ruling: maintains the importance of reasonable hypotheticals at stage one of the Nur/Lloyd analysis; upholds the broader approach to including personal details in the reasonable hypotheticals from Nur/Lloyd, including Indigeneity; maintains and expands the “scope and reach of the offence” analysis for gross disproportionality from Lloyd (at paras. 3, 24, 27, 35-36) — a concept advanced by the CBA in Lloyd.”

Gottardi said the court also re-emphasized the importance of rehabilitation in analyzing the constitutionality of the MMP, and gave detailed guidance as to its three-part analysis for “gross disproportionality.”

However, the court’s ruling in Hilbach is “disappointing in its application of those principles,” Gottardi suggested.

In his view, although the court emphasized in Hills the importance of rehabilitation, Gladue factors and Indigeneity, “those points of emphasis seem absent in the result in Hilbach, where an Indigenous man who was left stranded in Edmonton and who robbed a convenience store for $400 worth of lottery tickets will be allowed to spend four years in a penitentiary, when a sentence of two and a half years would have been a fit sentence.”

Gottardi added that if the analysis of what is “cruel and unusual” is supposed to reflect changing societal norms, then in an age of largely as-yet unrealized reconciliation and an epidemic of Indigenous over-representation in prisons, “it is difficult to accept ... imprisoning an Indigenous offender at almost double the rate of what he would otherwise ‘deserve’ under our system of criminal justice. Surely [that] has the potential to shock the conscience of the average Canadian and, if it doesn’t, then it should.”

Alberta Crown counsel in the two appeals before the court declined comment.

In Hills, the appellant pleaded guilty to discharging a loaded hunting rifle for big game into a house occupied by a family with children in 2014, contrary to section 244.2(1)(a) of the Criminal Code. He was highly intoxicated on prescription medication and alcohol. Before the sentencing judge, his counsel successfully attacked the then-applicable four-year MMP on the basis it would be a grossly disproportionate punishment as applied in a reasonable hypothetical involving a young person who intentionally discharges an air-powered pistol or rifle at a residence that is incapable of perforating the walls of a home. Hills was sentenced to three and a half years. The Court of Appeal reversed, upholding the impugned MMP and sentenced Hills to four years in prison.

In allowing Hills’s appeal 8-1 (Justice Suzanne Côté dissenting), Justice Martin said the hypothetical scenario raised by the accused is reasonably foreseeable as is the scenario of a young person firing a BB gun or a paintball gun at a house as part of a game, to pass time, or for mischief. After conducting the applicable two-stage inquiry for determining whether an MMP violates s. 12, Justice Martin held “a four‑year custodial sentence is so excessive as to be significantly out of sync with sentencing norms and goes far beyond what is necessary for Parliament to achieve its sentencing goals for this offence.”

“Denunciation and deterrence cannot support the minimum punishment, nor does the minimum show any respect for the principles of parity and proportionality,” she said. “It would outrage Canadians to learn that an offender can receive four years of imprisonment for firing a paintball gun at a home. As the Crown does not advance any argument or evidence to demonstrate that the punishment may be justified under s. 1, there is no need to address this issue.”

In her lone dissent, Justice Côté argued the majority’s hypothetical scenario “is unmoored from judicial experience and common sense. It has not resulted in a single conviction under s.244.2(1)(a) — nor would it, on a proper interpretation of the offence. Section 244.2(1)(a) only captures intentional shootings which are highly blameworthy and antithetical to the peace of the community,” Justice Côté said. “A four‑year minimum sentence is not so excessive as to outrage standards of decency or incompatible with human dignity to rise to the level of cruel and unusual punishment under s. 12.”

Jointly dissenting in Hilbach, an appeal involving two men who separately participated in armed robberies of convenience stores in Alberta, Justices Andromache Karakatsanis and Mahmud Jamal argued that ss. 344(1)(a)(i) and 344(1)(a.1) of the Code unjustifiably violate the constitutional prohibition against cruel and unusual punishment. The five-year MMP applicable to respondent Ocean Hilbach would shock the conscience of Canadians, they said. “It shocks the conscience to send a youthful Indigenous offender to prison for five years when, as the sentencing judge determined, doing so would harm both the offender and society. Moreover, a sentence that is double or nearly double a fit sentence is grossly disproportionate in violation of s. 12 of the Charter,” they wrote. “A five‑year sentence does not accord with a purposive reading of s. 12, nor is it alive to the profound consequences of any incarceration on an offender’s life and liberty, let alone the secondary impacts on the offender and the offender’s family. Even if a fit sentence for Hilbach were three years in jail, a sentence of five years would still be grossly disproportionate.”

The since-repealed four‑year mandatory minimum sentence under s.344(1)(a.1) of the Code is also grossly disproportionate, Justices Karakatsanis and Jamal held. “It is unconstitutionally broad and foreseeably applies to a wide range of situations, including those where the offender may be young, substance dependent, assisting the principal offender, or using a firearm like a BB gun. Applying that mandatory minimum in some of these situations would be so excessive as to outrage standards of decency.”

In Hills, Justice Martin said the top court’s s. 12 jurisprudence indicates that judges must engage in a two‑stage inquiry to assess whether an impugned MMP passes constitutional muster: (1) assess what constitutes a fit and proportionate sentence having regard to the objectives and principles of sentencing; and (2) consider whether the impugned provision requires the imposition of a sentence that is “grossly disproportionate,” not merely excessive, to the fit and proportionate sentence. This 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 or hypothetical scenario. Where the court concludes that an MMP is grossly disproportionate in either case, the provision infringes s. 12 and the court must then consider whether that infringement can be upheld under s. 1 of the Charter as reasonable and demonstrably justified in a free and democratic society (i.e. if justificatory arguments or evidence are presented by the Crown.)

In Hills, Justice Martin went on to set out a new three‑part test for “gross disproportionality” at the second stage of the analytical framework for assessing the constitutionality of MMPs.

“Three crucial components must be assessed,” Justice Martin explained. “The first component is the scope and reach of the offence. The case law reveals that a mandatory minimum sentence is more exposed to challenge where it captures disparate conduct of widely varying gravity and degrees of offender culpability. The wider the scope of the offence, the more likely there is a circumstance where the mandatory minimum will impose a lengthy term of imprisonment on conduct that involves lesser risk to the public and little moral fault. Acourt must assess to what extent the offence’s mens rea and actus reus capture a range of conduct as well as the degree of variation in the offence’s gravity and the offender’s culpability. It may consider whether the offence necessarily involves harm to a person or simply the risk of harm, whether there are ways of committing the offence that pose relatively little danger, and to what degree the offence’s mens rea requires an elevated degree of culpability of the offender.”

Justice Martin said the second component in the gross disproportionality analysis is “the effects of the penalty on the offender.”

She said courts “must aim to identify the precise harm associated with the punishment. This calls for an inquiry into the effects that the impugned punishment may have on the actual or reasonably foreseeable offender both generally and based on their specific characteristics and qualities.”

She stipulated that the principle of proportionality implies that where the impact of imprisonment is greater on a particular offender, a reduction in sentence may be appropriate. “For this reason, courts have reduced sentences to reflect the comparatively harsher experience of imprisonment for certain offenders, like offenders in law enforcement, for those suffering disabilities, or for those whose experience of prison is harsher due to systemic racism,” she said. “A court should also consider the additional period of imprisonment imposed by the mandatory minimum, given the profound impact of imprisonment.”

Justice Martin said the last component of the three-part test focuses on the penalty and its objectives. “When assessing gross disproportion, courts assess the severity of the punishment mandated by Parliament to determine whether and to what extent the minimum sentence goes beyond what is necessary to achieve Parliament’s sentencing objectives relevant to the offence while having regard to the legitimate purposes of punishment and the adequacy of possible alternatives,” Justice Martin said. “While rehabilitation has no standalone constitutional status, there is a strong connection between the objective of rehabilitation and human dignity,” she noted. “In order to respect s. 12, punishment or sentencing must take rehabilitation into account. In addition, courts should assess whether the length of imprisonment legislated is too excessive in light of other potentially adequate alternatives. There is no mathematical formula to determine the specific number of years that would make a sentence in excess of a legitimate penal aim. The analysis, in all cases, must be contextual and there is no hard number above or below which a sentence becomes grossly disproportionate. A mandatory minimum sentence, however, will be constitutionally suspect and require careful scrutiny when it provides no discretion to impose a sentence other than imprisonment in circumstances where there should not be imprisonment, given the gravity of the offence and the offender’s culpability.”

Justice Martin said that an MMP that adds to an offender’s prison sentence “may have a significant effect, given the profound consequences of incarceration on an offender’s life and liberty. Courts should evaluate the punishment in light of the principles of parity and proportionality.”

Photos of Sheilah Martin by SCC Collection

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