R v Hilbach: SCC to Hear Constitutional Challenge to Mandatory Minimum Sentence for Firearm Offence

This month, the Supreme Court of Canada (“SCC”) granted leave to appeal from a decision of the Alberta Court of Appeal (“ABCA”), which found that the mandatory minimum sentences for two related firearms offences violated the accused individuals’ rights under section 12 of the Canadian Charter of Rights and Freedoms [Charter]. Section 12 protects the right to be free from cruel and unusual treatment or punishment. This came a month after the Court granted leave to appeal in another constitutional challenge to a mandatory minimum sentence (R v Hills, 2020 ABCA 263). Amid the resurgence of calls for a radical shift in the Canadian criminal justice system, which disproportionately criminalizes and incarcerates Indigenous and Black peoples, could the Supreme Court’s forthcoming review of the mandatory minimum sentences regime in R v Hilbach, 2020 ABCA 332 [Hilbach] be a sign of change?

Factual Background

The case in question involves two accused, whose cases were heard together by the ABCA: Ocean Hilbach and Curtis Zwozdesky.

Mr. Hilbach is an Indigenous man of the Ermineskin Cree Nation. He is a father, had previously worked in the construction industry, and had been working with the Maskwacis Youth Initiative for youth at risk of criminal activity. The Gladue report in his case detailed a family history of residential school attendance, violence and abuse, chronic unemployment, and substance use (Hilbach, para 12). In June 2017, Mr. Hilbach, 19 years old at the time, robbed a convenience store in Edmonton “with an unloaded sawed-off rifle” and “pointed the gun at two employees demanding cash” (para 8). He pleaded guilty and was convicted under section 344(1)(a)(i) of the Criminal Code, RSC 1985, c C-46 [CC] for committing robbery while using a prohibited firearm (para 2). This particular offence carries a mandatory minimum sentence of five years (CC, s. 344(1)(a)(i)).

The sentencing judge in Mr. Hilbach’s case applied the test for assessing the suitability of mandatory minimum sentences as laid out by the SCC in R v Smith, [1987] SCR 733 [Smith], and R v Nur, 2015 SCC 15 [Nur] (para 10). In both of these cases, the SCC declared separate mandatory minimum sentences unconstitutional as violations of section 12 of the Charter. In Nur, the Court affirmed that in order to consider whether the sentence would be an infringement of an accused’s section 12 right, there are two questions: (1) “consider whether the mandatory minimum sentence would be grossly disproportionate to the appropriate sentence for the offender before the Court” and (2) “then consider whether that sentence would be grossly disproportionate to the appropriate sentence in other reasonably foreseeable applications” (para 10).

Relying on this test, the sentencing judge first assessed the fit sentence for Mr. Hilbach, considering the gravity of his offence, the personal circumstances of his case, particularly those related to the relevant Gladue factors, and the effect the mandatory minimum sentence would have on Mr. Hilbach in his situation (paras 11-12). The sentencing judge found that “any period of incarceration would have a profound impact upon him, and that a penitentiary sentence would be severe” (para 13) and that a mandatory minimum sentence of five years would be grossly disproportionate (para 14).

On the second prong of the Nur test, the sentencing judge considered the gross disproportionality of a five-year mandatory minimum sentence in other reasonably foreseeable applications (para 15). He reviewed other sentencing decisions similar to Mr. Hilbach’s fact situation, with minor differences relating to the criminal record or diminished capacity, each of which had sentences of no more than a year. In making this assessment, the judge found that in these reasonably foreseeable circumstances, the five-year mandatory minimum sentence was still grossly disproportionate (para 16). He, therefore, sentenced Mr. Hilbach to two years less a day (para 14).

The second case involved Mr. Zwozdesky, who had no prior criminal record. He had been in a serious accident that had rendered him unable to work and was living with several health issues, for which he used both prescription and illegal drugs to manage his pain (para 20). In September 2016, Mr. Zwozdesky pleaded guilty and was convicted under section 344(1)(a.1) of the CC, for using a firearm in the course of a robbery. This provision of the CC carries a mandatory minimum sentence of four years (paras 4-5). While the sentencing judge deemed that the four-year sentence was not grossly disproportionate in Mr. Zwozdesky’s particular circumstances, unlike in Mr. Hilbach’s case, she found that the mandatory minimum sentence did not pass muster at the second stage of the Nur test (paras 22-25).

At the second step, the sentencing judge turned to several cases with analogous facts, to consider the reasonably foreseeable applications. She agreed that Mr. Hilbach’s case was an appropriate reasonably foreseeable application and, in doing so, found that the offence of armed robbery “can occur in a wide variety of circumstances,” with many variables and shifting circumstances, and could be expected to catch a wide range of offenders (para 22). The mandatory minimum sentence would therefore apply to the conduct of many individuals who are far less blameworthy than Mr. Zwozdesky (para 23). Therefore, in some instances, “a downward departure would be appropriate,” in line with the specific circumstances of the accused (para 24). Ultimately, the sentencing judge in Mr. Zwozdesky’s case also found that the mandatory minimum sentence of four years breached section 12 of the Charter and was not saved under section 1 (para 25). Mr. Zwozdesky was ultimately sentenced to three years for robbery with a firearm, to be served consecutively with one year for a second robbery (para 4).

Alberta Court of Appeal

The Crown appealed the decisions of both sentencing judges on the basis that they erred in finding that the mandatory minimum sentences in question violated section 12 of the Charter, and that the resulting sentences were unfit in relation to the gravity of the offences. In Mr. Hilbach’s case, the Crown brought forth an additional ground of appeal on the basis that the sentencing judge had overemphasized his individual circumstances, “giving insufficient consideration to general deterrence and denunciation” (para 26).

The ABCA began by outlining the SCC’s jurisprudence on the threshold for an infringement of section 12 of the Charter, which requires that the sentence in question be grossly disproportionate to a fit and proper sentence, “having regard to the nature of the offence and the circumstances of the offender” (para 31; Smith at 1073; Nur, para 39]. The Court drew heavily from the SCC’s findings in Nur, emphasizing that the Nur is indicative of the particular vulnerability of the mandatory minimum sentence regime to violations of section 12 of the Charter — “by their very nature, [mandatory minimum sentences] have the potential to depart from the principle of proportionality in sentencing” (Nur, para 44).

In Mr. Hilbach’s case, the ABCA first considered whether the sentencing judge’s decision of a sentence of two years less a day was a “fit and proper sentence” for his particular actions. Here, taking into the circumstances of his crime, the relevant Gladue factors, and his specific situation, the Court found that the sentencing judge had erred in overemphasizing Gladue factors and had not placed sufficient weight on the penological goal of deterrence and denunciation (Hilbach, para 48). It, therefore, raised the fit and proper sentence to three years of imprisonment (para 50). However, turning to the question of whether the mandatory minimum sentence violated section 12, the ABCA agreed with the sentencing judge that an infringement was made out, pursuant to the two-step test in Nur.

On the first prong, the Court considered whether an additional two years of imprisonment—on top of the three years’ imprisonment found to be fit and proper by the Court, to amount to the five-year mandatory minimum sentence under the CC provision—was “so excessive as to outrage standards of decency” (para 17; Nur, para 170). In response, the Court found that a five-year mandatory minimum sentence was so high that even additional aggravating facts would not attract a sentence reaching this minimum (para 53). Therefore, a “reasonable, properly informed Canadian,” taking into account all the factors of Mr. Hilbach’s case, would find that an additional two years would outrage standards of decency and be, therefore, in violation of section 12. As a result, the Court did not need to move to the second prong of the Nur test for Mr. Hilbach’s case.

In Mr. Zwozdesky’s case, the ABCA agreed with the sentencing judge’s assessment that the four-year mandatory minimum sentence was a fit and proper sentence for his particular circumstances (Hilbach, para 37). It also agreed with the judge’s assessment on the first prong of the Nur test, stating that the four-year minimum was not grossly disproportionate for the individual offender (para 51). At the second prong of the text, however, the Court considered the other factual scenarios considered by the sentencing judge as reasonably foreseeable applications of the law (para 58). In the scenarios that the Court found were indeed reasonably foreseeable applications, the facts warranted sentences that were significantly below the four-year mandatory minimum sentence in question (para 68). As such, the ABCA concluded that the mandatory minimum violated section 12 of the Charter (para 71).

Neither violations were found to be saved under section 1 of the Charter, with no arguments posted by the Crown to that effect (para 73) and no known findings of successful section 1 justifications following findings of mandatory minimum sentences infringing section 12 (para 74).

Forthcoming SCC Decision

The SCC’s granting of leave to appeal to R v Hilbach comes just a month after its decision to hear another case in which the ABCA found that a mandatory minimum sentence for a firearm offence violated section 12 of the Charter. Given the jurisprudential backdrop of the ABCA’s decision in Hilbach, relying heavily on the findings of the SCC in Nur and Smith, these two leave decisions in short succession may be the beginning of a purposeful trend.

The SCC’s decisions in Nur and Smith were released nearly 30 years apart. Within that 30-year window were four other constitutional challenges to mandatory minimum sentences. All of these, however, were upheld as constitutional. Therefore, while those in the legal community who had advocated against the growth of mandatory minimum sentences in Canada were cautiously optimistic about the finding in Nur, the hope was slightly dwindled by this broader timeline, in which the threshold clearly remained high to prove an infringement of section 12.

It could be, however, that the forthcoming R v Hilbach decision could be a cause to rekindle this hope. This may be a particularly necessary commitment by the Court to review the system of mandatory minimum sentences against the cultural context of the resurgent Black Lives Matter movement, calls to defund and abolish the police, and demands to radically rethink the Canadian criminal justice system and its systemic over-criminalization, over-incarceration and mistreatment of racialized peoples, particularly Black and Indigenous individuals. Pertinently, the systemic racism that lays the foundation of the Canadian criminal justice system is one of the purposes of the newly proposed Bill C-22, which would repeal mandatory minimum sentences for 14 offences in the CC. If the Court is taking up its responsibility in more proactively addressing the constitutionality of mandatory minimum sentences, it would be remiss not to do so in light of these growing realities, particularly as legal researchers across the country draw clear connections between these issues and the mandatory minimum sentence regime.

On the other hand, it warrants consideration that systemic issues — such as the burgeoning prison population and the over-incarceration of certain marginalized peoples — demand systemic solutions. If the Court is to continue to apply the high threshold of a mandatory minimum sentence being “so excessive as to outrage standards of decency,” applying the somewhat stringent test under Nur, it may very well be that another 30-year gap between provision-by-provision findings of unconstitutionality is on the horizon, regardless of the Court’s granting of leaves to appeal such cases.