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By Liam K. Thompson
Neuberger & Partners LLP
A person is found guilty of a crime which Parliament deemed so severe as to warrant a mandatory minimum sentence. This person challenges the mandatory minimum as cruel and unusual punishment, because the mandatory minimum is grossly disproportionate—not for the person before the court, but for a person in a scenario that their lawyers came up with. While it may seem surprising, this is the approach to challenging mandatory minimums in Canada, and after a full-frontal assault by the Alberta Court of Appeal, it was recently reaffirmed by the majority of the Supreme Court.
In R v Hills 2023 SCC 2, the accused pleaded guilty to the offence of discharging a firearm into a home. In his case, the gun in question was a hunting rifle (a regular firearm, and not a restricted or prohibited one). Under the sentencing regime at the time of the offence, Mr. Hills would have been subject to a 4-year mandatory minimum penalty.
When a person challenges a mandatory minimum as cruel and unusual punishment in Canada—and thus contrary to s. 12 of the Canadian Charter of Rights and Freedoms—the person must demonstrate that the mandatory minimum would result in a grossly disproportionate sentence either for them or for a person in a reasonably foreseeable hypothetical situation.
Mr. Hills did not argue that a 4-year sentence was necessarily grossly disproportionate in his case. He admitted to having shot a hunting rifle into a home while being intoxicated on alcohol and prescription drugs. Rather, he argued on the basis of a reasonable hypothetical.
Courts in Canada use the “pig’s eye test” to determine whether a given item is a “firearm” within the meaning of the Criminal Code. The Code defines a “firearm” as “a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm”. The pig’s eye test comes in to play with respect to the “serious bodily injury” portion of the test. If the projectile fired from the alleged ‘firearm’ could rupture a pig’s eye, which is physically similar to a human eye, then the item can cause serious bodily injury, and is thus a firearm within the meaning of the Criminal Code. Importantly: this means that an air rifle or a paintball gun counts as a firearm. A paint ball gun or an air rifle, despite being a firearm within the meaning of the Criminal Code, can be legally purchased without a firearms licence.
The reasonable hypothetical in this case was a person who fired an air rifle at a dwelling. Under the law as written at the time of the offence, the judge would have no choice but to send this person to a federal penitentiary for 4 years.
Mr. Hills was successful with his challenge of the mandatory minimum at the trial court level. Unanimously, the Alberta Court of Appeal (in their decision at 2020 ABCA 263) allowed the Crown’s appeal and reinstated the mandatory minimum. However, 2 of the 3 members of the panel went on the warpath against the existing s. 12 jurisprudence. In a very unusual move, Justice Wakeling of the Court of Appeal specifically called on the Supreme Court to revisit their approach to s. 12.
Justice Wakeling’s attack on s. 12 jurisprudence had multiple prongs, but two in particular are quite startk: first, he took issue with the fact that prison sentences could be considered “cruel and unusual” at all. In his reasons, he stated that incarceration cannot be cruel and unusual. He stated that other more actively medieval punishments such as drawing and quartering or burning at the stake could be, but not a sentence of incarceration, no matter how lengthy. This was based on the notion that while a lengthy period of imprisonment may be cruel, it would not be unusual, as it is a penalty available for every offence in the Criminal Code.
Justice Wakeling also attacked the overall approach to s. 12 in Canadian law. Going back to The Queen v Smith  1 SCR 1045, Canadian courts have considered reasonable hypothetical scenarios in determining whether a mandatory minimum penalty was cruel and unusual. The accused in that case was convicted of trafficking a large amount of cocaine into Canada. At the time, importation of drugs had a mandatory minimum sentence of 7 years imprisonment. The Supreme Court considered the reasonable hypothetical of a youthful first offender who took a single cannabis joint from Washington into British Columbia. The court specifically rejected the argument that the Crown would exercise its discretion not to prosecute someone in such a position.
Justice Wakeling took issue with this, stating that the Supreme Court in Queen v Smith ignored the fact that this scenario would never happen in the real world. In Justice Wakeling’s view, it does matter that a reasonable prosecutor would not prosecute an individual for transporting a single joint over the border, or for firing a paintball gun at a shed.
Justice Martin at the Supreme Court (herself a former member of the Alberta Court of Appeal) allowed the appeal. She noted that s. 12 of the Charter has two arms: one which safeguards against excessive punishment, going to the severity of the penalty imposed, and one that safeguards against punishments which by their very nature are incompatible with human dignity, such as burning at the stake. Mandatory minimums are engaged by the prong which goes to the severity of the punishment imposed: while imprisonment is not cruel and unusual in every case, in some cases the period of incarceration imposed for the offender before the court will be. If the mandatory minimum sentence is grossly disproportionate in the case of the offender before the court or in the case of a reasonably foreseeable hypothetical, then the law will be contrary to s. 12 of the Charter.
Justice Martin for the majority specifically rejected the Court of Appeal’s call to abandon the use of reasonable hypotheticals. Noting that the Supreme Court dealt with similar arguments eight years ago in the case of R v Nur 2015 SCC 15. It is the nature of the law that is in issue, not whether the mandatory minimum in question would be cruel and unusual in the case of the offender before the court.
In a somewhat unusual display, Justice Martin went on to say that Justice Wakeling’s interpretation of s. 12 was “personal”, “idiosyncratic” and “simply wrong”. She noted that despite Justice Wakeling’s views, imprisonment is the harshest form of imprisonment in Canada. She wrote that it was a complete removal of the offender’s liberty, with a ripple effect that touches the offender’s employability, their children, and their community.
Justice Martin also had some interesting comments with respect to the effect of a sentence on a particular offender—a given sentence may be more punitive for a particular offender than another, if for instance, the offender was a police officer before being incarcerated, if they are disabled, or if they come from a background that would lead to a harsher prison experience because of systemic racism.
Ultimately, in considering the reasonable hypothetical of a person firing an air rifle into a dwelling, Justice Martin found that the mandatory minimum was contrary to s. 12 of the Charter. At trial, Mr. Hills called expert evidence to demonstrate that an air rifle could indeed rupture a pig’s eye, thus making it a “firearm”. She held that, in a scenario where a youthful offender fired an air rifle at a dwelling, the proportionate penalty would not involve any period of incarceration, much less 4 years in the penitentiary. A 4 year sentence would be grossly disproportionate in the circumstances, and the law was thus declared contrary to s. 12 of the Charter, it was not saved as a “reasonable limit” under s. 1 of the Charter, and thus declared of no force or effect. Justice Martin reinstated the 3.5 year sentence imposed on Mr. Hill by the sentencing judge.
R v Hills has once again re-affirmed our approach to s. 12 jurisprudence in Canada. While it may be surprising to some, it is perfectly legitimate to argue that a mandatory minimum would be grossly disproportionate not in the case of the offender before the court, but in the case of a reasonably foreseeable hypothetical offender. Furthermore, Justice Martin offered helpful comments with respect to the harsh nature of imprisonment generally and how a sentencing judge should look at the proportionality of any given sentence. If the judicial history to date is any indication, this may not be the last time that a court or an Attorney General attack the Supreme Court’s s. 12 framework, but it represents yet another occasion where it has been upheld.