The Supreme Court of Canada (SCOC) passed down two seemingly conflicting rulings determining the constitutionality of mandatory minimums for firearms offences.
The SCOC decisions evaluate the constitutionality of mandatory minimum sentences for firearms related charges like discharging a firearm into or at a home and robbery with a prohibited firearm. It also looked at whether or not half-decade sentences for these crimes constitute a violation of the Charter of Right and Freedom’s cruel or unusual punishment provision.
In the case R. v. Hills, the SCOC determined that a mandatory minimum sentence of 4 years for the crime of discharging a firearm into or at a house constituted a violation of the Charter of Right and Freedom’s section 12 clause that prohibits the government from imposing cruel or unusual punishments. The judgment reaffirms a lower court’s decision.
Mr. Hills, an unlicensed firearm owner, discharged a .303 Enfield bolt action rifle at a passing car and fired two shots into a neighbour’s home. In defence, Mr. Hill’s counsel proposed a hypothetical scenario in which a young person fires an airsoft gun or BB gun at home with nobody around.
“The minimum would be grossly disproportionate in a hypothetical scenario where a young person intentionally discharges an air‑powered pistol or rifle at a residence that is incapable of perforating the residence’s walls,” reads Justice Sheila L. Martin’s majority decision.
The ruling saw only one judge, Justice Suzanne Côté, dissent from the majority, arguing that a four year sentence does not constitute cruel and unusual punishment and that the majority failed to consider the dangerousness of a firearm.
“In my view, a four‑year sentence cannot be said to be “so excessive” as to “be incompatible with human dignity” or otherwise “outrage standards of decency,” writes Justice Côté.
The Justice added: “At bottom, intentionally shooting any firearm — which, by definition, must be capable of causing serious injury or death — into or at a building or other place, with knowledge of or recklessness as to the presence of occupants, is highly dangerous and culpable conduct. I reject the notion that an offence committed under s. 244.2(1)(a), properly interpreted, could be “at most, a minor form of mischief” or that the offence otherwise poses “little or no danger.””
Netherlands-based Leidan University assistant professor Yuan Yi Zhu says that the hypothetical on which the mandatory minimum was struck down was “far-fetched.”
“The Supreme Court of Canada strikes down another mandatory minimum as ‘cruel and unusual’ because, although not disproportionate in this actual case, the appellants invented a far-fetched hypothetical which DID NOT HAPPEN under which the sentence would be disproportionate,” wrote Yi Zhu on social media.
On the other hand, the SCOC in the case R. v. Hilbach ruled that the mandatory minimum sentence for the crime of robbery with a prohibited firearm remains constitutional.
In this case, Hilbach and his 13-year-old accomplice robbed a convenience store with a sawed-off rifle while Hilbach was already on probation and facing a firearms prohibition.
The Court determined that while the sentence of five years may be harsh, ultimately the punishment was not “so excessive as to outrage standards of decency.”
While the court determined that the mandatory minimum law was not unconstitutional, the Liberal-led Parliament repealed the mandatory minimum sentence provision in November 2022.
“After leave to appeal was granted, Parliament introduced and passed An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, S.C. 2022, c. 15. The legislation received royal assent on November 17, 2022, and repealed the mandatory minimum sentence prescribed in s. 344(1)(a.1). When an ordinary firearm is used to commit robbery, it no longer attracts a mandatory minimum,” reads the majority decision.
Howard Anglin, a lawyer and former deputy chief of staff to Prime Minister Stephen Harper, made mockery of the situation, writing on social media: “the Court upheld another mandatory minimum sentencing provision… that the Liberals just repealed because they said it was vulnerable to a Charter challenges, so there’s that hot mess too.”
