Supreme Court of Canada
Appeal Heard: March 22, 2022 Judgment Rendered: January 27, 2023 Docket: 39338
Between: Jesse Dallas Hills Appellant and His Majesty The King Respondent
— and —
Director of Public Prosecutions, Attorney General of Ontario, Attorney General of Nova Scotia, Attorney General of Saskatchewan, British Columbia Civil Liberties Association, Criminal Lawyers' Association (Ontario), Canadian Bar Association and Canadian Civil Liberties Association Interveners
Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
Reasons for Judgment: (paras. 1 to 175) Martin J. (Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Kasirer and Jamal JJ. concurring)
Dissenting Reasons: (paras. 176 to 226) Côté J.
Jesse Dallas Hills Appellant
v.
His Majesty The King Respondent
and
Director of Public Prosecutions, Attorney General of Ontario, Attorney General of Nova Scotia, Attorney General of Saskatchewan, British Columbia Civil Liberties Association, Criminal Lawyers' Association (Ontario), Canadian Bar Association and Canadian Civil Liberties Association Interveners
Indexed as: R. v. Hills
2023 SCC 2
2022: March 22; 2023: January 27.
Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
on appeal from the court of appeal of alberta
Headnote
Constitutional law — Charter of Rights — Cruel and unusual treatment or punishment — Sentencing — Mandatory minimum sentence — Discharging firearm — Accused convicted of discharging firearm into or at place knowing that or being reckless as to whether another person is present in place — Accused challenging constitutionality of mandatory minimum sentence of four years' imprisonment prescribed for offence — Whether mandatory minimum sentence constitutes cruel and unusual punishment — Canadian Charter of Rights and Freedoms, s. 12 — Criminal Code, R.S.C. 1985, c. C-46, ss. 244.2(1)(a), 244.2(3)(b).
Following an incident in May 2014 where the accused shot at a car and at a residential home with a hunting rifle, the accused pled guilty to a number of offences, including intentionally discharging a firearm into or at a place, knowing that or being reckless as to whether another person is present in the place, contrary to s. 244.2(1)(a) of the Criminal Code. At the time, this offence carried a mandatory minimum sentence of four years' imprisonment, set out in s. 244.2(3)(b). The accused brought a challenge under s. 12 of the Charter, arguing that the mandatory minimum sentence was grossly disproportionate and therefore constituted cruel and unusual punishment. His challenge relied on 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.
The sentencing judge found that s. 244.2(3)(b) was grossly disproportionate in the hypothetical scenario relied on by the accused and concluded the infringement of s. 12 could not be justified under s. 1 of the Charter. He sentenced the accused to three and a half years of incarceration. The Crown appealed both the finding that s. 244.2(3)(b) infringed s. 12 of the Charter and the accused's sentence. The Court of Appeal allowed the appeal on both grounds. It set aside the sentencing judge's declaration of invalidity of the mandatory minimum sentence and imposed the minimum sentence of four years' imprisonment.
Held (Côté J. dissenting): The appeal should be allowed.
Per Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ.: The mandatory minimum sentence set out in s. 244.2(3)(b) of the Criminal Code is grossly disproportionate. It infringes s. 12 of the Charter and is not saved by s. 1. It is immediately declared of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982, and the declaration applies retroactively. The three-and-a-half-year sentence imposed on the accused by the sentencing judge is reinstated.
Section 12 of the Charter grants individuals a right not to be subjected to any cruel and unusual treatment or punishment by the state. The underlying purpose of s. 12 is to prevent the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment. It is meant to protect human dignity and respect the inherent worth of individuals. Section 12 has two prongs that are united by their shared animating purpose of safeguarding human dignity. First, s. 12 protects against the imposition of punishment that is so excessive as to be incompatible with human dignity. This prong is concerned with the severity of a punishment and queries whether the effects of an impugned punishment are grossly disproportionate to the appropriate punishment in a given case. Mandatory minimum sentences are analyzed under this prong of s. 12. Second, s. 12 protects against the imposition of punishment and treatment that are cruel and unusual because, by their very nature, they are intrinsically incompatible with human dignity. Under the second prong, the focus is on the method of punishment. The narrow class of punishments that fall within the second category will always be grossly disproportionate because these punishments are in themselves contrary to human dignity because of their degrading and dehumanizing nature.
To assess whether a mandatory minimum sentence violates s. 12 of the Charter, the Court has developed a two-stage inquiry: a court must (1) assess what constitutes a fit and proportionate sentence having regard to the objectives and principles of sentencing; and (2) consider whether the impugned provision requires the imposition of a sentence that is grossly disproportionate, not merely excessive, to the fit and proportionate sentence. This two-part assessment may proceed on the basis of either (a) the actual offender before the court, or (b) another offender in a reasonably foreseeable case or hypothetical scenario. Where the court concludes that the term of imprisonment prescribed by the mandatory minimum sentence provision is grossly disproportionate in either case, the provision infringes s. 12 and the court must turn to consider whether that infringement can be justified under s. 1 of the Charter if arguments or evidence to that effect are raised by the Crown.
The first stage of the s. 12 inquiry involves the individualized process of determining what a fit and proportionate sentence is for the particular (or representative) offender under consideration using the general sentencing principles set out by Parliament. It involves a complex and multifactorial assessment. To assist in this assessment, Parliament enacted s. 718 of the Criminal Code. Proper consideration is to be given to various objectives such as denunciation, deterrence, rehabilitation, providing reparations for harm done to victims, promoting a sense of responsibility and, when necessary, separating offenders from society. No sentencing objective should be applied to the exclusion of all others. Courts should also consider any aggravating and mitigating circumstances relating to the offence or to the offender. Whatever weight a judge may wish to accord to the objectives for sentencing in the Criminal Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is a central tenet of Canada's sentencing regime, with roots that predate the recognition of it as the fundamental principle of sentencing in s. 718.1 of the Criminal Code. Founded in fairness and justice, the purpose of proportionality is to prevent unjust punishment for the sake of the common good and it serves as a limiting function to ensure that there is justice for the offender. The amount of punishment an offender receives must be proportionate to the gravity of the offence and the offender's moral blameworthiness. The gravity of the offence refers to the seriousness of the offence and should be measured by taking into account the consequences of the offender's actions on victims and public safety, and the physical and psychological harms that flowed from the offence. The offender's moral culpability or degree of responsibility should be measured by gauging the essential substantive elements of the offence including the offence's mens rea, the offender's conduct in the commission of the offence, the offender's motive for committing the offence, and aspects of the offender's background that increase or decrease the offender's individual responsibility for the crime, including the offender's personal circumstances and mental capacity. Moreover, since sentencing is a highly individualized and discretionary endeavour, a sentencing judge cannot simply approximate a sentence or otherwise provide a range of penalties. The judge is expected to articulate an individual, specific and defined sentence.
Punishments can be impugned not only on the basis that they infringe the s. 12 rights of a particular offender, but also on the basis that they infringe those of a reasonably foreseeable offender. Because it is the nature of the law that is at issue, not the claimant's status, it suffices for a claimant to allege unconstitutional effects in their case or on third parties. In crafting reasonable hypotheticals, a court is examining the scope of the impugned law and not merely the justice of a particular sentence imposed by a judge at trial. A reasonable hypothetical scenario needs to be constructed with care and should include five characteristics. First, the hypothetical must be reasonably foreseeable. It ought not to be a far-fetched or marginally imaginable case, nor should it be a remote or extreme example. The appropriate approach is to construct a reasonably foreseeable offender with characteristics and in circumstances that are reasonably foreseeable based on judicial experience and common sense. What must be considered is how the provision impacts other persons who might reasonably be caught by it and the reasonably foreseeable situations in which the law may apply. Second, in defining the scope of the hypothetical scenario and the qualities of a reasonably foreseeable offender, courts may rely on reported cases since they not only illustrate the range of real-life conduct captured by the offence, they actually happened. However, courts may modify the facts of a reported case to illustrate reasonably foreseeable scenarios. Third, the hypothetical must be reasonable in view of the range of conduct in the offence in question. It needs to involve conduct that falls within the relevant provision. The scope of the offence can be explored and it is permissible to establish the breadth of the offence by reference to how it may be committed and by whom; however, straining each and every constituent element by fanciful facts is not helpful. Fourth, characteristics that are reasonably foreseeable for offenders, like age, poverty, race, Indigeneity, mental health issues and addiction, may be considered in crafting reasonable hypotheticals. Proportionality requires a consideration of the gravity of the offence and the offender's particular circumstances, which include their personal characteristics. Including such characteristics in hypothetical scenarios strengthens the analytical device by helping courts explore the reach of the mandatory penalty. However, the scenarios should not involve the most sympathetic offender but rather present a reasonably foreseeable offender. The hypothetical cannot be remote, far-fetched or utterly unrealistic. A court should be wary of detailed scenarios that stack mitigating factors combined with an interpretation that stretches and strains the technical meaning of the offence. Fifth, reasonable hypotheticals are best tested through the adversarial process. Although it is up to the offender/claimant to articulate and advance the reasonably foreseeable hypothetical which forms the basis for the claim that the impugned provision is unconstitutional, all parties should ideally be afforded a fair opportunity to challenge or comment upon the reasonableness of the hypothetical before making submissions on its constitutional implications. In doing so, parties can help the judge determine what type of hypothetical is reasonable in the circumstances. However, while testing the reasonable hypothetical through the adversarial process is to be encouraged, it is not mandatory in the sense that its absence represents a reviewable error.
The general sentencing principles applicable to an actual offender also apply when fixing a sentence for a reasonably foreseeable offender. Sentencing judges are bound by the Criminal Code and they must consider the sentencing proposals argued by counsel and utilize the method of analysis endorsed in their jurisdiction (whether sentencing ranges or starting point-sentences). As with cases involving an actual offender, courts should fix as narrowly defined a sentence as possible for a reasonably foreseeable offender. A court, however, may find it somewhat more difficult to fix a specific sentence for a reasonably foreseeable offender, given that hypotheticals are advanced without evidence or detailed facts. Accordingly, some latitude in fixing the fit sentence may be necessary. Courts may specify, for instance, that a sentence would be around a certain number of months. Any estimate must be circumscribed and tightly defined.
Once the fit sentence has been determined at the first stage, the second stage requires a contextual comparison between the fit sentence and the impugned mandatory minimum to see whether the latter complies with the widely-worded right set out in s. 12. Whether a mandatory minimum sentence is challenged based on its effect on the actual offender or on a reasonably foreseeable offender in a reasonable hypothetical, gross disproportionality is the applicable standard for invalidating it under s. 12 as cruel and unusual punishment. As the purpose of s. 12 is to safeguard human dignity, it protects offenders against grossly disproportionate terms of imprisonment. Furthermore, when comparing a mandatory minimum sentence to the fit sentence, the focus must be on the sentence itself. Courts must not consider parole eligibility as a factor reducing the actual impact of the impugned sentence, because the possibility of parole cannot cure a grossly disproportionate sentence.
The first part of the comparative task is to articulate what, if any, differences exist between the fit sentence identified at stage one and the mandatory minimum. Second, the punishment must be disproportionate in a manner or amount that is grossly so. This requires both the identification of any disparity between the sentences and an assessment of the mandatory minimum's effect and severity against constitutional standards. The process of assessing the existence and extent of any disparity between a fit punishment and the mandatory minimum imposed bears a resemblance to what occurs when a sentence is appealed and challenged as being demonstrably unfit. In such cases, there is a comparison between what would be fit and what has been imposed. However, gross disproportionality is a constitutional standard and a high bar. The elevated standard of gross disproportionality is intended to reflect a measure of deference to Parliament in crafting sentencing provisions. The word "grossly" signals Parliament is not required to impose perfectly proportionate sentences, which would undermine the ability of Parliament to establish norms of punishment, including mandatory minimum sentences. This is because, in respect of mandatory minimums, there is likely to be some disproportion between the individually fit sentence and the uniform mandatory minimum. In this regard, a sentence may be demonstrably unfit in the sense that an appellate court would intervene, but nevertheless not meet the constitutional threshold of being grossly disproportionate.
Three crucial components must be assessed when determining whether a mandatory minimum sentence is grossly disproportionate. The first component is the scope and reach of the offence. The case law reveals that a mandatory minimum sentence is more exposed to challenge where it captures disparate conduct of widely varying gravity and degrees of offender culpability. The wider the scope of the offence, the more likely there is a circumstance where the mandatory minimum will impose a lengthy term of imprisonment on conduct that involves lesser risk to the public and little moral fault. A court must assess to what extent the offence's mens rea and actus reus capture a range of conduct as well as the degree of variation in the offence's gravity and the offender's culpability. It may consider whether the offence necessarily involves harm to a person or simply the risk of harm, whether there are ways of committing the offence that pose relatively little danger, and to what degree the offence's mens rea requires an elevated degree of culpability of the offender.
The second component in the gross disproportionality analysis is the effects of the penalty on the offender. Courts must aim to identify the precise harm associated with the punishment. This calls for an inquiry into the effects that the impugned punishment may have on the actual or reasonably foreseeable offender both generally and based on their specific characteristics and qualities. The principle of proportionality implies that where the impact of imprisonment is greater on a particular offender, a reduction in sentence may be appropriate. For this reason, courts have reduced sentences to reflect the comparatively harsher experience of imprisonment for certain offenders, like offenders in law enforcement, for those suffering disabilities, or for those whose experience of prison is harsher due to systemic racism. A court should also consider the additional period of imprisonment imposed by the mandatory minimum, given the profound impact of imprisonment.
The last component of the analysis focuses on the penalty and its objectives. When assessing gross disproportion, courts assess the severity of the punishment mandated by Parliament to determine whether and to what extent the minimum sentence goes beyond what is necessary to achieve Parliament's sentencing objectives relevant to the offence while having regard to the legitimate purposes of punishment and the adequacy of possible alternatives. Denunciation and deterrence, both general and specific, are valid sentencing principles. However, deference to Parliament's decision to impose denunciatory sentences cannot be unlimited, as this purpose could support sentences of unlimited length. In enacting mandatory minimums, Parliament can prioritize some sentencing objectives over others, but within certain limits. Given the purpose of s. 12, the role given to rehabilitation when considering a mandatory minimum will help determine if the provision amounts to cruel and unusual punishment. While rehabilitation has no standalone constitutional status, there is a strong connection between the objective of rehabilitation and human dignity. A punishment that completely disregards rehabilitation would disrespect and be incompatible with human dignity and would therefore constitute cruel and unusual punishment under s. 12. In order to respect s. 12, punishment or sentencing must take rehabilitation into account. In addition, courts should assess whether the length of imprisonment legislated is too excessive in light of other potentially adequate alternatives. There is no mathematical formula to determine the specific number of years that would make a sentence in excess of a legitimate penal aim. The analysis, in all cases, must be contextual and there is no hard number above or below which a sentence becomes grossly disproportionate. A mandatory minimum sentence, however, will be constitutionally suspect and require careful scrutiny when it provides no discretion to impose a sentence other than imprisonment in circumstances where there should not be imprisonment, given the gravity of the offence and the offender's culpability. In addition, a minimum sentence can be grossly disproportionate where a fit and proportionate sentence would include a lengthy term of imprisonment. A mandatory minimum that adds to an offender's prison sentence may have a significant effect, given the profound consequences of incarceration on an offender's life and liberty. Courts should evaluate the punishment in light of the principles of parity and proportionality.
In the instant case, the hypothetical scenario raised by the accused is reasonably foreseeable. It falls within the scope of the offence and does not stretch or strain its constituent elements. The actus reus of the offence requires an offender to discharge a firearm into or at a place, which means any building or structure. A residence constitutes a place. As for whether an air-powered rifle or pistol could constitute a firearm per s. 2 of the Criminal Code, the expert evidence revealed that there are numerous air-powered rifles and pistols commonly available in Canada which meet the Criminal Code definition of a firearm, but are not capable of perforating a typical residential framed wall assembly. It is also reasonably foreseeable to imagine a young person firing a BB gun or a paintball gun at a house as part of a game, to pass time, or for a bit of mischief.
At the first stage of the s. 12 inquiry, a fit sentence for the hypothetical offender in the accused's proposed scenario would not involve imprisonment. Because the gravity of the offence and the culpability of the offender in this scenario are low, and the youthfulness of the offender acts as a mitigating factor, the fit and proportionate sentence is a suspended sentence of up to 12 months' probation. At stage two of the inquiry, the analysis leads to the conclusion that the four-year mandatory minimum sentence under s. 244.2(3)(b) is grossly disproportionate to the fit sentence. It applies to an offence that captures a wide spectrum of conduct, ranging from acts that present little danger to the public to those that pose a grave risk. The mandatory punishment would have significant deleterious effects on youthful offenders, who are viewed as having high rehabilitative prospects. Therefore, the mandatory minimum's effect is extremely severe as it replaces a probationary sentence with four years of imprisonment. A four-year custodial sentence is so excessive as to be significantly out of sync with sentencing norms and goes far beyond what is necessary for Parliament to achieve its sentencing goals for this offence. Denunciation and deterrence cannot support the minimum punishment, nor does the minimum show any respect for the principles of parity and proportionality. It would outrage Canadians to learn that an offender can receive four years of imprisonment for firing a paintball gun at a home. As the Crown does not advance any argument or evidence to demonstrate that the punishment may be justified under s. 1, there is no need to address this issue.
Per Côté J. (dissenting): The appeal should be dismissed. The four-year mandatory minimum sentence formerly imposed by s. 244.2(3)(b) of the Criminal Code does not violate s. 12 of the Charter.
There is agreement with the majority's affirmation of the two-stage inquiry for determining whether a mandatory minimum sentence violates s. 12. Courts must: (1) determine what constitutes a proportionate sentence for the offence, having regard to the objectives and principles of sentencing; and (2) ask whether the mandatory minimum sentence is grossly disproportionate to the sentence that would be fit and proportionate, either for the actual offender or for another offender in a reasonable hypothetical case.
However, there is disagreement with the majority's attempt to clarify the established framework through a new three-part test for gross disproportionality. The majority sets out three components to be assessed at stage two of the framework: (1) the scope and reach of the offence; (2) the effects of the punishment on the offender; and (3) the penalty and its objectives. Each of these duplicates considerations relevant to determining the low end of the range of fit and proportionate sentences for the offence at stage one. At the second stage, whether a mandatory minimum sentence is grossly disproportionate in relation to the length of the fit sentence — i.e., whether it is a sentence that is beyond merely excessive but so excessive as to outrage standards of decency — remains a normative judgment.
There is also disagreement with the majority's interpretation of s. 244.2(1)(a) of the Criminal Code. Parliament did not intend s. 244.2 to capture the reckless discharge of firearms in situations which present little danger to the public. Rather, it targeted offenders who specifically turned their mind to the fact that discharging their firearm would jeopardize the lives or safety of others. The actus reus of the offence, on its own, would extend to a wide range of conduct. But the scope of the offence is narrowed significantly by its mental element. The double mens rea requirement of s. 244.2(1)(a) captures only offenders who (1) intentionally discharge a firearm into or at a building or other place, with (2) knowledge of or recklessness as to the presence of occupants — and thus, who have turned their mind to the fact that shooting the firearm could put the lives or safety of others at risk. This interpretation, consistent with that of previous appellate courts, gives effect to the real intention of Parliament.
Properly interpreted, mere probation is not a fit and proportionate sentence for the s. 244.2(1)(a) offence. The hypothetical air-powered rifle scenario put forth by the accused at trial does not, without more, involve the kind of conduct that the law may reasonably be expected to catch. This scenario is crafted primarily on the offence's actus reus. There is no sufficient basis on which to conclude that the requisite mens rea would be satisfied. Missing from the hypothetical is whether the offender turned his mind to the presence of occupants, and the corresponding risk to lives or safety. The majority's position, which depends on the presence of a residential wall to protect occupants, ignores the possibility that bullets could go through a window or door, psychological effects on occupants or neighbours, and the risk of escalating violence. 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. The absence of serious injury or death will just be a matter of luck.
A sentence of two years should properly be considered the low end of the range of fit and proportionate sentences in reasonably foreseeable applications of s. 244.2(1)(a). The minimum four-year sentence imposed by s. 244.2(3)(b) would double this period of incarceration. The effects of this should not be minimized and may be devastating. However, as a constitutional matter, this additional period of imprisonment does not meet the high threshold established by the Court for cruel and unusual punishment. A mandatory minimum sentence oversteps constitutional limits when it is grossly disproportionate, beyond merely excessive. It is only on rare occasions that the Court has found a minimum sentence to violate s. 12, in contrast to punishments which are cruel and unusual by nature such as torture or castration. Parliament is within its rights to emphasize the objectives of deterrence and denunciation in the context of firearms offences. The Court has repeatedly affirmed the denunciatory role of minimum sentences for conduct which offends our society's basic code of values. The intentional shooting of a life-threatening firearm into or at a building or other place, with knowledge of or recklessness as to the presence of occupants, is a clear example of such conduct.
The hypothetical scenario relied on by the majority is unmoored from judicial experience and common sense. It has not resulted in a single conviction under s. 244.2(1)(a) — nor would it, on a proper interpretation of the offence. Section 244.2(1)(a) only captures intentional shootings which are highly blameworthy and antithetical to the peace of the community. A four-year minimum sentence is not so excessive as to outrage standards of decency or incompatible with human dignity to rise to the level of cruel and unusual punishment under s. 12.
Cases Cited
By Martin J.
Applied: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; considered: R. v. Bissonnette, 2022 SCC 23, [2022] 1 S.C.R. 597; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599; R. v. Goltz, [1991] 3 S.C.R. 485; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; referred to: R. v. Hilbach, 2023 SCC 3, [2023] 1 S.C.R. 116; Vézina v. R., 2018 QCCA 739; Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783; R. v. Dunn, 2013 ONCA 539, 117 O.R. (3d) 171, aff'd 2014 SCC 69, [2014] 3 S.C.R. 490; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906; R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566; Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32; R. v. Luxton, [1990] 2 S.C.R. 711; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895; R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3; R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641; R. v. Anderson, 2021 NSCA 62, 405 C.C.C. (3d) 1; R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Hamilton (2004), 72 O.R. (3d) 1; R. v. Martineau, [1990] 2 S.C.R. 633; R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496; R. v. Heywood, [1994] 3 S.C.R. 761; R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754; R. v. Ndhlovu, 2022 SCC 38, [2022] 3 S.C.R. 52; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Miller v. The Queen, [1977] 2 S.C.R. 680; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Steele v. Mountain Institution, [1990] 2 S.C.R. 1385; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424; R. v. Oud, 2016 BCCA 332, 339 C.C.C. (3d) 379; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Sansregret v. The Queen, [1985] 1 S.C.R. 570; R. v. Nassri, 2015 ONCA 316, 125 O.R. (3d) 578; R. v. Pretty, 2005 BCCA 52, 208 B.C.A.C. 79; R. v. Stone, [1999] 2 S.C.R. 290; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309.
By Côté J. (dissenting)
R. v. Bissonnette, 2022 SCC 23, [2022] 1 S.C.R. 597; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, aff'g 2013 ONCA 677, 117 O.R. (3d) 401; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v. Hilbach, 2023 SCC 3, [2023] 1 S.C.R. 116; R. v. Smith, [1987] 1 S.C.R. 1045; Miller v. The Queen, [1977] 2 S.C.R. 680; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; R. v. Hasselwander, [1993] 2 S.C.R. 398; Sansregret v. The Queen, [1985] 1 S.C.R. 570; R. v. Oud, 2016 BCCA 332, 339 C.C.C. (3d) 379; R. v. Pretty, 2005 BCCA 52, 208 B.C.A.C. 79; Steele v. Mountain Institution, [1990] 2 S.C.R. 1385; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Lyons, [1987] 2 S.C.R. 309; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134.
Statutes and Regulations Cited
Act to amend the Criminal Code and the Controlled Drugs and Substances Act, S.C. 2022, c. 15.
Canadian Charter of Rights and Freedoms, ss. 1, 7, 11, 12.
Constitution Act, 1982, s. 52(1).
Firearms Act, S.C. 1995, c. 39.
Youth Criminal Justice Act, S.C. 2002, c. 1, s. 38.
Appeal History
APPEAL from a judgment of the Alberta Court of Appeal (O'Ferrall, Wakeling and Antonio JJ.A.), 2020 ABCA 263, 9 Alta. L.R. (7th) 226, [2021] 2 W.W.R. 31, 391 C.C.C. (3d) 37, 466 C.R.R. (2d) 286, 65 C.R. (7th) 233, [2020] A.J. No. 740 (QL), 2020 CarswellAlta 1265 (WL), setting aside a decision of Jerke J., 2018 ABQB 945, 79 Alta. L.R. (6th) 161, [2019] 1 W.W.R. 551, 425 C.R.R. (2d) 43, [2018] A.J. No. 1379 (QL), 2018 CarswellAlta 2760 (WL), and varying the sentence of the accused. Appeal allowed, Côté J. dissenting.
Counsel
Heather Ferg and W. E. Brett Code, K.C., for the appellant.
Robert A. Fata, for the respondent.
Janna A. Hyman, for the intervener the Director of Public Prosecutions.
Andreea Baiasu and Gregory Furmaniuk, for the intervener the Attorney General of Ontario.
Written submissions only by Glenn Hubbard, for the intervener the Attorney General of Nova Scotia.
Grace Hession David, for the intervener the Attorney General of Saskatchewan.
Emily MacKinnon, Amanda G. Manasterski and Stephen Armstrong, for the intervener the British Columbia Civil Liberties Association.
Janani Shanmuganathan and Laura Metcalfe, for the intervener the Criminal Lawyers' Association (Ontario).
Eric V. Gottardi, K.C., and Chantelle van Wiltenburg, for the intervener the Canadian Bar Association.
Nader R. Hasan and Ryann Atkins, for the intervener the Canadian Civil Liberties Association.
Reasons for Judgment
The judgment of Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ. was delivered by
I. Introduction
1This appeal, and the companion appeal of R. v. Hilbach, 2023 SCC 3, [2023] 1 S.C.R. 116, provide the Court with an opportunity to clarify the legal principles that govern when the constitutionality of a mandatory minimum sentencing provision is challenged under s. 12 of the Canadian Charter of Rights and Freedoms. At issue in both appeals are three different offences under the Criminal Code, R.S.C. 1985, c. C-46, which involve the use of a firearm. In this appeal, the appellant, Jesse Dallas Hills, was convicted of discharging a firearm into or at a home under s. 244.2(1)(a). Mr. Hills challenges the four-year mandatory minimum sentence previously imposed by s. 244.2(3)(b) for this offence. The mandatory minimum sentence prescribed in s. 244.2(3)(b) was repealed after this appeal was heard. Despite this legislative change, the reasons examine the impugned mandatory minimum as previously enacted. In the companion case, Ocean William Storm Hilbach and Curtis Zwozdesky were convicted of armed robbery. They challenge, respectively, the five-year mandatory minimum for robbery with a restricted or prohibited firearm under s. 344(1)(a)(i) and the former four-year mandatory minimum for robbery with a firearm under s. 344(1)(a.1). The mandatory minimum sentence set out in s. 344(1)(a.1) was also repealed after the Hilbach appeal was heard.
2In both appeals, the offenders argue that the prescribed mandatory minimum sentences constitute cruel and unusual punishment contrary to s. 12 of the Charter. They claim that these automatic sentences, which impose a stated minimum term of imprisonment, are grossly disproportionate to what would be a fit and appropriate punishment and therefore offend the Charter. Mr. Hills and Mr. Zwozdesky admit that the minimum sentences were warranted based on the facts of their cases, but nevertheless challenge the law based on how the sentencing provisions could reasonably apply to others for whom they claim the minimum penalties imposed would be constitutionally infirm punishments.
3This is not the first time the constitutionality of mandatory minimum sentences has been before this Court. While these appeals reveal some of the challenges faced when determining whether a punishment is grossly disproportionate, there is no reason to upset sound and settled law and adopt the new approaches advocated by some parties, interveners and judges of the Alberta Court of Appeal. The principles for assessing whether a punishment is cruel and unusual are well established and were recently and unanimously affirmed in R. v. Bissonnette, 2022 SCC 23, [2022] 1 S.C.R. 597. In this decision, the Court seeks to provide further guidance, direction and clarity. These reasons offer a framework in response to submissions in both this appeal and in Hilbach. As such, I will not distinguish between submissions from counsel in both cases addressing suggested changes to the s. 12 framework.
4In this appeal, I first set out the generally applicable framework and foundational principles for the s. 12 analysis and then apply them to Mr. Hills and, in Hilbach, to Mr. Hilbach and Mr. Zwozdesky. Whether a mandatory minimum is grossly disproportionate will depend upon the scope and reach of the offence, the effects of the punishment on the offender, and the penalty and its objectives.
5In respect of Mr. Hills, I conclude that s. 244.2(3)(b) is grossly disproportionate. Here, the evidence showed that numerous air-powered rifles constituted "firearms", including air-powered devices like paintball guns, even though they could not perforate the wall of a typical residence. It is also reasonably foreseeable that a young person could intentionally discharge such a "firearm" into or at a place of residence. This provision therefore applies to an offence that captures a wide spectrum of conduct, ranging from acts that present little danger to the public to those that pose a grave risk. Its effect at the low end of the spectrum is severe. The mandatory minimum cannot be justified by deterrence and denunciation alone, and the punishment shows a complete disregard for sentencing norms. The mandatory prison term would have significant deleterious effects on a youthful offender and it would shock the conscience of Canadians to learn that an offender can receive four years of imprisonment for firing a paintball gun at a home. As a result, s. 244.2(3)(b) imposes a mandatory minimum of four years' imprisonment for a much less grave type of activity such that it is grossly disproportionate and amounts to cruel and unusual punishment. The Crown did not argue that s. 244.2(3)(b) could be saved under s. 1 of the Charter. Accordingly, I would allow the appeal. I address s. 344(1)(a)(i) and (a.1) in the companion case of Hilbach.
II. Legislative Background
A. The Challenged Mandatory Minimum
6Mr. Hills was subject to the mandatory minimum at issue after he pled guilty to the offence in s. 244.2(1)(a):
244.2 (1) Every person commits an offence
(a) who intentionally discharges a firearm into or at a place, knowing that or being reckless as to whether another person is present in the place; or
(b) who intentionally discharges a firearm while being reckless as to the life or safety of another person.
(2) For the purpose of paragraph (1)(a), place means any building or structure — or part of one — or any motor vehicle, vessel, aircraft, railway vehicle, container or trailer.
(3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and
(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if the offence is committed for the benefit of, at the direction of or in association with a criminal organization, is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of
(i) five years, in the case of a first offence, and
(ii) seven years, in the case of a second or subsequent offence; and
(b) in any other case, is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of four years.
7After 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. It removed the mandatory minimum sentence prescribed in s. 244.2(3)(b). Mr. Hills' offence no longer attracts a mandatory minimum. The parties do not rely on Parliament's choice to remove this measure in their arguments. Further, the four-year mandatory minimum sentence was still in effect at the time of the hearing. While I acknowledge this legislative change, these reasons examine the provision as previously enacted with the applicable mandatory minimum term and as such, I will not address this issue further.
8The actus reus of s. 244.2(1)(a) requires that an offender discharge a firearm into or at a "place" (as defined by s. 244.2(2)). It is significant, for this appeal, that "place" has a very wide meaning: it includes "any building or structure", which encompasses anything from a windowless garden shed to a residential home. The mens rea for this offence contains two main components. First, the offender must intentionally discharge the firearm into or at a place. Second, in intentionally discharging the firearm into or at a place, the offender must know a person is present in the place or be reckless as to whether a person is present there (Vézina v. R., 2018 QCCA 739, at para. 27 ). The actus reus does not require a person to be at the "place" where the firearm is discharged, only that the firearm be discharged into or at a place (para. 46). Thus, there is no requirement for a person to even be present when the firearm is discharged.
9Mr. Hills committed his offence using a hunting rifle, which is classified as an ordinary firearm. As a result, he was subject to the four-year minimum for s. 244.2(1)(a) listed in s. 244.2(3)(b). To appreciate the scope of s. 244.2(1)(a) and the mandatory minimum sentence in question, it is necessary to review the meaning of a "firearm" under the Criminal Code and Canada's regulatory scheme for firearms.
B. The Applicable Firearms Regime
10Parliament regulates firearms through a variety of legislation including the licensing and registration regime in the Firearms Act, S.C. 1995, c. 39, and through criminal prohibitions in the Criminal Code (R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 6; Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783). This legislation forms the background to this appeal and given its complexity, it is important to appreciate its operation before turning to Mr. Hills' challenge.
11To start, s. 244.2(1)(a) incorporates the Criminal Code definition of a firearm. Section 2 of the Criminal Code generally 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". While firearms are defined as "weapons", they do not need to meet the Criminal Code definition of a weapon (R. v. Dunn, 2013 ONCA 539, 117 O.R. (3d) 171, at para. 66, aff'd 2014 SCC 69, [2014] 3 S.C.R. 490).
12Courts rely on the "pig's eye test" to determine whether a barrelled weapon is capable of causing serious bodily injury or death and thus meets the definition of a "firearm" in the Criminal Code (Dunn, at paras. 8 and 40). The test asks whether a projectile fired from the device can rupture a pig's eye, which is physiologically similar to a human eye (para. 8). Since a ruptured eye is a "serious bodily injury", a "firearm" is any barrelled, projectile-firing device capable of putting someone's eye out (paras. 8 and 40). As the expert evidence on this appeal establishes, some air-powered devices, like BB guns, airsoft guns, and paintball guns, are capable of firing projectiles with enough velocity to rupture a pig's eye. As a result, they can be classified as firearms under the Criminal Code.
13However, some air-powered devices that are "firearms" for the purposes of the Criminal Code are not subject to the Firearms Act's licensing and registration regime. Indeed, the Criminal Code exempts some "firearms" from the Firearms Act. Specifically, at issue in this appeal is the exemption in s. 84(3)(d)(i):
(3) For the purposes of sections 91 to 95, 99 to 101, 103 to 107 and 117.03 of this Act and the provisions of the Firearms Act, the following weapons are deemed not to be firearms:
(d) any other barrelled weapon, where it is proved that the weapon is not designed or adapted to discharge
(i) a shot, bullet or other projectile at a muzzle velocity exceeding 152.4 m per second or at a muzzle energy exceeding 5.7 Joules . . . .
14Under s. 84(3)(d)(i), some air-powered devices that meet the pig's eye test and constitute firearms under the Criminal Code are nevertheless exempted from the Firearms Act, since their muzzle velocity falls at or below 152.4 metres per second. As a result, even though they are "firearms" for the purposes of the Criminal Code, they can be freely possessed without a firearms licence.
15The implication for this appeal is that some air-powered devices, which can be freely possessed in Canada, are "firearms" for the purposes of s. 244.2(1)(a). Put simply, an offender could be convicted under s. 244.2(1)(a) for firing a BB gun or a paintball gun at a shed. This offender would then be subject to the four-year mandatory minimum. While s. 244.2(1)(a) may typically apply where an ordinary firearm is used (like Mr. Hills' hunting rifle), it is possible for an offender to be convicted for using devices that are not known to inflict deadly force, like paintball guns. As I explain, this possibility underlies the constitutional frailty of the mandatory minimum at issue here.
III. Facts and Judicial History
16During an incident on May 6, 2014, Mr. Hills attacked two vehicles and a residence. In the hours prior to the incident, Mr. Hills consumed a large volume of prescription medication and alcohol. Around midnight, while intoxicated, he left his home in Lethbridge, Alberta with a loaded .303 Enfield bolt action rifle and a baseball bat. The rifle was designed for big game hunting.
IV. The Section 12 Framework
A. Overview
32The underlying purpose of s. 12 is "to prevent the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment. It is meant to protect human dignity and respect the inherent worth of individuals" (Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32, at para. 51). Dignity evokes the idea that every person has intrinsic worth and is therefore entitled to respect, irrespective of their actions (Bissonnette, at para. 59).
33The analytical approach under s. 12 spans many years and has been used to address different types of legal issues. Mandatory minimum sentences have been considered in Smith, R. v. Luxton, [1990] 2 S.C.R. 711, R. v. Goltz, [1991] 3 S.C.R. 485, R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, Nur, and most recently in R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130. A mandatory victim surcharge which applied to all offences was struck down in Boudreault; a mandatory weapons prohibition order was upheld in R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895; and a sentence of life imprisonment with parole ineligibility of 10 years was upheld in R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3.
34In Bissonnette, this Court invalidated the stacking of periods of parole ineligibility in cases of multiple murder convictions and reaffirmed and consolidated the well-established analytical approach under s. 12. Chief Justice Wagner, writing for a unanimous Court, emphasized the need for a purposive Charter interpretation which is generous and aimed at securing the full benefits of Charter protections for individuals (para. 98). Based on the purpose of s. 12, he concluded that a sentence that entirely negates the penal objective of rehabilitation violates human dignity and, therefore, contravenes s. 12 in a manner which could not be saved under s. 1 (para. 8).
35Bissonnette also confirmed that s. 12 has two prongs that are united by their shared animating purpose of safeguarding human dignity. First, s. 12 protects against the imposition of punishment that is "so excessive as to be incompatible with human dignity" (para. 60). This prong of cruel and unusual punishment is concerned with the severity of a punishment — it queries not whether an impugned punishment is excessive or disproportionate, but whether its effects are grossly disproportionate to the appropriate punishment in a given case (paras. 61 and 68; Nur, at para. 39; Morrisey, at para. 26). Under the first prong, it is not the nature or type of punishment that is at issue, but the amount or quantity of punishment imposed: the focus is whether its particular effects make it grossly disproportionate and thereby constitutionally infirm (Bissonnette, at para. 62).
36Second, s. 12 protects against the imposition of punishment and treatment that are cruel and unusual because, by their very nature, they are "intrinsically incompatible with human dignity" (Bissonnette, at para. 60). Under the second prong, the focus is on the method of punishment. The narrow class of punishments that fall within the second category "will 'always be grossly disproportionate' because . . . [t]hese punishments are in themselves contrary to human dignity because of their 'degrading and dehumanizing' nature" (para. 64, quoting Smith, at p. 1073; 9147-0732 Québec inc., at para. 51).
37Mandatory minimum sentences are analyzed under the first prong of s. 12. As their name suggests, Parliament has prescribed a minimum sentence which applies whenever a particular offence has been committed. They are "mandatory" in the sense that Parliament has not provided the safety valve of judicial discretion, exemptions, or escape clauses.
38Despite this absence of discretion, mandatory minimum sentence provisions have not been found to be inherently or presumptively unconstitutional. As this Court stated in Smith"[t]he legislature may . . . provide for a compulsory term of imprisonment upon conviction for certain offences without infringing rights protected by s. 12 of the Charter" (p. 1077; see also p. 1072). Nevertheless, the absence of any discretion, as well as the manner of their operation, expose their constitutional vulnerabilities. Mandatory minimums can "function as a blunt instrument" and "deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range" (Nur, at para. 44). In "extreme cases", they may impose unjust sentences "because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality" (para. 44). When the effects of the impugned punishment are grossly disproportionate to what would have been appropriate (Smith, at p. 1072), the punishment is cruel and unusual because it shows the "state's complete disregard for the specific circumstances of the sentenced individual and for the proportionality of the punishment inflicted on them" (Bissonnette, at para. 61).
39I turn now to the framework this Court has developed to assess whether a sentence is grossly disproportionate.
B. The Framework for Assessing Grossly Disproportionate Sentences
(1) Overview
40To assess whether a mandatory minimum violates s. 12 of the Charter, this Court has developed a two-stage inquiry that involves a contextual and comparative analysis (Bissonnette, at para. 62). A court must:
Assess what constitutes a fit and proportionate sentence having regard to the objectives and principles of sentencing in the Criminal Code (Bissonnette, at para. 63; Boudreault, at para. 46; Nur, at para. 46).
Consider whether the impugned provision requires the imposition of a sentence that is grossly disproportionate, not merely excessive, to the fit and proportionate sentence (Bissonnette, at para. 63; Nur, at para. 46; Smith, at p. 1072). The constitutional bar is set high to respect Parliament's general authority to choose penal methods that do not amount to cruel and unusual punishment.
41This two-part assessment may proceed on the basis of either (a) the actual offender before the court, or (b) another offender in a reasonably foreseeable case or hypothetical scenario (Bissonnette, at para. 63; Nur, at para. 77).
42Where the court concludes that the term of imprisonment prescribed by the mandatory minimum sentence provision is grossly disproportionate in either case, the provision infringes s. 12 and the court must turn to consider whether that infringement can be justified under s. 1 of the Charter if arguments or evidence to that effect are raised by the Crown (Boudreault, at para. 97; Nur, at para. 46).
V. Application: Section 244.2(3)(b) Is Grossly Disproportionate
E. Section 244.2(3)(b) Is Grossly Disproportionate
149Mr. Hills fired several rounds from a hunting rifle into a residential home, knowing that or being reckless as to whether it was occupied. Mr. Hills concedes the four-year mandatory minimum sentence under s. 244.2(3)(b) is not grossly disproportionate in his circumstances.
150Instead, he says 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 (see Court of Queen's Bench decision, at para. 14). As I explain below, the scenario raised by Mr. Hills is reasonably foreseeable. Moreover, I agree with the sentencing judge that four years of imprisonment would be grossly disproportionate in this scenario. In my view, Antonio J.A. erred in overstating the gravity of the offence and the culpability of the offender involved in this realistic scenario.
(1) Mr. Hills Raises a Reasonably Foreseeable Scenario
151The Crown rightly conceded and the sentencing judge properly accepted that Mr. Hills advanced a reasonably foreseeable scenario. To begin, the scenario proposed by Mr. Hills falls within the scope of the offence and does not stretch or strain its constituent elements. The actus reus of the offence requires an offender to discharge a "firearm" into or at a "place", which means "any building or structure". There is no question that a residence constitutes a place. The sole question is whether an air-powered rifle or pistol could constitute a "firearm" per s. 2 of the Criminal Code, despite being incapable of perforating a residential wall. The expert evidence called by Mr. Hills resolved any doubt on this issue and cured the "evidentiary gap" which previously led some courts to decline to consider a similar scenario (see R. v. Oud, 2016 BCCA 332, 339 C.C.C. (3d) 379, at para. 46).
152Specifically, the expert showed that eight air-powered rifles or pistols discharged a projectile with sufficient velocity to satisfy the "pig's eye test" but most of them were incapable of penetrating a residential wall. Those eight devices were (1) an airsoft pistol, (2) a Daisy Red Ryder model BB gun, (3) a paintball marker, (4) a youth sized pellet rifle, (5) an adult sized .177 calibre pellet rifle, (6) a .22 calibre pellet pistol, (7) a .22 calibre pellet rifle, and (8) a Ruger 10/22 semi-automatic rifle. The expert concluded that there are "numerous air-powered rifles and pistols commonly available in Canada which meet the Criminal Code definition of a firearm, but are not capable of perforating a typical residential framed wall assembly" (A.R., at p. 393; see also Court of Queen's Bench decision, at para. 16).
153The Crown accepted the expert's conclusion that some air-powered devices are firearms under s. 2 of the Criminal Code, yet are incapable of perforating a typical residential wall. I have no concern regarding the expert's conclusion either.
154It is also reasonably foreseeable to imagine a young person firing a BB gun or a paintball gun at a house. As the sentencing judge wrote, it is "easy to conceive of situations where a young person might do just as posed in the hypothetical case" (para. 17). The offender could do so as part of a game, to pass time, or for a bit of mischief. Thus, it is reasonably foreseeable that (1) a young person intentionally discharges a "firearm" into or at a residence, (2) knowing that or being reckless as to whether a person is present, and that (3) the "firearm" discharged is an air-powered pistol or rifle that is classified as a "firearm" under s. 2 of the Criminal Code but is incapable of perforating a typical residential wall.
(2) A Fit and Proportionate Sentence in a Foreseeable Scenario Would Not Involve Imprisonment
155I turn to the first stage of the s. 12 inquiry in Nur and the question of a fit sentence for the reasonably foreseeable offender in such a situation. The usual deferential appellate standard of review for sentencing applies to a sentence imposed on the actual offender (Lacasse, at paras. 11-12). For sentences imposed on hypothetical offenders, however, the same rationale for deference carries less weight as the fit sentence is determined by supposing facts, and not through weighing actual evidence (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 18 and 74).
156However, there is no need to set out when a reviewing court may come to its own conclusion about a fit sentence for reasonably foreseeable offenders, since I agree with the sentencing judge that a fit sentence for this hypothetical youthful offender would involve probation and that "certainly no such offender would receive a four-year penitentiary term or a sentence approaching anywhere near that" (para. 19). Indeed, in light of the gravity of the act and the moral culpability of the offender in such an instance, the scenario is akin to a minor mischief offence where a suspended sentence or probation may be appropriate. The gravity of the offence and the culpability of the offender are low in this scenario, focusing on the offence's consequences and the offender's mens rea. Regarding the offence's gravity, the consequences for public safety are relatively low in this scenario. The actus reus for this offence does not require any person to be present at the "place" where the firearm is discharged. Even if another person were present, the expert evidence establishes the minimal danger posed by the offender's actions, given the firearm's power is substantially reduced. In my view, Antonio J.A. erred in overstating the risks to the public in this scenario as a result.
157I do not accept that the sentencing judge overlooked the risk of a projectile flying through an open window or striking a person walking nearby. A conviction does not require anyone to be where the projectile is shot and the sentencing judge was clearly alive to these risks, observing "the gravamen of the offence is the danger of potential harm, which can be caused by wildly shooting into or at a place. The danger should not depend on whether a person is shooting into a building, through a window or at a motor vehicle. The danger is always present" (para. 41 (emphasis deleted)). The sentencing judge was evidently aware of the very risks that Antonio J.A. suggests were overlooked.
158In my view, the sentencing judge concluded the firearms at issue posed a far lower risk relative to conventional firearms, even taking into account the risks raised by Antonio J.A. The sentencing judge found the expert "cured" the "evidentiary gap" in Oud (para. 26). Part of the "gap" in Oud was the lack of evidence to show whether a projectile fired from an air-powered rifle or pistol was "far less serious than discharging a regular gun" (Oud, at para. 47).
159Here, the expert evidence showed an air-powered device could be far less dangerous, with some incapable of causing damage beyond cracking the vinyl siding of a house. Moreover, some of the devices that the expert tested were, quite literally, designed to shoot projectiles at other people for sport. When these considerations are combined with the fact that no one needs to be near where the projectile is shot, I see no issue with the sentencing judge's conclusion that the risk to life and safety is low in Mr. Hills' hypothetical (para. 16). I fail to see any substantial harm, whether actual or potential, from an offender firing a paintball gun at a house when nobody is around, even though this conduct falls within the impugned section.
160Turning to the offender's culpability, the Crown argues that the double mens rea tailors this offence to capture particularly blameworthy conduct. In my view, the double mens rea requirement does little to narrow the offence. To be convicted, an offender need only know of or be reckless as to the presence of others. No harm to others is required to ground the offence. Although recklessness requires the "knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur" (Sansregret v. The Queen, [1985] 1 S.C.R. 570, at p. 584), the offender must only be thoughtless as to whether anyone is present at the place where the firearm — including a paintball gun, airsoft gun, or BB gun — is discharged. Recklessness as conceived in s. 244.2(1)(a) does not require an offender to explicitly turn their mind to the fact that they are placing others at risk. I agree with the sentencing judge that the scenario discloses immature behaviour and low moral blameworthiness (paras. 17 and 19).
161Youth is a mitigating factor on sentencing. The hypothetical scenario is an example of criminalized conduct that may reflect a lack of guidance or supervision more than criminal intent on the part of the offender. In the context of youthful offenders, the principles of general deterrence and denunciation should come secondary to that of rehabilitation (R. v. Nassri, 2015 ONCA 316, 125 O.R. (3d) 578, at para. 31). In this scenario, general deterrence should play a limited role in crafting a fit sentence. Instead, specific deterrence and rehabilitation should be the primary objectives when sentencing youthful first offenders.
162As such, because the gravity of the offence and the culpability of the offender in this scenario are low, and the youthfulness of the offender acts as a mitigating factor, the fit and proportionate sentence is a suspended sentence of up to 12 months' probation.
(3) The Mandatory Minimum Is Grossly Disproportionate
163I turn now to stage two of the Nur analysis and consider whether the mandatory minimum at issue requires the court to impose a sentence that is grossly disproportionate to the fit sentence. Based on this reasonable hypothetical, I conclude that the four-year mandatory minimum term of imprisonment imposed by s. 244.2(3)(b) is grossly disproportionate. It would "shock the conscience" of Canadians to learn that an offender can receive four years of imprisonment for an activity that poses more or less the same risk to the public as throwing a stone through the window of a residential home.
164The first component is the offence. Like in Nur and Lloyd, the mandatory minimum sentence in this case applies to a wide spectrum of conduct. On one end of the spectrum, there is Mr. Hills' conduct, which poses a high risk of harm and demonstrates an elevated degree of culpability. On the other, there is the foreseeable scenario raised by Mr. Hills, which presents little danger to the public and little fault. The wide scope of the minimum is due mainly to the actus reus for s. 244.2(1)(a). As noted, the definition of "firearm" encompasses devices capable of inflicting lethal harm as well as those designed to shoot projectiles at other people in recreational sport. The definition of "place" includes everything from a garden shed to a car, occupied or not. No person need be in the area where the firearm is shot. While I agree that firing a hunting rifle at a house is very severe and blameworthy conduct (as in Mr. Hills' case), the same cannot be said for the hypothetical scenario presented here. In the result, s. 244.2(1)(a) is at greater risk of being constitutionally infirm because it captures a broad range of disparate conduct that includes offences of varying gravity and degrees of offender culpability. The scope of the offence is wide.
165The second component is the effects of the punishment on the actual or reasonably foreseeable offender. A four-year term of imprisonment would have significant deleterious effects on youthful offenders, who are viewed by our criminal law as having high rehabilitative prospects. It follows that sentences for youthful offenders are often largely directed at rehabilitation. To prioritize rehabilitation, youthful offenders should benefit from the shortest possible sentence that is proportionate to the gravity of the offence. This is because incarceration is often not a setting where the reformative needs of young people are met. Youthful offenders in federal penitentiaries are often bullied, recruited into adult gangs for protection and are vulnerable to placements in segregation. For the youthful offender at bar, the difference between a reformatory sentence served in community and a four-year period of incarceration would be profoundly detrimental.
166The mandatory minimum's effect is extremely severe in this case. Like the minimums at issue in Nur and Lloyd, its effect is to replace a probationary sentence with four years of imprisonment. Not only does the minimum mandate the punishment of "last resort", it imposes four years of incarceration. This weighs strongly against the minimum's constitutionality under s. 12.
167The third component is the penalty. A four-year custodial sentence is so excessive as to be significantly out of sync with sentencing norms and goes far beyond what is necessary for Parliament to achieve its sentencing goals for this offence. A four-year minimum term of imprisonment for a youthful offender shooting a BB gun at a residence is draconian. It is a sentence that far exceeds what is necessary to protect the public, condemn the offender's behaviour or discourage others from engaging in similar conduct. The need for denunciation is closely tied to the gravity of the offence (Ipeelee, at para. 37). Here, the offence's gravity is low and it is unreasonable to suggest an offender's conduct in this scenario greatly offends any basic moral values. General deterrence cannot support the minimum in this case either, since "a person cannot be made to suffer a grossly disproportionate punishment simply to send a message to discourage others from offending" (Nur, at para. 45). While this Court has generally noted the importance of denunciation and deterrence in firearms offences (Morrisey, at para. 46), this does not imply that these aims can be emphasized in cases involving firearms, particularly given the wide definition of firearms and where the offence poses little or no danger (as Nur itself illustrates, at paras. 82-84). Nor does the minimum show any respect for the principles of parity and proportionality. A four-year sentence for what is, at most, a minor form of mischief is totally out of sync with sentencing norms. Unlike the mandatory minimum sentences in Hilbach (see paras. 72-73 and 95), there is no justification for emphasizing denunciation and deterrence to a great extent in this scenario.
168A comparison between punishments imposed for other crimes of similar gravity and the mandatory minimum set in this case reveals great disproportion. Consider, for example, R. v. Pretty, 2005 BCCA 52, 208 B.C.A.C. 79, R. v. Schnare, [1988] N.S.J. No. 118 (QL), 1988 CarswellNS 568 (WL) (C.A.), and R. v. Cheung, Gee and Gee (1977), 5 A.R. 356 (S.C. (Trial Div.)), where in each case firing a pellet gun at a property was charged as a mischief offence and the offender received a sentence far below the mandatory minimum sentence mandated under s. 244.2(3)(b) (suspended sentence in Pretty; two months of incarceration, two years of probation and restitution in Schnare; and a suspended sentence and restitution in Cheung). The appellant in Pretty was a youthful offender who held animosity towards his neighbour and fired a BB gun at his neighbour's home. The sentencing judge suspended the passing of sentence and placed the offender on probation for 12 months. The British Columbia Court of Appeal dismissed the sentence appeal. In Schnare, the appellant was a young man who went on a shooting spree with a pellet gun and caused damage to several houses and moving vehicles. He was sentenced to two months of incarceration, two years of probation and several thousand dollars in restitution. The Nova Scotia Court of Appeal upheld his sentence. Finally, the three young defendants in Cheung were involved in the firing of a pellet gun at a business and nearby vehicles. Each received a 12-month suspended sentence and a restitution order. These comparable cases lead me to the same conclusion as the sentencing judge — a suspended sentence with up to 12 months' probation would be a fit sentence for the hypothetical offender (Court of Queen's Bench decision, at para. 19). A four-year mandatory minimum would be a grossly disproportionate punishment considering the nature of the offence committed by the reasonably foreseeable offender as compared to other crimes of similar gravity.
169For the above reasons, I find that s. 244.2(3)(b) is grossly disproportionate. It applies to an offence that captures a wide spectrum of conduct, ranging from acts that present little danger to the public to those that pose a grave risk. Its effect at the low end of the spectrum is as severe as the minimums in Nur and Lloyd. Denunciation and deterrence alone cannot support such a result. The punishment shows a complete disregard for sentencing norms and the mandatory prison term would have significant deleterious effects on a youthful offender. In light of these considerations, I agree with Mr. Hills that it would outrage Canadians to learn that an offender can receive four years of imprisonment for firing a paintball gun at a home.
170As the Crown does not advance any argument or evidence to demonstrate that this is one of the rare cases in which cruel and unusual punishment under s. 12 may be justified under s. 1 of the Charter, I need not address this issue.
F. Did the Court of Appeal of Alberta Err in Failing to Consider Mr. Hills' Gladue Report and his Métis Status in Re-Sentencing Him?
171Mr. Hills argues that the Court of Appeal failed to consider his Gladue report and his Métis status in re-sentencing him. He is asking this Court to reinstate the three-and-a-half-year sentence imposed by the sentencing judge.
172As I conclude that the sentencing judge did not err in finding that s. 244.2(3)(b) was unconstitutional, I see no basis to interfere with the sentence imposed on Mr. Hills by the sentencing judge. The parties do not argue the sentencing judge's sentence is demonstrably unfit, nor that he made any other error in principle which impacts the sentence. Moreover, sentencing decisions are entitled to a high level of deference on appeal (Lacasse, at paras. 11 and 67). As the Court of Appeal interfered with the sentencing judge's sentence after having found that s. 244.2(3)(b) was constitutional, it is therefore unnecessary to address this part of its reasons.
173In conclusion, the sentencing judge's sentence is reinstated and it is unnecessary to consider whether the Court of Appeal erred in failing to assess Mr. Hills' Gladue report and his Métis status.
G. Remedy
174Having concluded that s. 244.2(3)(b) infringes s. 12 and the infringement is not justified under s. 1 of the Charter, the mandatory minimum set out in this provision is immediately declared of no force or effect under s. 52(1) of the Constitution Act, 1982. The parties made no submissions on alternative remedies under the Charter when a breach of s. 12 occurs, such as those considered in Boudreault (at para. 103) and Bissonnette (at paras. 135-36).
VI. Conclusion
175For these reasons, I would allow the appeal. The judgment of the Alberta Court of Appeal is set aside. The mandatory minimum set out in s. 244.2(3)(b) of the Criminal Code is grossly disproportionate. It infringes s. 12 of the Charter and is not saved by s. 1. It is immediately declared of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982, and the declaration applies retroactively. The three-and-a-half-year sentence imposed on Mr. Hills by the sentencing judge is reinstated.
Dissenting Reasons
The following are the reasons delivered by
I. Introduction
176I agree with my colleague Martin J.'s affirmation of the two-stage framework for determining whether a mandatory minimum sentence violates s. 12 of the Canadian Charter of Rights and Freedoms. However, I respectfully disagree with her attempt to clarify the established framework through a new three-part test for gross disproportionality. I further disagree with her interpretation of s. 244.2(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, and her application of it to the hypothetical scenario posed by Mr. Hills at trial. In my view, the four-year mandatory minimum formerly imposed by s. 244.2(3)(b) of the Criminal Code does not violate s. 12.
II. Legal Framework
177The two-stage inquiry for determining whether a mandatory minimum sentence violates s. 12 of the Charter is well-established. It was affirmed eight months ago by a unanimous Court in R. v. Bissonnette, 2022 SCC 23, [2022] 1 S.C.R. 597. First, the court must determine "what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code" (Bissonnette, at para. 63, quoting R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 46). Second, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is "grossly disproportionate" to the sentence that would be fit and proportionate, either for the actual offender or for another offender in a reasonable hypothetical case (Bissonnette, at para. 63; Nur, at para. 46; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 23).
178In these companion appeals, my colleague endorses this two-stage "Nur" framework (Martin J.'s reasons, at paras. 3 and 40; R. v. Hilbach, 2023 SCC 3, [2023] 1 S.C.R. 116, at para. 34). But in seeking to provide "further guidance, direction and clarity" (Martin J.'s reasons, at para. 3), she has, in my respectful view, introduced regrettable uncertainty and confusion. At stage two of the Nur framework, my colleague sets out three "components that must be assessed": (1) the scope and reach of the offence; (2) the effects of the punishment on the offender; and (3) the "penalty" and its objectives (para. 122). Each of these considerations is relevant to determining a fit and proportionate sentence at stage one of the Nur framework. They do not tell us whether the statutorily-imposed minimum sentence is "grossly disproportionate", beyond merely excessive, in comparison to the length of what would be a fit and proportionate sentence for the offence.
III. Analysis
185Mr. Hills does not challenge the constitutionality of s. 244.2(3)(b) in relation to his own circumstances. Rather, he does so on the basis of a hypothetical offender put forth at trial. As such, it is necessary to begin by interpreting the scope of the charging provision, s. 244.2(1)(a), to determine the scope of conduct reasonably captured by the offence.
A. Interpretation of Section 244.2(1)(a)
188Unlike s. 244.2(1)(b), the text of s. 244.2(1)(a) does not expressly require an offender to be "reckless as to the life or safety of another person". However, for the reasons below, I conclude that both offences under s. 244.2(1) require, at minimum, a subjective appreciation of potential harm or danger to others. Contrary to the broad interpretation favoured by my colleague, the impugned provision is sufficiently narrow in scope to exclude grossly disproportionate sentences for the kind of conduct the law may reasonably be expected to catch.
189Section 244.2 of the Criminal Code was enacted in 2009, as part of Parliament's response to the intentional and reckless discharge of firearms. The Minister of Justice described the purpose of s. 244.2 as follows:
We also are proposing that a new offence be added to the Criminal Code which would target drive-by and other intentional shootings involving reckless disregard for the life or safety of others.
Currently offences available to prosecute these kinds of cases include careless use of a firearm or discharge of a firearm with intent to cause bodily harm. The negligence based offences do not appropriately capture the severity of a drive-by scenario which involves consciously reckless conduct.
Section 244 on the other hand requires proof that the firearm was discharged at a particular person with a specific intent to cause bodily harm, and this is not good enough. While more appropriate if the shooter does have a particular target, it can sometimes be difficult to prove a drive-by shooting scenario where the intent is to intimidate a rival gang, or in many cases the shooter may just be firing wildly without any particular target.
Our proposed offence [s. 244.2] will fill a gap in the Criminal Code and provide a tailored response to this behaviour. This new offence requires proof that the accused specifically turned his or her mind to the fact that discharging his or her firearm would jeopardize the life or safety of another person, and appreciating this fact, the accused still went ahead. Quite simply, these individuals just do not care.
(House of Commons Debates, vol. 144, No. 29, 2nd Sess., 40th Parl., March 12, 2009, at pp. 1687-88)
193Section 244.2(1)(a) has a double mens rea requirement: (1) the intentional discharge of a firearm; and (2) knowledge of or recklessness as to the presence of occupants. Accordingly, an offender cannot know, or even think, that "nobody is around" or be "thoughtless as to whether anyone is present" (Martin J.'s reasons, at paras. 159-60 (emphasis in original deleted)) when he intentionally discharges a firearm into or at a building or other place. Rather, he must know it is occupied or be reckless, which requires "knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur" (Sansregret v. The Queen, [1985] 1 S.C.R. 570, at p. 584). The culpability in recklessness is justified by consciousness of risk and proceeding in the face of it, a positive state of mind compared to negligence-based offences or "thoughtless[ness]" (Martin J.'s reasons, at para. 160). At minimum, then, an offender under s. 244.2(1)(a) must have knowledge of the risk of occupants and nonetheless proceed, in the face of that risk, to intentionally shoot into or at a building or other place.
B. Application of the Two-Stage Nur Framework
(2) Is a Four-Year Sentence Grossly Disproportionate to the Fit and Proportionate Sentence?
218The minimum four-year sentence imposed by s. 244.2(3)(b) would, at the floor of the range of fit and proportionate sentences, double the period of incarceration in reasonably foreseeable cases. The effects of this should not be minimized and may be devastating. However, I cannot conclude, as a constitutional matter, that this additional period of imprisonment would meet the high threshold established by this Court for cruel and unusual punishment.
219A sentence oversteps constitutional limits when it is grossly disproportionate, not merely excessive (Bissonnette, at para. 61). The sentence must be "so excessive as to outrage standards of decency" (Smith, at p. 1072, citing Miller, at p. 688, per Laskin C.J.; Lloyd, at para. 24), and "abhorrent or intolerable" to society (Boudreault, at para. 126, citing Lloyd, at para. 24; Smith, at p. 1072; Morrisey, at para. 26). As Chief Justice Wagner, writing for a unanimous Court, held more recently in Bissonnette, it must be "so excessive as to be incompatible with human dignity" (para. 60).
221In 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". The s. 12 threshold is necessarily high in cases where the issue is the length of the punishment, in contrast to punishments which are cruel and unusual by nature, such as torture or castration. I agree with Martin J., writing in the companion appeal in Hilbach, that Parliament is within its rights to emphasize the objectives of deterrence and denunciation in the context of firearms offences (para. 73). A firearm presents the "ultimate threat of death to those in its presence" (R. v. Felawka, [1993] 4 S.C.R. 199, at p. 211). This Court has repeatedly affirmed the denunciatory role of minimum sentences for conduct which offends our society's "basic code of values" (Morrisey, at para. 47; R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 81). The intentional shooting of such a life-threatening firearm into or at a building or other place, with knowledge of or recklessness as to the presence of occupants, is a clear example of conduct which offends Canadian society's basic code of values.
V. Conclusion
226Properly interpreted, s. 244.2(1)(a) captures offenders who intentionally shoot a firearm into or at a building or other place, knowing of or being reckless as to the presence of occupants, and who have thus turned their mind to the fact that discharging their firearm could jeopardize the lives or safety of others. In my view, a four-year minimum sentence for such conduct is not "so excessive as to outrage standards of decency" or "incompatible with human dignity" to rise to the level of cruel and unusual punishment under s. 12. I would dismiss Mr. Hills' appeal.
Appeal allowed, Côté J. dissenting.
Solicitors
Solicitors for the appellant: McKay Ferg, Calgary; TingleMerrett, Calgary.
Solicitor for the respondent: Alberta Crown Prosecution Service — Appeals and Specialized Prosecutions Office, Edmonton.
Solicitor for the intervener the Director of Public Prosecutions: Public Prosecution Service of Canada, Winnipeg.
Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto.
Solicitor for the intervener the Attorney General of Nova Scotia: Public Prosecution Service (NS) — Appeals and Special Prosecutions, Halifax.
Solicitor for the intervener the Attorney General of Saskatchewan: Ministry of Justice and the Attorney General for Saskatchewan, Regina.
Solicitors for the intervener the British Columbia Civil Liberties Association: Osler, Hoskin & Harcourt, Vancouver.
Solicitors for the intervener the Criminal Lawyers' Association (Ontario): Goddard & Shanmuganathan, Toronto; Addario Law Group, Toronto.
Solicitors for the intervener the Canadian Bar Association: Peck and Company, Vancouver.
Solicitors for the intervener the Canadian Civil Liberties Association: Stockwoods, Toronto.
