R v Hilbach: SCC Holds Mandatory Minimum Sentence for Firearm Offence is Constitutional
Last year, the Supreme Court of Canada (“SCC”) heard three cases in relation to the constitutionality of certain firearm offences with mandatory minimums in the Criminal Code, RSC 1985, c C-46 (the “CC”). This line of cases included: R v Hills, 2023 SCC 2 [Hills], R v Hilbach, 2023 SCC 3 [Hilbach], and R v Zwozdesky (SCC Case No 39438), together dubbed “the Albertan trilogy”.
Recently, the SCC rendered their decisions in this trilogy of cases. This article provides an in-depth analysis of the latter two cases. Specifically, the SCC heard appeals from two respondents, Mr. Ocean Hilbach and Mr. Curtis Zwozdesky, who argued that the mandatory minimum sentences for two related firearm offences violated their rights under s. 12 of the Canadian Charter of Rights and Freedoms [Charter]. S. 12 of the Charter confers upon Canadians the right to be free from any cruel and unusual treatment or punishment.
In both cases, Justice Martin, writing for the majority, determined Mr. Hilbach’s and Mr. Zwozdesky’s s. 12 rights were not violated by the mandatory minimum sentence prescribed by the CC firearm provisions. In contrast, the dissent argued that the respondents’ rights were violated by mandatory minimum sentence and that the relevant CC firearm provisions should be declared unconstitutional and of no force and effect.
Facts of the Cases and Relevant Provisions
In June 2017, Mr. Hilbach and his 13-year-old accomplice robbed a convenience store in Edmonton with an unloaded sawed-off rifle (Hilbach, para 20). Mr. Hilbach pointed the weapon at two store employees and demanded cash, while his accomplice punched one employee and kicked the other (Hilbach, para 20). They escaped with lottery tickets worth $290 before their apprehension. At the time of the offence, Mr. Hilbach was a 19 year old Indigenous man, multi-time offender, on probation, and subject to a firearms prohibition. He pleaded guilty to and was convicted of robbery using a prohibited firearm, contrary to s. 344(1)(a)(i) of the CC.
344 (1) Every person who commits robbery is guilty of an indictable offence and liable
(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
In the accompanying appeal, the respondent, Mr. Zwozdesky, played a role in two robberies of convenience stores in Alberta. During the first robbery, Mr. Zwozdesky went inside the convenience store before returning to his car and then his accomplices entered with a modified shotgun (Hilbach, para 123). In the second robbery, Mr. Zwozdesky drove the getaway vehicle after his accomplices brandished a shotgun and pepper sprayed an employee, as they fled with cash and cigarettes (Hilbach, para 123). At the time of his offence, Mr. Zwozdesky was 53 years old, a first-time offender, unemployed, and engaged in substance abuse to manage chronic pain he experienced from several motor vehicle accidents (Hilbach, para 24). After his apprehension, Mr. Zwozdesky pleaded guilty to and was convicted as a party to the offence of robbery and robbery with a firearm, contrary to s. 344(1)(a.1) (now repealed) and s. 344(1)(b) of the CC.
344 (1)(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (b) in any other case, to imprisonment for life.
Alberta Court of Queen’s Bench
At his sentencing, Mr. Hilbach raised a s. 12 Charter challenge. He argued that the mandatory minimum punishment (MMP) of five years prescribed by s. 344(1)(a)(i) was grossly disproportionate given his identity and the circumstances of his offence (Hilbach, para 20). The sentencing judge’s assessment of Mr. Hilbach’s claim took into account a pre-sentence and Gladue report, which analyzed detailed circumstances related to his upbringing and life as an Indigenous person that contributed to bringing him before the court. In particular, he noted Mr. Hilbach’s struggles with alcohol and substance addiction, having grandparents that attended residential schools, financial hardship, physical abuse, family violence, chronic unemployment, and gang involvement (Hilbach, para 21). Additionally, he had an 18 month old daughter at the time of sentencing. Thus, the sentencing judge reasoned that “while the gravity of the offence was high, and deterrence and denunciation were important, the effects of a five-year penitentiary sentence were ‘severe’, as a longer sentence increased the likelihood of ‘a life of criminal and other anti-social behavior’” (Hilbach, para 22). Instead, a fit and proportionate sentence for Mr. Hilbach was two years less a day. In other words, the five-year mandatory minimum sentence was grossly disproportionate and thereby violated s. 12 of the Charter.
Mr. Zwozdesky raised a similar s. 12 Charter challenge at his sentencing. He argued that the four-year mandatory minimum sentence imposed by s. 344(1)(a.1) was grossly disproportionate in his circumstances. The sentencing judge found Mr. Zwozdesky suffered from numerous chronic ailments and participated in robberies to support his addictions that resulted from chronic pain (Hilbach, para 24). Hence, the mandatory minimum sentence of four years was fit and proportionate for his offence. Nevertheless, the mandatory minimum imposed by CC, s. 344(1)(a.1) was deemed to violate s. 12 of the Charter because , the judge found reasonably foreseeable hypothetical scenarios in which such a sentence would be grossly disproportionate; for example, where offenders are young, Indigenous, and/or suffering from addiction issues (Hilbach, para 25).
Alberta Court of Appeal
The Crown appealed to the Alberta Court of Appeal (“ABCA”). In assessing the fit and proportionality of both sentences, the court increased Mr. Hilbach’s sentence to three years. The majority noted that the sentencing judge erred in placing significant weight on Mr. Hilbach’s Gladue factors and failed to appropriately balance the co-existing sentencing principles of deterrence and denunciation, which were aggravating factors for his offence (Hilbach, para 27). Hence, the majority concurred with the sentencing judge that Mr. Zwozdesky’s sentence was fit and proportionate, hence it was not grossly disproportionate.
The Crown appealed the ABCA’s decisions to the SCC.
The main issue in both appeals was whether the mandatory minimum sentence prescribed by s. 344(1)(a)(i) and (a.1) of the CC infringes on the respondents’ s. 12 Charter rights?
In Hills, the SCC affirmed the s. 12 infringement framework and clarified how it applies to a mandatory minimum sentence. Thus, the majority applied the clarification from Hills to guide their analysis in this case.
The test for a s. 12 Charter infringement is a two stage inquiry. At stage one, the court must determine a fit and proportionate sentence for the offence, having regard to the objectives and principles of sentencing in the CC (Hilbach, para 34). Essentially, this is equivalent to a sentencing judge determining the appropriate sentence for an offender. Then, at stage two, the court must ask whether the impugned provision requires it to impose a sentence that is grossly disproportionate when compared to the fit and proportionate sentence (Hilbach, para 34). At this stage, the framework involves three main considerations: (i) the scope and reach of the offence, (ii) the effects of the minimum mandatory sentence on the offender, and (iii) the penalty imposed under the mandatory minimum. The majority noted that either component alone or a combination thereof can lead to a finding of gross disproportionality (Hilbach, para 36).
The majority emphasized that the threshold for establishing a grossly disproportionate sentence under s. 12 is high (Hilbach, para 51). They explained that the mandatory minimum sentence must be “so excessive as to outrage standards of decency” (Hills, para 109). In this case, they determine that the scope and reach of the offence was so wide that it captured offenders who posed little risk to public safety or had low moral culpability. They determined that “the use of a firearm in the commission of a crime exacerbates its terrorizing effects, whether the firearm is real or a mere imitation” (Hilbach, para 55).
The majority found Mr. Hilbach made a conscious choice to put another person’s safety at risk and this conduct was captured by the scope of the mandatory minimum sentence. Additionally, the majority recognized that the effects of the additional years of sentence imposed by the mandatory minimum would severely impact Mr. Hilbach’s ability to rehabilitate, with a possibility of re-entrenching his gang involvement, and it is a culturally inappropriate consequence for wrongdoing by an Indigenous person. Further, the majority noted that both the sentencing judge and ABCA erred in concluding there was no valid objective behind the penalty in this case.
In this case, mandatory minimum sentences associated with the relevant provision emphasized deterrence, denunciation, and retribution over rehabilitation and other sentencing purposes. The majority gave deference to these penal objectives set by Parliament. Hence, the majority concluded that the mandatory minimum sentence prescribed by the relevant provisions does not infringe s. 12 of the Charter.
In contrast, the dissenting judges reason that the mandatory minimum sentences under both provisions casts an unconstitutionally wide net, capturing reasonably foreseeable cases for which the mandatory minimum sentence would be grossly disproportionate (Hilbach, para 118). For these cases, a mandatory minimum sentence would outrage standards of decency.
The dissent critiques that the majority elevated the Parliament’s objectives of denunciation and deterrence above other mitigating factors, including the possibility of rehabilitation for Mr. Hilbach and Parliament’s intent to ameliorate overrepresentation of Indigenous offenders in prison pursuant to s. 718.2(e) if the CC (Hilbach, para 142). Though the majority does acknowledge that a mandatory minimum sentence can severely impact Mr. Hilbach’s rehabilitation, it is simply that, an acknowledgement. In the dissent’s view, the sentencing judge did account for the background and systemic factors which brought Mr. Hilbach before the court while balancing it with Parliament’s objectives.
Furthermore, the dissent notes that the majority failed to factor in the unloaded firearm for the sentencing. “While the use of an unloaded firearm may not substantially reduce an offence’s gravity — because either weapon inspires fear and is used for coercion — the two situations are not equivalent in terms of gravity or moral culpability (Hilbach, para 144). This is an important factor to consider at the sentencing stage. Additionally, the majority failed to consider Mr. Hilbach’s motive, which was to obtain money so he could get home to his reserve. Given the oversight of important mitigating factors in this case, the dissent concluded that the relevant mandatory minimums associated with the relevant firearms provisions did breach s.12 of the Charter, were not saved under s.1, and should be declared of no force and effect.
When the SCC granted right of appeal to these cases, there was curiosity whether the SCC would seize the opportunity to reform the Canadian criminal justice sentencing regime. In light of these decisions, it seems that the majority chose to reinforce the high threshold for establishing a s. 12 Charter breach, while the dissent adopted a lenient approach. While this decision provides certainty and consistency in the law, it fails to give appropriate weight to the Gladue principles in relation to an Indigenous offender. This signals that while the courts are theoretically committed to ameliorating effects of colonialism on Indigenous offenders, it may not always translate in their decisions.