Court File and Parties

Court File No.: CR-23-367-0000 Date: 2024-05-23 Ontario Superior Court of Justice

Between: His Majesty The King, Crown And: Michael Hilaire, Defendant

Counsel: N. Sohail, for the Crown A. Tran and C. Fearon-Forbes, for the Defendant

Heard: May 3, 2024

Reasons for Sentence

Dennison J.

A. Overview

[1] Mr. Hilaire pled guilty to robbery with a firearm contrary to s. 344(1) (a) of the Criminal Code and wearing a disguise with intent to commit an indictable offence contrary to s. 351(2) of the Criminal Code.

[2] The parties put forth a joint position on sentence of 5 years imprisonment, which is the mandatory minimum sentence for the robbery offence, and 1 year imprisonment concurrent for the disguise with intent count. The parties agreed that Mr. Hilaire is entitled to have the five-year sentence reduced for the time spent in pre-trial custody pursuant to s. 719(3.1) of the Criminal Code.

[3] The only disagreement on the joint sentence is whether Mr. Hilaire is entitled to a further reduction in his sentence below the mandatory minimum sentence given the particularly harsh conditions he faced while in pre-trial custody. This is often referred to as “Duncan credit.”

B. Facts Admitted

[4] On January 28, 2023, Mr. Hilaire met up with his co-accused, Mr. Johnson-Pinnock, Mr. Brown, and Mr. Morrison. They were driving around in a white Hyundai Elantra.

[5] At approximately 2:56 p.m. they attended at the Century Stamps & Coins store in Mississauga.

[6] Mr. Hilaire exited the vehicle wearing his hoodie and a disguise to cover his face. He approached the victim assuming he owned the store. Mr. Hilaire was carrying a black handgun, a Glock 9 mm with a magazine that contained 10 live rounds of ammunition. He pointed the firearm at the victim and ordered him to open the door to the store. He forced the victim up the stairs pushing him against the railing near the door. The victim told Mr. Hilaire that he was just a customer and he could not let them in the store. Mr. Hilaire continued to point his firearm at the victim. After approximately one minute of trying to gain access into the store, Mr. Hilaire and the others fled back to the white Hyundai. There is video footage that shows the robbery.

[7] Mr. Hilaire got into the vehicle as a passenger and the vehicle drove away. The vehicle exited from Highway 403 onto Mavis Road. At that time, several police cruisers boxed in the vehicle. Mr. Hilaire fled the vehicle on foot. Police pursued him. He stopped running after a police cruiser cut onto the sidewalk and police arrested Mr. Hilaire.

C. Background of the Offender

[8] Mr. Hilaire was 19 years of age at the time of the offence. He is currently 20 years old. He was five credits away from graduating high school when the offence occurred. He has no criminal record.

[9] Mr. Hilaire has the love and support of his family and friends. His mother, father, grandmother, and siblings have been involved in his life and continue to support him despite the offence he committed.

[10] Mr. Hilaire expressed remorse for having committed this offence. He has had time to reflect on his actions and is remorseful for the harm he caused to the victims and to his family. He hopes to complete his high school education and pursue post-secondary school or enter a trade.

D. Impact on Victims

[11] The victims in this case did not provide a victim impact statement. The victims included the customer who was outside the store that day and the owner and family members who were present in the store at the time of the robbery. The harm to victims of robberies where firearms are used was noted by the Supreme Court of Canada in R. v. Hilbach, 2023 SCC 3, 477 D.L.R. (4th) 84, at para. 54, as follows:

Even if the weapon is not fired, exposure to this threat carries the risk of profound psychological harm. It can be expected that store clerks who are victims of offences like the one perpetrated by Mr. Hilbach will suffer psychological harm.

E. Legal Principles

[12] Section 718 of the Criminal Code sets out the purpose and objectives of sentencing as follows:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[13] Section 718.1 of the Criminal Code provides that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[14] Recently in R. v. Harasiuk, 2023 ONCA 594, the Court of Appeal reviewed the principles to apply when considering a joint position. The Court explained that joint positions are beneficial to the efficient administration of justice. They also provided a high degree of certainty to the Crown, accused, and victims. “That is why the test for departing from a joint submission is so stringent,” at para. 21.

[15] As explained by the Supreme Court of Canada in R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, at paras. 47-48, a sentencing judge must not reject a joint submission merely because they believe the sentence is unfit, or even demonstrably unfit. As Moldaver J. explained, the trial judge should not depart from a joint submission on sentence unless the proposed sentence “would bring the administration of justice into disrepute or would otherwise be contrary to the public interest,” at para. 5.

[16] In this case, the parties put forth a joint submission of five years’ imprisonment, which is the mandatory minimum sentence for the offence of robbery with a prohibited firearm.

[17] I accede to the joint position. The aggravating factors in this case include the fact that a group of men in a brazen daytime robbery pointed a loaded firearm at the victim.

[18] There are, however, several mitigating factors in this case:

• Mr. Hilaire is a young man. He is only 20 years old.
• He has no criminal record.
• He pled guilty demonstrating his remorse for his actions. His plea saved judicial resources and saved the victims from having to testify. I give considerable weight to this factor.
• He has good prospects for rehabilitation because he has the unwavering support of his family and church.
• He is also Black and therefore the Court must apply the relevant principles enunciated by the Court of Appeal in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, including the principle of restraint.

[19] For the above reasons, I accede to the joint position put forward. The sentence would not bring the administration of justice into disrepute nor would it be contrary to the public interest.

F. Credit for Presentence Custody

[20] The parties agree that Mr. Hilaire is entitled to 1.5 days credit for every day that he has served in presentence custody pursuant to s. 719(3.1) of the Criminal Code (referred to as “Summers” credit). This credit is to be deducted from the 5-year sentence: R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at para. 42; R. v. Arthurs, 2000 SCC 19, [2000] 1 S.C.R. 481.

[21] At the time of sentencing submissions, Mr. Hilaire had served 462 days in custody. The Court reserved the sentencing decision, so Mr. Hilaire has served a further 20 days. He therefore has spent 482 real days in custody. Mr. Hilaire is therefore entitled to credit of 723 days. He has 1,102 days remaining to serve for his sentence.

G. Credit for Harsh Conditions in Jail

[22] In R. v. Duncan, 2016 ONCA 754, the Court of Appeal held that in appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation beyond the 1.5 days credit granted pursuant to s. 719(3.1) of the Criminal Code. As noted above, this is commonly referred to as “Duncan credit.”

[23] The parties disagree whether Duncan credit can further reduce a sentence below the mandatory minimum sentence.

[24] The Crown submits that its position of 5 years imprisonment took into consideration all the mitigating factors, including the harsh conditions that the Mr. Hilaire spent in pre-sentence custody. In any event, Duncan credit cannot be used to impose a sentence below the mandatory minimum sentence.

[25] In R. v. Vassal, 2022 ONSC 3696, at paras. 34-37, Goldstein J. relied on the rationale applied in Wust and held that Duncan credit, like Summers credit, could be used to impose a sentence below the mandatory minimum sentence.

[26] The Crown submits the Court should not apply horizontal stare decisis because Goldstein J. did not have the benefit of the Supreme Court of Canada’s decision in Hilbach. In that case, the Court upheld the constitutionality of the 5-year mandatory minimum sentence for robbery using a prohibited or restricted firearm. The Crown submits that Hilbach clearly states that disproportionate sentences may result because of the mandatory minimum sentence.

[27] The Crown submits that Summers credit is a result of a statutory requirement. The pretrial custody credit may result in a sentence lower than the mandatory minimum sentence because the Courts read two statutory provisions harmoniously, as explained in Wust. In contrast, Duncan credit is a mitigating factor. It is not akin to Summers credit. The Court cannot use a mitigating factor to impose a sentence less than the mandatory minimum sentence.

[28] The Crown submits that the Court may not like mandatory minimum sentences, because they take away discretion in sentencing and may result in harsher sentences than otherwise may have been imposed. However, if the mandatory minimum sentence is constitutional, the Court does not have the discretion to lower the sentence based on the equities.

[29] The Defence submits that Mr. Hilaire should receive 6 months Duncan credit that should be deducted from the 5-year mandatory minimum sentence.

[30] The Defence submits that the Court should follow Goldstein J.’s decision in Vassal. The decision is well reasoned and there is no basis to depart from the principle of horizontal stare decisis.

[31] The Defence submits that the Court must start with considering all the relevant factors and remember that the primary principle in sentencing is to impose a proportionate sentence. This includes considering collateral consequences.

[32] The Defence submits that the principles articulated by Arbour J. in Wust are applicable to Duncan credit. Arbour J. held that if Summers credit could reduce a sentence below the mandatory minimum sentence, it would result in harsh and unjust sentences. It would reward the worst offenders as they could receive the reduction up to the point of the mandatory minimum sentence. In contrast, the least serious offenders would be penalized because they could not receive the benefit of a reduction below the mandatory minimum sentence. The Defence submits that the same principles apply to Duncan credit. If Duncan credit cannot reduce a sentence below the mandatory minimum sentence, then the worst offenders benefit; the credit can be applied to reduce their sentence but it could not be applied to the less serious offenders who would already receive the mandatory minimum sentence.

H. Does Horizontal Stare Decisis Apply?

[33] In R. v. Sullivan, 2022 SCC 19, 166 O.R. (3d) 638, at para. 75, the Supreme Court of Canada held that the principle of judicial comity, as well as the rule of law mean that prior decisions at the same level of Court should be followed unless one of the following exceptions applies:

• The rationale for an earlier decision has been undermined by a subsequent appellate decision;
• The earlier decision was reached per incuriam (“through carelessness” or by “inadvertence”);
• The earlier decision was not fully considered; or
• Narrow circumstances where arguments were not raised in the earlier case, or where there have been significant developments in the law or a change in the circumstances that fundamentally shifts the parameters of the debate. (Sullivan, at para. 80, referring to R. v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 42-45.)

[34] As noted above, in Vassal, Goldstein J. determined that the Court could grant Duncan credit to reduce a sentence below the mandatory minimum sentence. He relied on the rational in Wust, held that that Summers credit could reduce a sentence below the mandatory minimum sentence. He concluded that Duncan credit could reduce a sentence below the mandatory minimum sentence for two reasons. First, the refusal to grant credit for harsh conditions in custody would result in unjust and disproportionate sentences. Second, no principle of statutory interpretation requires the imposition of an unjust sentence. He stated,

[31] Failure to consider the collateral consequences could result in a sentence that is not fit because it might violate principle[s] set out in s. 718.2 (b) of the Criminal Code. That is the principle that sentences should be similar for similar offenders who commit offences under similar circumstances. Consider two similarly situated offenders, each charged with discharging a firearm with intent to wound, [maim], disfigure, or endanger life, contrary to s. 244(1) of the Criminal Code. One offender, like Mr. Vassal, is detained in custody because he does not have a good surety. Another has a good surety and receives bail. The detained offender (like Mr. Vassal) spends, say, 18 months in custody and then is found guilty. He is credited with 27 months in custody at the rate of 1.5:1. His warrant expiry date is 33 months away. An offender who has received bail has a warrant expiry date 60 months away. The difference, however, is that for 18 months, one offender was on bail and (even if on house arrest) had a degree of freedom and comfort. That offender could potentially take steps, such as education or employment, to achieve a degree of rehabilitation. The detained offender, in contrast, had little opportunity to work on rehabilitation – rehabilitative programs and opportunities in remand centres are certainly not of the same quantity or quality as those in federal penitentiaries. Moreover, if an offender spent time in a remand centre with high rates of lockdowns (and consequent denial of basic things such as showers and fresh air) the contrast with the offender on bail would be even greater. Add in the effects of the pandemic, which have been felt very keenly in jails, and you have a recipe for extremely harsh conditions of pre-sentence custody.

[35] It cannot have been Parliament’s intention that courts impose sentences that are unduly harsh – in other words, unjust sentences. Indeed, the fundamental principle of sentencing, set out in s. 718.1 of the Criminal Code, is that: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” An unjust sentence would obviously [be] disproportionate.

[35] Goldstein J. did not interpret the Court of Appeal’s decision in R. v. Marshall, 2021 ONCA 344, as restricting credit for harsh conditions in presentence custody for offences involving mandatory minimum sentences. The issue of credit for harsh presentence custody was not before the Court. However, he noted that he could not imagine the Court of Appeal endorsing a principle of sentencing that required imposing a disproportionate sentence that is too harsh.

[36] Goldstein J. did not have the benefit of the Supreme Court of Canada decision in Hilbach when he released his decision.

[37] In Hilbach, the Supreme Court of Canada held that the 5-year mandatory minimum sentence for robbery with a prohibited or restricted firearm did not violate s. 12 of the Charter.

[38] The Court applied a two-part test in determining if the mandatory minimum sentence is constitutional.

[39] The first step required the Court to determine a fit and proportionate sentence for the offender having regards to the objective and principles of sentencing. The Court held that a fit sentence for Mr. Hilbach would have been 3 years’ imprisonment. Mr. Hilbach committed an unsophisticated armed robbery of a convenience store. He pointed the rifle at two employees. He was on probation and subject to a weapon prohibition order at the time. He also involved a 13-year-old Indigenous youth in the offence.

[40] The second part of the inquiry required the Court to determine if the mandatory minimum sentence is grossly disproportionate when compared to the fit and proportionate sentence for either the offender before the Court or a reasonable hypothetical offender. In determining if the mandatory minimum sentence is grossly disproportionate, the Court considered the scope and reach of the offence, the effects on the offender, and the penalty: paras. 36-38.

[41] The majority of the Court held that the mandatory minimum sentence of 5 years, while harsh and close to the line, was not grossly disproportionate. The Court held that the scope and reach of the offence was limited and the offence caused significant trauma to the victims.

[42] The majority of the Court also considered the effects of the penalty on the offender. The Court agreed that the effects of the 5-year mandatory minimum sentence were “severe” in Mr. Hilbach’s case and would detrimentally impact his rehabilitation. The majority of the Court further recognized at para. 63, that as an Indigenous offender, Mr. Hilbach would serve harder time in prison and that “a fit and proportionate sentence would fall below the mandatory minimum” (emphasis in original).

[43] The Court concluded by finding that Parliament has the authority to prioritize deterrence and denunciation with respect to this offence provided that the sentence does not violate s. 12 of the Charter. As the Court explained,

[74] In the case of offenders like Mr. Hilbach, with reduced moral culpability due to, for example, developmental delays or a substance use disorder, the five-year mandatory minimum may exceed what is necessary to achieve Parliament’s sentencing objectives (Hills, at para. 138). In Mr. Hilbach’s case, a five-year minimum term in custody is a harsh punishment considering his personal circumstances.

[80] Despite its effect viewed through the lens of s. 718.2 (e), I am unable to conclude that the minimum sentence goes beyond what is necessary to achieve Parliament’s purpose such that it fails to reflect rehabilitation entirely and undermines human dignity. As noted, Parliament was justified in prioritizing denunciation and deterrence over rehabilitation, given the nature of this offence. And while the minimum sentence departs from principles of parity and proportionality in Mr. Hilbach’s case, it does not result in a sentence that is grossly disproportionate to the sentencing norms for this offence. [Emphasis added.]

[44] The decision in Hilbach makes it clear that Parliament’s use of mandatory minimum sentences may result in the imposition of sentences that are disproportionately harsh. Hilbach therefore undermines the rationale applied by Goldstein J.’s in determining that Duncan credit could reduce a sentence below the mandatory minimum. I therefore do not find that I am bound by Goldstein J.’s decision in Vassal.

I. Can Harsh Custodial Conditions be Used to Reduce a Sentence Below the Mandatory Minimum Sentence?

[45] I am satisfied that the Court cannot use exceptionally harsh custodial pre-trial custody to reduce a sentence below the mandatory minimum sentence for three reasons, which may be summarized as follows:

1. Summers credit is granted pursuant to s. 719(3.1) of the Criminal Code. In determining that Summers credit could reduce a sentence below the mandatory minimum sentence, the Supreme Court of Canada in Wust applied principles of statutory interpretation given the intersection of s. 719(3.1) and the mandatory minimum sentence. Duncan credit is not a statutorily mandated credit.
2. Duncan credit is conceptually different than s. 719(3.1) credit. It is a mitigating factor that the Court considers in determining the appropriate sentence before the Court deducts Summers credit.
3. Hilbach makes it clear that Parliament was entitled to pass the 5-year mandatory minimum sentence to forcefully express its policy of prioritizing denunciation and deterrence. The 5-year mandatory minimum sentence departs from principles of parity and proportionality.

1. Wust is a Case about Statutory Interpretation

[46] In Wust, the Supreme Court of Canada considered the intersection of the 4-year mandatory minimum sentence for robbery where a firearm is used and s. 719(3) of the Criminal Code. Section 719(3) used to read as follows:

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence. [Emphasis added.]

[47] Parliament amended section 719(3) in 2009, capping the credit the Court could give. It now reads:

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody.

[48] In Wust, Arbour J. held if credit pursuant to s. 719(3) was not permitted to be applied to mandatory minimum sentences it would result in unjust sentences and unequal treatment of offenders. As she stated,

[42] If this Court were to conclude that the discretion provided by s. 719(3) to consider pre-sentencing custody was not applicable to the mandatory minimum sentence of s. 344(a), it is certain that unjust sentences would result. First, courts would be placed in the difficult situation of delivering unequal treatment to similarly situated offenders: for examples, see McDonald, supra, at pp. 80-81. Secondly, because of the gravity of the offence and the concern for public safety, many persons charged under s. 344(a), even first time offenders, would often be remanded in custody while awaiting trial. Consequently, discrepancies in sentencing between least and worst offenders would increase, since the worst offender, whose sentence exceeded the minimum would benefit from pre-sentencing credit, while the first time offender whose sentence would be set at the minimum, would not receive credit for his or her pre-sentencing detention. An interpretation of s. 719(3) and s. 344(a) that would reward the worst offender and penalize the least offender is surely to be avoided.

[43] These examples of the absurd results we could expect from an exclusion of the application of s. 719(3) to mandatory minimum sentences, such as that provided by s. 344(a), are further indication that Parliament intended these two sections to be interpreted harmoniously and consistently within the overall context of the criminal justice system’s sentencing regime.

[49] Wust dealt with how to interpret two provisions in the Criminal Code in a harmonious manner consistent with principles of statutory interpretation. Unlike Summers credit, there is no statutory basis to grant credit for exceptional harsh conditions in pre-trial custody beyond s. 719(3.1).

2. Harsh Jail conditions are a Mitigating Factor

[50] In Duncan, the Court of Appeal recognized that additional credit for exceptionally harsh conditions in jail could be granted beyond credit granted pursuant to s. 719(3.1).

[51] In Marshall, at paras. 51-53, the Court of Appeal explained that Duncan credit is conceptually different and distinct from Summers credit. The Court explained that Duncan credit is a mitigating factor to consider in determining the appropriate sentence. A precise numerical number does not need to be articulated as a “credit.” In contrast, Summers credit is deducted after the appropriate sentence is determined. There is a mathematical calculation that is applied and the number of days of Summers credit must be reflected on the indictment. As the Court explained,

[51] It is also important to appreciate and maintain the clear distinction between the “Summers” credit and the “Duncan” credit. The “Summers” credit is a deduction from what the trial judge determines to be the appropriate sentence for the offence. The “Summers” credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence the accused has effectively served by virtue of the pretrial incarceration. The “Summers” credit is statutorily capped at 1.5:1. It is wrong to think of the “Summers” credit as a mitigating factor. It would be equally wrong to deny or limit the “Summers” credit because of some aggravating factor, such as the seriousness of the offence: R. v. Colt, 2015 BCCA 190.

[52] The “Duncan” credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit will be deducted. Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

[53] Often times, a specific number of days or months are given as “Duncan” credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the “Duncan” credit, only one of presumably several relevant factors, there is a risk the “Duncan” credit will be improperly treated as a deduction from the appropriate sentence in the same way as the “Summers” credit. If treated in that way, the “Duncan” credit can take on an unwarranted significance in fixing the ultimate sentence imposed: R. v. J.B. (2004), 187 O.A.C. 307 (C.A.). Arguably, that is what happened in this case, where on the trial judge’s calculations, the “Duncan” credit devoured three-quarters of what the trial judge had deemed to be the appropriate sentence but for pretrial custody.

[52] Duncan credit is therefore a mitigating factor that the Court considers in determining the appropriate sentence.

[53] It is no different from the Court considering granting credit for stringent bail conditions in determining an appropriate sentence, which is permitted pursuant to R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.), at para. 33.

[54] As explained in Downes, the amount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge to consider in determining the appropriate sentence. The same applies to Duncan credit. It is not necessary for the Court to apply a mathematical formula. The amount and manner in which harsh conditions spent in presentence custody are considered is a matter for the trial judge to consider in determining the appropriate sentence.

[55] In R. v. Panday (2007), 2007 ONCA 598, 87 O.R. (3d) 1, the majority of Court of Appeal held that Downes credit cannot be deducted to impose a sentence below the mandatory minimum sentence. As explained by McPherson J.A. for the majority, at para. 27,

The reality is that when a person is convicted of an offence that carries a minimum sentence, the sentencing judge does not engage in the usual balancing of aggravating and mitigating factors to arrive at an appropriate sentence. Indeed, the statutory minimum sentence specifically excludes such a balancing up to the point of the minimum sentence.

[56] Similarly, Duncan credit cannot be used to impose a sentence below the mandatory minimum sentence. Duncan credit is a mitigating factor that the Court may consider in determining an appropriate sentence. Mitigating factors cannot be used to impose a sentence below the mandatory minimum sentence.

3. Hilbach Recognizes that Mandatory Minimum Sentences May Result in Harsh Sentences in Certain Circumstances

[57] The Defence’s argument that Duncan credit can be used to impose a sentence below the mandatory minimum sentence is primarily based on the rationale from Wust that to deny such credit will result in unjust and disproportionate sentences. The worst offender is rewarded because they get the benefit of Duncan credit but the least offender does not. As such, to deny the granting of credit below the mandatory minimum sentence is unfair and would result in disproportionate sentences.

[58] The difficulty with the Defence’s argument is that the unfairness and lack of proportionality are an inherent byproduct of mandatory minimum sentences. Mandatory minimum sentences by their very nature take away the Court’s discretion to impose fit and proportionate sentences below the mandatory minimum sentence.

[59] Section 12 of the Charter recognizes that Parliament may pass mandatory minimum sentences that prioritize the goals of denunciation and deterrence provided that the mandatory sentence is not grossly disproportionate.

[60] Hilbach demonstrates that given this high threshold, disproportionate sentences may result for offenders where an otherwise fit and appropriate sentence would be below the mandatory minimum sentence. Hilbach also demonstrates that mitigating factors cannot be used to impose a sentence below the mandatory minimum sentence.

[61] In Hilbach, the majority of the Supreme Court of Canada held that a fit and proportionate sentence for Mr. Hilbach would have been 3 years imprisonment for robbing a convenience store with a loaded rifle.

[62] Mr. Hilbach was also Indigenous. Section 718.2 (e) of the Criminal Code requires the Court to consider the unique situation of Indigenous offenders and to consider all available sanctions other than imprisonment. While this is a statutory factor, the Court did not find that this factor could be used to impose a sentence below the mandatory minimum sentence. The Court explained that the Gladue factors had to be considered in determining what would be a fit and proportionate sentence at the first stage of the s.12 Charter analysis. The Court also held that the Court may consider scenarios involving Indigenous offenders in crafting reasonably foreseeable hypotheticals. Finally, the Indigeneity of an offender is relevant in determining if the sentence is grossly disproportionate, as it is a core part of Canada’s sentencing principles.

[63] The Court recognized that the mandatory minimum sentence for Mr. Hilbach was “harsh,” “severe” and that the mandatory minimum sentence “departs from principles of parity and proportionality in Mr. Hilbach’s case” (at para. 80). The Court nonetheless held that the 5-year mandatory minimum sentence, while close to the line, was not grossly disproportionate. The Court sentenced Mr. Hilbach to 5 years’ imprisonment.

[64] There is a fundamental unfairness with mandatory minimum sentences as it relates to considering any mitigating factor. One can envision a reasonable, hypothetical worse Indigenous offender than Mr. Hilbach where a fit and appropriate sentence would be above the 5-year mandatory minimum sentence. That offender would be able to have their Indigeneity considered as a factor in determining the fit sentence and the sentence imposed could be lower than it otherwise would have been. In contrast, Mr. Hilbach’s Indigeneity cannot be used reduce the sentence below the 5-year mandatory minimum sentence. That is the harsh reality of mandatory minimum sentences as the law currently exists.

[65] Aside from the statutory credit in s. 719(3.1), or a constitutional challenge striking the section down, the only other viable way that a sentence below the mandatory minimum sentence may be possible to be imposed is pursuant to s. 24(1) of the Charter. The Supreme Court of Canada in R. v. Nasogaluak, 2010 SCC 6, [2010] 2 S.C.R. 206, did not foreclose the possibility that in some exceptional cases a reduction below the mandatory minimum sentence may be appropriate for egregious state misconduct. However, as noted by the Ontario Court of Appeal in R. v. Donnelly, 2016 ONCA 988, 135 O.R. (3d) 336, the Supreme Court did not explain how this could be reconciled by the Court’s decision in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, which held that there are no constitutional exemptions when dealing with mandatory minimum sentences. It was not alleged that this is an exceptional case were the state misconduct rose to the level of a s. 24(1) Charter breach.

J. Conclusion

[66] I find that the Court must treat Duncan credit the same as any other mitigating factor in determining the appropriate sentence and therefore cannot be used to impose a sentence below the mandatory minimum sentence. Duncan credit is not akin to the credit that is statutorily mandated in s. 719(3.1) of the Criminal Code. The Supreme Court upheld the constitutionality of the 5-year mandatory minimum sentences for robbery with a prohibited or restricted firearm. One of the inevitable consequences of the mandatory minimum sentence is that mitigating factors have no role in sentencing an offender below the mandatory minimum sentence. The Court is therefore constrained from giving Mr. Hilaire credit for the unduly harsh conditions he has faced while in pre-trial custody below the mandatory minimum sentence.

[67] Mr. Hilaire is sentenced to 5 years in prison on count 1. He is to receive 723 days credit for presentence custody pursuant to s. 719(3.1) of the Criminal Code. He therefore has a remaining 1,102 days to serve in prison. Mr. Hilaire is also sentenced to 1 year on count 2 to be served concurrent to count 1.

[68] The Court is also issuing a weapons prohibition order for ten years pursuant to s. 109(2) (a) of the Criminal Code and a weapons prohibition order for life pursuant to s. 109(2)(b) of the Criminal Code.

[69] Finally, a DNA order is issued pursuant to s. 487.051 of the Criminal Code.

Dennison J. Released: May 23, 2024