Supreme Court rules some mandatory minimums are constitutional, while others are not

In a pair of split decisions Friday, the Supreme Court of Canada delivered significant rulings on the use of mandatory minimum sentences.

The top court said that in one case — which involved a person convicted of firing a gun into a building — the mandatory minimum sentence of four years was unconstitutional, even though that law has since been repealed. 

In two other cases — which involve robberies with firearms — the top court concluded that mandatory minimum sentences are constitutional, regardless of whether the guns involved were prohibited weapons.

The ruling on the robbery cases comes only months after the mandatory four-year minimum sentence for using a legal firearm in a robbery was repealed by the Liberal government Nov. 17.

The mandatory minimum sentence of five years for committing a robbery with a prohibited firearm, which was not repealed, was deemed constitutional by the top court.

The Supreme Court also ruled that the use of hypothetical cases to test the constitutionality of mandatory minimum sentences should continue.

One of the cases involves Jesse Dallas Hills, who used a hunting rifle in 2014 to shoot at a residential home, penetrating the wall and causing a family of four — two adults and two children — to take shelter in the basement.

None of the residents were shot in the incident.

At the time of the offence, a person convicted of discharging a firearm into a building faced a mandatory minimum sentence of four years, but that provision was also repealed in November. 

A hypothetical proof

Hills challenged the minimum sentence using a hypothetical scenario to argue that it violated section 12 of the Charter of Rights and Freedoms, which prohibits cruel and unusual treatment or punishment.

The hypothetical case presented in court was about someone firing a BB gun into a garden shed.

Under the law, BB guns and paint guns qualify as firearms because both devices have sufficient force to burst a pig's eye — the standard test to classify something as a firearm in Canada. 

The hypothetical case showed that the law does not distinguish between a garden shed or a family home when it sets the standard for shooting into a building.

The trial court ruled that the minimum sentence would constitute cruel and unusual treatment and instead sentenced Hills to three-and-a-half years in prison.

The Alberta Court of Appeal overturned that decision and imposed the mandatory minimum sentence of four years. 

Sentence not cruel and unusual: Côté

In an 8 to 1 ruling, the Supreme Court overturned that decision, saying that the mandatory minimum in this case "captures a wide spectrum of conduct, ranging from acts that present little danger to the public to those that pose a grave risk."

The top court said that the sentencing provision is too severe for minor crimes and "cannot be justified by deterrence and denunciation alone, and the punishment shows a complete disregard for sentencing norms."

Justice Suzanne Côté disagreed with the majority.

"Parliament did not intend to capture the reckless discharge of firearms in situations which present little danger to the public," Côté wrote in her dissenting opinion.

"Rather, it targeted offenders who specifically turned their mind to the fact that discharging their firearm would jeopardize the lives or safety of others."

Côté went on to say a minimum sentence of four years in prison did not "not meet the high threshold established by the Court for cruel and unusual punishment."

Mandatory minimum sentence upheld

The other two cases involve separate acts of armed robbery.

In the first case, Ocean William Storm Hilbach was convicted of robbery with a prohibited weapon — a crime that still carries with it a mandatory minimum sentence of five years.

Hilbach challenged the mandatory minimum sentence under section 12 of the charter. The court agreed and sentenced him to just under two years.

In the second case, Curtis Zwozdesky pleaded guilty to robbery with a non-prohibited firearm, a crime that comes with a mandatory minimum sentence of four years. That sentencing provision was also repealed Nov. 17.

At sentencing, Zwozdesky also filed a section 12 charter challenge, citing five separate hypothetical scenarios in an attempt to prove the mandatory minimum sentence was unconstitutional.

The court in this case sided with Zwozdesky and imposed a three-year sentence.

The Alberta Court of Appeal heard both cases together and dismissed the appeals while adding a year to Hilbach's sentence, concluding that a term of three years was a "fit and proportionate sentence."

In a 6-1-2 ruling, the Supreme Court said applying a mandatory minimum sentence to someone convicted of using a firearm to commit a robbery, whether that firearm is prohibited or not, was constitutional in both cases.

In Hilbach's case, the majority concluded that mandatory minimum sentences of five and four years respectively were constitutional.

Côté agreed with the majority, using different reasoning. Justices Mahmud Jamal and Andromache Karakatsanis disagreed, arguing that they thought both mandatory minimum sentences violated section 12 of the charter.

Some Harper laws deemed constitutional 

The Conservatives said the Supreme Court's ruling "upheld common sense Conservative sentencing policy" implemented under former prime minister Stephen Harper. 

"Trudeau repealed these sentencing laws in Bill C-5, claiming that these mandatory minimum sentences were unconstitutional," the Conservatives said in a media statement.

"The court's decision today shows that this is false, and the Liberals must take responsibility for their soft on crime policies that have unleashed a crime wave on Canada."

When the Liberal government announced in late 2021 it would repeal some mandatory minimum sentences, it published a charter statement explaining why it was repealing the laws.

In that statement, the federal government said mandatory minimum sentences "reduce judicial discretion to impose sentences that are proportionate to the gravity of the offence and degree of responsibility of the offender."

It said that mandatory minimums often lead to sentences that are "grossly disproportionate."