by Victoria Wright, J.D. Candidate 2025
Staff Writer, Seven/Fifty
June 12, 2024
During former Prime Minister Stephen Harper’s tenure (2006-2015), the federal government introduced mandatory minimum sentences for individuals convicted of certain specific crimes. At first glance, mandatory minimum sentences seem to enhance the fairness of the criminal justice system by establishing predictability in the sentences that offenders receive and consequently, deterring criminal activities. However, mandatory minimums are widely critiqued for inflating sentences for all offenders, failing to deter criminal activities, and disproportionately impacting racialized and marginalized offenders.
Beginning in 2015, the Supreme Court of Canada (“SCC”) released a series of decisions in which several Harper-era mandatory minimums were struck down for violating an individual’s right not to be subjected to cruel and unusual punishment under section 12 of the Canadian Charter of Rights and Freedoms (“Charter”). Recent examples of this trend include:
R v Nur (2015): The SCC struck down a mandatory minimum of three years imprisonment for possession of a loaded prohibited firearm under section 95(1) of the Criminal Code;[1]
R v Lloyd (2016): The SCC struck down a mandatory minimum of one year imprisonment for possession of drugs for the purpose of trafficking under section 5(3)(a)(i)(D) of the Controlled Drug and Substances Act [“CDSA”];[2] and
R v Boudreault (2018): The SCC struck down a mandatory requirement for all offenders of a Criminal Code or CDSA offence to pay a victim surcharge under section 737 of the Criminal Code.[3]
In 2023, the SCC released two more decisions — R v Hills and R v Hilbach (considered with R v Zwozdesky) — outlining if and when mandatory minimum sentences amount to cruel and unusual punishment under the Charter.[4]
Facts — R v Hills
Mr. Hills was convicted of discharging a firearm into or at a home under section 244.2(1)(a) of the Criminal Code after swinging a baseball bat and firing a shot at a passing car, smashing the window of an unoccupied parked car, and firing several rounds through the living room window of an occupied residential home. At the time of the incident, he was intoxicated by a large quantity of prescription medication and alcohol.[5] Mr. Hills entered guilty pleas to four offences, including section 244.2(1), and brought a Charter challenge on the basis that the mandatory minimum sentence of four years for this offence violated his section 12 rights.[6]
Facts — R v Hilbach
Mr. Hilbach was convicted of armed robbery with a restricted or prohibited firearm under section 344(1)(a)(i) of the Criminal Code after pointing an unloaded sawed-off rifle at two convenience store employees and demanding cash with an accomplice.[7] Mr. Hilbach entered guilty pleas to the offence and brought a Charter challenge on the basis that the mandatory minimum sentence of five years for this offence violated his section 12 rights.[8]
Mr. Hilbach’s case was considered alongside Mr. Zwozdesky’s. Mr. Zwozdesky was convicted of armed robbery with a firearm under section 344(1)(a.1) of the Criminal Code after driving his accomplices to and from a convenience store where the accomplices pointed a loaded sawed-off rifle at a convenience store employee, fired one round into a shelf, and demanded cash.[9] Like Mr. Hilbach, Mr. Zwozdesky pled guilty to the offence and brought a Charter challenge on the basis that the mandatory minimum of four years violated his section 12 rights.[10]
Framework for Challenging a Mandatory Minimum Sentence Under Section 12 of the Charter
In both Hills and Hilbach, the SCC clarified and applied the two-step framework for assessing whether a mandatory minimum sentence violates section 12 of the Charter.
Step 1: Fit and Proportionate Sentence
The first question a court must address is, “what specifically is the fit sentence for this individual offender?”[11] Though sentencing “is not an exact science” and “there is often more than one correct sentencing response to a crime,” judges must take on the heavy burden of carefully crafting sentences that fit specific offences and offenders.[12]
At this stage, a court may consider the circumstances of reasonably foreseeable offenders not before them through the use of “reasonable hypothetical scenarios that raise realistic issues about the scope of the mandatory minimum and its application to everyone.”[13] However, reasonable hypotheticals must be “constructed with care” with consideration of the following characteristics: (i) the hypothetical must be reasonably foreseeable; (ii) reported cases may be considered in the analysis; (iii) the hypothetical must be reasonable in view of the range of conduct in the offence in question; (iv) personal characteristics may be considered as long as they are not tailored to create remote or far-fetched examples; and (v) reasonable hypotheticals are best tested through the adversarial processes.[14]
Step 2: Gross Disproportionality
At the second step, courts must address whether the difference between the mandatory minimum sentence and the sentence determined to be fit and appropriate under the first step of the analysis is so significant that the mandatory minimum can be considered grossly disproportionate and hence cruel and unusual.[15]
Gross disproportionality exists when the difference between the two sentences is “so excessive as to outrage standards of decency.”[16] In order to assist in determining whether a mandatory minimum meets the threshold of gross disproportionality, the SCC outlined a three-part inquiry which requires an evaluation of: (i) the scope and reach of the offence; (ii) the effects of the penalty on the offender; and (iii) the penalty, including the balance struck by its objectives.[17] The SCC also confirmed that during this analysis, courts must consider the individual characteristics of offenders including race, gender, age, mental health, and the unique situation of Indigenous offenders.[18]
Justification
If a court finds the difference between the mandatory minimum sentence and the fit sentence is grossly disproportionate, such that it violates section 12 of the Charter, the Crown may argue that this violation is justified under section 1 of the Charter, which allows for reasonable limits on Charter rights. However, the Crown did not attempt to justify the sentences under section 1 of the Charter in Hills or Hilbach.
Application of Framework to Mr. Hills and Mr. Hilbach
In Hills, the Court considered the reasonable hypothetical of a young person intentionally discharging an air-powered pistol (that is incapable of perforating walls) at a residence (for instance, firing a paintball gun at a windowless garden shed at a residential home). By considering the individualized situation and characteristics outlined in the reasonable hypothetical, the SCC found that the mandatory minimum punishment of four years imprisonment was grossly disproportionate such that the mandatory minimum sentence violated section 12 of the Charter.
In Hilbach, no reasonable hypothetical was proffered. However, based on the two-step framework, the mandatory minimum sentences for Mr. Hilbach and Mr. Zwozdesky were deemed not to be grossly disproportionate. Though the SCC recognized that Indigenous offenders, such as Mr. Hilbach, are severely impacted by incarceration, the Court held that his actions attracted a high degree of “moral blameworthiness” such that the mandatory minimum did not meet the standard of being grossly disproportionate.[19] As such, the mandatory minimum sentence was found not to violate section 12 of the Charter.
Conclusion
The Hills and Hilbach decisions provide clarity on the framework for assessing whether mandatory minimum sentences amount to a Charter violation. Though this framework is not perfect, as pointed out by Côté J. dissenting in Hills, it reaffirms the appropriate use of reasonable hypotheticals.
In utilizing the reasonable hypothetical to assess the constitutionality of the mandatory minimum in Hills, the SCC offers important guidance on the appropriate balance of power between courts and legislatures when it comes to criminal sentencing. More specifically, Hills seems to signal that Parliament will not be owed deference and legislation will be struck down for being unconstitutional where it fails to consider offenders’ unique circumstances, situations, and characteristics in sentencing, including their race, age, gender, mental health, and Indigeneity.
However, the SCC’s approach in Hilbach introduces confusion as it appears to be inconsistent with the underlying tone of individualization and reconciliation in Hills. Though the SCC attributes the difference in results between Hills and Hilbach to the offenders’ moral blameworthiness, the SCC has been critiqued for underemphasizing the importance of individualized characteristics and systemic factors in Hilbach.[20]
While the threshold for gross disproportionality under the newly clarified two-step framework is somewhat unclear and seems to be heightened in Hilbach, both cases note that proportionality is a crucial factor in sentencing, which requires careful consideration of individualized characteristics. Moreover, the SCC’s willingness to strike down mandatory minimum sentences that unilaterally impose strict punishments without consideration of unique circumstances and individual characteristics is a positive step forward in advancing the goals of reconciliation and racial justice given the overrepresentation of Indigenous and racialized persons in the criminal justice system.
[1] R v Nur, 2015 SCC 15.
[2] R v Lloyd, 2016 SCC 13.
[3] R v Boudreault, 2018 SCC 58.
[4] R v Hills, 2023 SCC 2; R v Hilbach, 2023 SCC 3.
[5] Hills, supra note 4.
[6] Ibid.
[7] Hilbach, supra note 4.
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Hills, supra note 4 at para 64.
[12] Ibid at para 64.
[13] Ibid at para 67.
[14] Ibid at paras 76-77.
[15] Ibid at para 47.
[16] Ibid at para 109.
[17] Ibid at para 122.
[18] Hilbach, supra note 4 at para 37; Hills, supra note 4 at para 135.
[19] Hilbach, supra note 4 at para 51.
[20] See e.g. “What is Cruel and Unusual Punishment” (3 February 2023), online: Canadian Bar Association <cba.org/Our-Work/cbainfluence/cbainterventions/What-is-cruel-and-unusual-punishment> [perma.cc/UL6P-VALL]; Emily Chu “R v Hilbach: One Step Forward, One Step Back” (27 September 2023), online: University of Toronto Faculty of Law Review <utflr.ca/blog/hillsandhilbach> [perma.cc/A3VG-NL3Q]. Stacey Purser also commented that the decision by the Court of Appeal of Alberta (“ABCA”) in Hilbach “is significant because it emphasizes the need for individualization and to give meaningful effect to Gladue factors, even with respect to serious violent offences” in Stacey M. Purser, "Reconsidering Luxton in the Post-Nur Revolution: A Brief Qualitative and Quantitative Analysis of Recent Challenges to Mandatory Minimums and Other Sentencing Provisions" (2021) 44:5 Man LJ 124 at 143. It is important to note that the SCC overturned the ABCA’s decision in Hilbach.
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