Jesse Dallas Hills Appellant v. His Majesty The King, 2023 SCC 2

SUPREME COURT OF CANADA Citation: R. v. Hills, 2023 SCC 2 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. Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports .

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 File No.: 39338. 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 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 (C ôté 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.

B ecause 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, c ourts 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. T here 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, rangingfrom acts that present little danger to the public to those that pose a grave risk. The mandatory punishment would have significantdeleterious effects on youthful offenders, who are viewed as having high rehabilitative prospects. Therefore, the mandatory minimum’seffect is extremely severe as it replaces a probationary sentence with four years of imprisonment.

A four-year custodial sentence is soexcessive as to be significantly out of sync with sentencing norms and goes far beyond what is necessary for Parliament to achieve itssentencing goals for this offence. Denunciation and deterrence cannot support the minimum punishment, nor does the minimum showany respect for the principles of parity and proportionality. It would outrage Canadians to learn that an offender can receive four years ofimprisonment for firing a paintball gun at a home.

As the Crown does not advance any argument or evidence to demonstrate that thepunishment 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 bys. 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 minimumsentence violates s. 12. Courts must: (1) determine what constitutes a proportionate sentence for the offence, having regard to theobjectives and principles of sentencing; and (2) ask whether the mandatory minimum sentence is grossly disproportionate to the sentencethat 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-parttest for gross disproportionality. The majority sets out three components to be assessed at stage two of the framework: (1) the scope andreach of the offence; (2) the effects of the punishment on the offender; and (3) the penalty and its objectives. Each of these duplicatesconsiderations relevant to determining the low end of the range of fit and proportionate sentences for the offence at stage one.

At thesecond 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 normativejudgment. There is also disagreement with the majority’s

interpretation of s. 244.2(1)(

a) of the Criminal Code. Parliament did notintend s. 244.2 to capture the reckless discharge of firearms in situations which present little danger to the public. Rather, it targetedoffenders who specifically turned their mind to the fact that discharging their firearm would jeopardize the lives or safety of others. Theactus reus of the offence, on its own, would extend to a wide range of conduct. But the scope of the offence is narrowed significantly byits mental element. The double mens rea requirement of s. 244.2(1)(

a) captures only offenders who (1) intentionally discharge a firearminto or at a building or other place, with (2) knowledge of or recklessness as to the presence of occupants — and thus, who have turnedtheir mind to the fact that shooting the firearm could put the lives or safety of others at risk. This

interpretation, consistent with that ofprevious 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 hypotheticalair-powered rifle scenario put forth by the accused at trial does not, without more, involve the kind of conduct that the law mayreasonably be expected to catch. This scenario is crafted primarily on the offence’s actus reus. There is no sufficient basis on which toconclude that the requisite mens rea would be satisfied. Missing from the hypothetical is whether the offender turned his mind to thepresence of occupants, and the corresponding risk to lives or safety.

The majority’s position, which depends on the presence of aresidential wall to protect occupants, ignores the possibility that bullets could go through a window or door, psychological effects onoccupants or neighbours, and the risk of escalating violence. Intentionally shooting any firearm — which, by definition, must be capableof causing serious injury or death — into or at a building or other place, with knowledge of or recklessness as to the presence ofoccupants, 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 inreasonably foreseeable applications of s. 244.2(1)(a). The minimum four-year sentence imposed by s. 244.2(3)(

b) would double thisperiod of incarceration. The effects of this should not be minimized and may be devastating. However, as a constitutional matter, thisadditional period of imprisonment does not meet the high threshold established by the Court for cruel and unusual punishment. Amandatory minimum sentence oversteps constitutional limits when it is grossly disproportionate, beyond merely excessive. It is only onrare occasions that the Court has found a minimum sentence to violate s. 12, in contrast to punishments which are cruel and unusual bynature such as torture or castration.

Parliament is within its rights to emphasize the objectives of deterrence and denunciation in thecontext of firearms offences. The Court has repeatedly affirmed the denunciatory role of minimum sentences for conduct which offendsour society’s basic code of values. The intentional shooting of a life-threatening firearm into or at a building or other place, withknowledge 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 notresulted 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) onlycaptures intentional shootings which are highly blameworthy and antithetical to the peace of the community. A four-year minimumsentence is not so excessive as to outrage standards of decency or incompatible with human dignity to rise to the level of cruel andunusual 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; R. v. Boudreault, 2018SCC 58, [2018] 3 S.C.R. 599; R. v. Goltz, (SCC), [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; Vézina v.

R., 2018 QCCA 739; Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1S.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, (SCC), [1999] 1 S.C.R. 688; R. v. Smith, (SCC), [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, (SCC), [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 SCC18, [2000] 1 S.C.R. 455; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. Parranto, 2021 SCC 46; 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. Wilmott(1966), (ON CA), 58 D.L.R. (2d) 33; R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309; R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500; R. v. Priest (1996), (ON CA), 30 O.R. (3d) 538; R. v.

Safarzadeh-Markhali, 2016SCC 14, [2016] 1 S.C.R. 180; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Hamilton (2004), (ON CA),72 O.R. (3d) 1; R. v. Martineau, (SCC), [1990] 2 S.C.R. 633; R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496; R. v.Bottineau, 2011 ONCA 194, 269 C.C.C. (3d) 227; R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728; R. v. Shoker, 2006 SCC 44, [2006]2 S.C.R. 399; R. v. Lee, 2012 ABCA 17, 58 Alta. L.R. (5th) 30; R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227; R. v.Muise (1994), 1994 NSCA 198 , 94 C.C.C. (3d) 119; R. v.

Heywood, (SCC), [1994] 3 S.C.R. 761; R. v.Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754; R. v. Ndhlovu, 2022 SCC 38; R. v. Big M Drug Mart Ltd., (SCC),[1985] 1 S.C.R. 295; Miller v. The Queen, (SCC), [1977] 2 S.C.R. 680; Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486; Steele v. Mountain Institution, (SCC), [1990] 2 S.C.R. 1385; R. v. Lyons, (SCC), [1987] 2 S.C.R. 309; R. v. McDonald (1998), (ON CA), 40 O.R. (3d) 641; R. v. Stone, (SCC), [1999] 2 S.C.R. 290; R. v. Smith, 2019 SKCA 100, 382 C.C.C. (3d) 455; R. v. Salehi, 2022 BCCA 1; R. v. Nuttall, 2001 ABCA277, 293 A.R. 364; R. v.

A.R. (1994), (MB CA), 92 Man. R. (2d) 183; R. v. Adamo, 2013 MBQB 225, 296 Man. R.(2d) 245; R. v. Wallace (1973), (ON CA), 11 C.C.C. (2d) 95; R. v. A.F. (1997), (ON CA), 101O.A.C. 146; R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643; R. v. Marfo, 2020 ONSC 5663; 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 SCC33, [2002] 2 S.C.R. 235; Sansregret v. The Queen, (SCC), [1985] 1 S.C.R. 570; R. v. Nassri, 2015 ONCA 316, 125 O.R.(3d) 578; R. v. Mohenu, 2019 ONCA 291; R. v.

Tan, 2008 ONCA 574, 268 O.A.C. 385; R. v. T. (K.), 2008 ONCA 91, 89 O.R. (3d) 99;R. v. Brown, 2015 ONCA 361, 126 O.R. (3d) 797; R. v. Laine, 2015 ONCA 519, 338 O.A.C. 264; R. v. Pretty, 2005 BCCA 52, 208B.C.A.C. 79; R. v. Schnare, [1988] N.S.J. No. 118 (QL), 1988 CarswellNS 568 (WL); R. v. Cheung, Gee and Gee (1977), 5 A.R. 356. By Côté J. (dissenting) R. v. Bissonnette, 2022 SCC 23; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R.130; R. v. Hilbach, 2023 SCC 3; R. v. Smith, (SCC), [1987] 1 S.C.R. 1045; Miller v. The Queen, (SCC),[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, (SCC), [1993] 2 S.C.R. 398; Sansregret v. The Queen, (SCC), [1985] 1 S.C.R. 570; R. v. Oud, 2016 BCCA 332, 339 C.C.C. (3d) 379; R. v. Itturiligaq, 2020 NUCA 6; 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); R. v. Cheung, Geeand Gee (1977), 5 A.R. 356; R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. McMillan,2016 MBCA 12, 326 Man. R. (2d) 56; R. v.

Lyta, 2013 NUCA 10, 561 A.R. 146; Steele v. Mountain Institution, (SCC),[1990] 2 S.C.R. 1385; R. v. Guiller (1985), (ON SC), 48 C.R. (3d) 226; R. v. Felawka, (SCC), [1993]4 S.C.R. 199; R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500; R. v. Lyons, (SCC), [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). Criminal Code, R.S.C. 1985, c.

C-46, ss. 2 “firearm”, 84(3)(d)(i), 244.2, (2) “place”, (3)(b) [repl. 2022, c. 15, s. 11], 344(1)(a)(i), (a.1)[rep. 2022, c. 15, s. 12], 718, 718.1, 718.2(a)(i), (e). Firearms Act, S.C. 1995, c. 39. Youth Criminal Justice Act, S.C. 2002, c. 1, s. 38. Authors Cited Berger, Benjamin L. “Proportionality and the Experience of Punishment”, in David Cole and Julian Roberts, eds., Sentencing in Canada:Essays in Law, Policy, and Practice. Toronto: Irwin Law, 2020, 368. Cairns Way, Rosemary. “A Disappointing Silence: Mandatory Minimums and Substantive Equality” (2015), 18 C.R. (7th) 297. Canada.

Canadian Sentencing Commission. Sentencing Reform: A Canadian Approach. Ottawa, 1987. Canada. Department of Justice. Research and Statistics Division. Spotlight on Gladue: Challenges, Experiences, and Possibilities inCanada’s Criminal Justice System. Ottawa, 2017. Canada. House of Commons. House of Commons Debates, vol. 144, No. 29, 2nd Sess., 40th Parl., March 12, 2009, pp. 1687-88, 1702. Canada. House of Commons. House of Commons Debates, vol. 144, No. 45, 2nd Sess., 40th Parl., April 24, 2009, p. 2675. Canada. Office of the Correctional Investigator.

A Case Study of Diversity in Corrections: The Black Inmate Experience in FederalPenitentiaries. Ottawa, 2013. Canada. Office of the Correctional Investigator and Office of the Provincial Advocate for Children and Youth. Missed Opportunities:The Experience of Young Adults Incarcerated in Federal Penitentiaries. Ottawa, 2017.

Canada. Senate. Debates of the Senate , vol. 146, No. 31, 2nd Sess., 40th Parl., May 5, 2009, pp. 732-33. Chaster, Sarah. “Cruel, Unusual, and Constitutionally Infirm: Mandatory Minimum Sentences in Canada” (2018), 23 Appeal 89. Fehr, Colton. “Tying Down the Tracks: Severity, Method, and the Text of

Section 12 of the Charter ” (2021), 25 Can. Crim. L.R. 235. Kerr, Lisa. “Sentencing Ashley Smith: How Prison Conditions Relate to the Aims of Punishment” (2017), 32 C.J.L.S. 187. Kerr, Lisa, and Benjamin L. Berger. “Methods and Severity: The Two Tracks of

Section 12” (2020), 94 S.C.L.R. (2d) 235 . Mangat, Raji. More Than We Can Afford: The Costs of Mandatory Minimum Sentencing . Vancouver: British Columbia Civil Liberties Association, 2014. Ruby, Clayton C. Sentencing , 10th ed. Toronto: LexisNexis, 2020. Stuart, Don. “ Boudreault : The Supreme Court Strikes Down Mandatory Victim Surcharges to Protect Vulnerable Offenders” (2019), 50 C.R. (7th) 276 . Sullivan, Ruth. The Construction of Statutes , 7th ed. Toronto: LexisNexis, 2022. 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. 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. The judgment of Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ. was delivered by Martin J. — I. Introduction [ 1 ] This appeal, and the companion appeal of R. v. Hilbach , 2023 SCC 3 , 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. [ 2 ] In 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. [ 3 ] This 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 . 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. [ 4 ] In 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. [ 5 ] In 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 [ 6 ] Mr. 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. [ 7 ] After 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.

[8] The actus reus of s. 244.2(1)(

a) requires that an offender discharge a firearm into or at a “place” (as defined bys. 244.2(2)). It is significant, for this appeal, that “place” has a very wide meaning: it includes “any building or structure”, whichencompasses anything from a windowless garden shed to a residential home. The mens rea for this offence contains two maincomponents. First, the offender must intentionally discharge the firearm into or at a place. Second, in intentionally discharging thefirearm 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 isdischarged, only that the firearm be discharged into or at a place (para. 46). Thus, there is no requirement for a person to even be presentwhen the firearm is discharged. [9] Mr. Hills committed his offence using a hunting rifle, which is classified as an ordinary firearm. As a result, he wassubject 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 mandatoryminimum sentence in question, it is necessary to review the meaning of a “firearm” under the Criminal Code and Canada’s regulatoryscheme for firearms. B. The Applicable Firearms Regime [10] Parliament regulates firearms through a variety of legislation including the licensing and registration regime in theFirearms 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, atpara. 6; Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783).

This legislation forms the background to this appeal andgiven its complexity, it is important to appreciate its operation before turning to Mr. Hills’ challenge. [11] To start, s. 244.2(1)(

a) incorporates the Criminal Code definition of a firearm.

Section 2 of the Criminal Codegenerally defines a “firearm” as “a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capableof causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that canbe adapted for use as a firearm”. While firearms are defined as “weapons”, they do not need to meet the Criminal Code definition of aweapon (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). [12] Courts rely on the “pig’s eye test” to determine whether a barrelled weapon is capable of causing serious bodilyinjury or death and thus meets the definition of a “firearm” in the Criminal Code (Dunn, at paras. 8 and 40). The test asks whether aprojectile fired from the device can rupture a pig’s eye, which is physiologically similar to a human eye (para. 8).

Since a ruptured eye isa “serious bodily injury”, a “firearm” is any barrelled, projectile-firing device capable of putting someone’s eye out (paras. 8 and 40). Asthe expert evidence on this appeal establishes, some air-powered devices, like BB guns, airsoft guns, and paintball guns, are capable offiring projectiles with enough velocity to rupture a pig’s eye. As a result, they can be classified as firearms under the Criminal Code. [13] However, some air-powered devices that are “firearms” for the purposes of the Criminal Code are not subject to theFirearms 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, thefollowing 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 . . . . [14] Under s. 84(3)(d)(i), some air-powered devices that meet the pig’s eye test and constitute firearms under theCriminal 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 firearmslicence. [15] The 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 apaintball gun at a shed. This offender would then be subject to the four-year mandatory minimum. While s. 244.2(1)(

a) may typicallyapply where an ordinary firearm is used (like Mr. Hills’ hunting rifle), it is possible for an offender to be convicted for using devices thatare not known to inflict deadly force, like paintball guns. As I explain, this possibility underlies the constitutional frailty of themandatory minimum at issue here. III. Facts and Judicial History [16] During an incident on May 6, 2014, Mr. Hills attacked two vehicles and a residence. In the hours prior to theincident, Mr. Hills consumed a large volume of prescription medication and alcohol.

Around midnight, while intoxicated, he left hishome in Lethbridge, Alberta with a loaded .303 Enfield bolt action rifle and a baseball bat. The rifle was designed for big game hunting. [17] Mr. Hills proceeded to swing his bat at a passing car before firing a shot at it. The driver called 9-1-1. Before policearrived, Mr. Hills turned his attention to an unoccupied parked car, and smashed its windows with the bat. Mr. Hills then approached anew target: a residential home. He fired a round that went through the home’s living room window and through a wall into a computer

room before it stopped in a drywall stud and bookcase. [ 18 ] At the time Mr. Hills fired his shots, the home was occupied by two parents and their two children. The father was sitting in the computer room when Mr. Hills fired his first shot. The father left the computer room to investigate and heard another shot. He ran to alert the mother and pressed the panic alarm on his security system. He then heard what sounded like Mr. Hills trying to break through the front door. The father opened the door and yelled at Mr. Hills to get away. As the father grabbed an axe to defend himself, Mr.

Hills fired again. [ 19 ] The father managed to retreat and call 9-1-1. He went to the basement with the rest of his family where they waited for police to arrive. When police arrived, they discovered several rounds had penetrated the home. The rounds were fired into areas of the home where a person could have been standing and hit. [ 20 ] After a preliminary inquiry, Mr. Hills pled guilty to four offences: discharging a firearm into or at a house contrary to s. 244.2(1) (

a) of the Criminal Code , pointing a firearm at the occupant of a car, possession of a firearm without a licence, and mischief to property under $5,000. Mr. Hills was unable to recollect the events or the motive for his actions. A. Alberta Court of Queen’s Bench, 2018 ABQB 945 , 79 Alta. L.R. (6th) 161 [ 21 ] At sentencing, Mr. Hills brought a challenge under s. 12 of the Charter to the mandatory minimum sentence of four years of imprisonment for intentionally discharging a non-restricted firearm into or at a house imposed by s. 244.2(3)(b).

He argued that such a mandatory minimum sentence was grossly disproportionate in reasonably foreseeable scenarios and, therefore, constituted cruel and unusual punishment. [ 22 ] Mr. Hills relied on a scenario where the hypothetical culprit discharged a firearm that was incapable of penetrating a typical residential wall. A firearms expert, called on Mr.

Hills’ behalf, tested eight different types of air-powered pistols or rifles and concluded that while they met the Criminal Code definition of a firearm, many of them were incapable of penetrating the wall of a house. [ 23 ] The sentencing judge, in light of the expert evidence, agreed that s. 244.2(3)(

b) was grossly disproportionate in the reasonably foreseeable scenario where “a young person intentionally discharges an air-powered pistol or rifle such as an airsoft pistol, BB gun, paintball marker, .177 calibre pellet rifle, a .22 calibre pellet pistol or pellet rifle at a residence” (para. 14). The culprit in this situation clearly committed an offence of lesser gravity than the other conduct caught by the provision: the behaviour was of low moral blameworthiness and the risk of harm was also low.

He concluded the infringement of s. 12 could not be justified under s. 1 of the Charter . [ 24 ] Having concluded the mandatory minimum was unconstitutional, in a subsequent oral decision, the sentencing judge imposed a sentence of three and a half years of incarceration for Mr. Hills. B. Alberta Court of Appeal, 2020 ABCA 263 , 9 Alta. L.R. (7th) 226 [ 25 ] The Crown appealed both the finding that s. 244.2(3) (

b) infringed s. 12 of the Charter and Mr. Hills’ sentence. The Alberta Court of Appeal allowed the appeal on both grounds, with each justice writing separately. [ 26 ] Justice Antonio concluded the expert evidence was insufficient to establish the low gravity of the scenario considered by the sentencing judge. The expert did not exclude the possibility that rounds fired from an air-powered pistol or rifle could travel through a door or window. Nor had the sentencing judge accounted for the psychological harms flowing from the scenario.

Regardless of the physical risk, psychological and social harm was inherent in the reckless use of a firearm. She distinguished Nur , reasoning that if it was not grossly disproportionate to impose a 40-month sentence on a 19-year-old who possessed a loaded firearm in public, it was surely not grossly disproportionate to impose a 4-year sentence where a firearm was actually discharged. In re-sentencing Mr. Hills, she concluded that the sentencing judge had underestimated the gravity of the offence and concluded an appropriate sentence was four and a half years of imprisonment.

She, however, reduced the sentence to the minimum of four years to account for the time spent on appeal. She stayed the execution of the post-appeal portion of his sentence. [ 27 ] Justice O’Ferrall agreed with Antonio J.A. that s. 244.2(3) (

b) complied with the Charter and with Antonio J.A.’s decision to impose the minimum sentence. Justice O’Ferrall added that this Court’s s. 12 jurisprudence ought to be revisited. He was troubled with the “air of unreality” associated with the use of “reasonable hypotheticals” and reasoned the s. 12 analysis should proceed based solely on the offender before the court (para. 103). Further, he questioned whether a grossly disproportionate sentence was an adequate measure of cruel and unusual punishment.

Proportionality is not the fundamental purpose of sentencing and it is foreseeable that a grossly disproportionate sentence could sometimes be justified. [ 28 ] Justice Wakeling joined O’Ferrall J.A. in calling for the Court to revisit its s. 12 jurisprudence. Justice Wakeling concluded s. 12 protects only against cruel and unusual punishment. Put differently, it does not protect against “usual” punishments, like imprisonment. Consequently, a “grossly disproportionate” prison sentence cannot engage s. 12 .

He criticized reasonable hypotheticals, reasoning that since s. 12 protects against an offender being subjected to cruel and unusual punishment, its plain language means an offender can only challenge the particular sentence to which they are subject. He added the method of reasonable hypotheticals would leave Canadians “aghast” that adjudicators rely on “make-believe” scenarios to evaluate the constitutionality of a sentencing provision (para. 263). Justice Wakeling went on to note that the results of Canadian sentencing are irrational and indefensible, which militate in favour of a narrow construction of s. 12.

Applying his own personal method of fixing sentences, he would have sentenced Mr. Hills to approximately 5.9 years of imprisonment. IV. Issues [ 29 ] This appeal raises two questions. First, whether the mandatory minimum sentence mandated by s. 244.2(3) (

b) of the Criminal Code constitutes cruel and unusual punishment such that it violates s. 12 of the Charter . Second, whether the Alberta Court of

Appeal erred in failing to consider Mr. Hills’ Gladue report and his Métis status in re-sentencing him. V. Analysis [30] Mr. Hills concedes the mandatory minimum sentence is not grossly disproportionate on the facts of his case. Heargues, however, that this high bar is met in reasonably foreseeable scenarios in which other differentially situated reasonably foreseeableoffenders are likely to be involved. In particular, he says it is met in the hypothetical case of a youthful offender who fires an air-poweredpistol or rifle at a house.

The Crown concedes this scenario is reasonably foreseeable, but maintains the mandatory minimum sentence isnot grossly disproportionate in this hypothetical. Before turning to Mr. Hills’ arguments, I will clarify the applicable framework for achallenge to a mandatory minimum sentence under s. 12 and address the proposals for revising this framework advanced by the Crown,several interveners, and the Court of Appeal. A. The Protection Against Cruel and Unusual Punishment Under

Section 12 of the Charter [31]

Section 12 of the Charter grants individuals a right not to be subjected to any cruel and unusual treatment orpunishment by the state. As a threshold issue, an impugned measure must initially qualify as “treatment” or “punishment” to fall withins. 12.

State action amounts to punishment where it: “(1) . . . is a consequence of conviction that forms part of the arsenal of sanctions towhich an accused may be liable in respect of a particular offence, and either (2) . . . is imposed in furtherance of the purpose andprinciples of sentencing, or (3) . . . has a significant impact on an offender’s liberty or security interests” (Bissonnette, at para. 57, citingR. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, at para. 39, quoting R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 41).Despite the views of O’Ferrall and Wakeling JJ.A., s. 12 is engaged here.

This Court has consistently held that imprisonment, the “penalsanction of last resort”, clearly constitutes punishment (under both ss. 11 and 12 Charter jurisprudence) (R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, at para. 36; see R. v. Smith, (SCC), [1987] 1 S.C.R. 1045, at p. 1077; Nur; R. v. Poulin,2019 SCC 47, [2019] 3 S.C.R. 566, at para. 40). [32] The underlying purpose of s. 12 is “to prevent the state from inflicting physical or mental pain and suffering throughdegrading 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 intrinsicworth and is therefore entitled to respect, irrespective of their actions (Bissonnette, at para. 59). [33] The 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, (SCC), [1990] 2 S.C.R. 711, R. v. Goltz, (SCC), [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] 1S.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 alloffences was struck down in Boudreault; a mandatory weapons prohibition order was upheld in R. v. Wiles, 2005 SCC 84, [2005] 3S.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] 1S.C.R. 3. [34] In Bissonnette, this Court invalidated the stacking of periods of parole ineligibility in cases of multiple murderconvictions and reaffirmed and consolidated the well-established analytical approach under s. 12. Chief Justice Wagner, writing for aunanimous Court, emphasized the need for a purposive Charter

interpretation which is generous and aimed at securing the full benefitsof Charter protections for individuals (para. 98). Based on the purpose of s. 12, he concluded that a sentence that entirely negates thepenal objective of rehabilitation violates human dignity and, therefore, contravenes s. 12 in a manner which could not be saved under s. 1(para. 8). [35] Bissonnette also confirmed that s. 12 has two prongs that are united by their shared animating purpose ofsafeguarding human dignity.

First, s. 12 protects against the imposition of punishment that is “so excessive as to be incompatible withhuman dignity” (para. 60). This prong of cruel and unusual punishment is concerned with the severity of a punishment — it queries notwhether an impugned punishment is excessive or disproportionate, but whether its effects are grossly disproportionate to the appropriatepunishment 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 ofpunishment that is at issue, but the amount or quantity of punishment imposed: the focus is whether its particular effects make it grosslydisproportionate and thereby constitutionally infirm (Bissonnette, at para. 62). [36] Second, s. 12 protects against the imposition of punishment and treatment that are cruel and unusual because, bytheir very nature, they are “intrinsically incompatible with human dignity” (Bissonnette, at para. 60). Under the second prong, the focusis on the method of punishment.

The narrow class of punishments that fall within the second category “will ‘always be grosslydisproportionate’ because . . . [t]hese punishments are in themselves contrary to human dignity because of their ‘degrading anddehumanizing’ nature” (para. 64, quoting Smith, at p. 1073; 9147-0732 Québec inc., at para. 51). [37] Mandatory minimum sentences are analyzed under the first prong of s. 12. As their name suggests, Parliament hasprescribed a minimum sentence which applies whenever a particular offence has been committed.

They are “mandatory” in the sense thatParliament has not provided the safety valve of judicial discretion, exemptions, or escape clauses. [38] Despite this absence of discretion, mandatory minimum sentence provisions have not been found to be inherently orpresumptively unconstitutional. As this Court stated in Smith, “[t]he legislature may . . . provide for a compulsory term of imprisonmentupon 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 minimumscan “function as a blunt instrument” and “deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencingrange” (Nur, at para. 44). In “extreme cases”, they may impose unjust sentences “because they shift the focus from the offender duringthe sentencing process in a way that violates the principle of proportionality” (para. 44).

When the effects of the impugned punishmentare grossly disproportionate to what would have been appropriate (Smith, at p. 1072), the punishment is cruel and unusual because itshows the “state’s complete disregard for the specific circumstances of the sentenced individual and for the proportionality of thepunishment inflicted on them” (Bissonnette, at para. 61).

[ 39 ] I 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 [ 40 ] To 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: 1. 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). 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 ( 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. [ 41 ] 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 ( Bissonnette , at para. 63 ; Nur , at para. 77). [ 42 ] 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 ( Boudreault , at para. 97 ; Nur , at para. 46).

(2) Applying the Framework [ 43 ] Justices O’Ferrall and Wakeling, as well as several interveners, invite this Court to make several revisions to this accepted framework because they say it is difficult to apply and lacks cohesion. Many of their criticisms do not accept the principles of law contained in the majority judgments of this Court, but are instead grounded in dicta from dissenting opinions.

Others endorse the existing framework and argue that those critical of it are really taking issue with the results it produces because they do not agree with them (see I.F., Canadian Civil Liberties Association, at paras. 27-32). These various criticisms and proposals will be considered in relation to the particular issues raised.

I would, however, acknowledge from the outset that there are challenges and complexities which make it impractical to establish bright-line rules that can be applied uniformly to mandatory minimum sentences under s. 12. [ 44 ] 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. While this is a daily occurrence in courts across this country, it involves a complex and multifactorial assessment.

Judges are tasked with crafting sentences that balance various sentencing objectives, account for aggravating and mitigating factors, and are proportionate to the gravity of each offence and the moral blameworthiness of the offender. [ 45 ] 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. Judges must consider the uniform and mandatory minimum sentence Parliament has selected for particular crimes.

A mandatory minimum is a penal provision of a very different type in which Parliament has intentionally removed discretion and has instead given priority to certainty, deterrence, denunciation and sometimes removing the offender from society. It has not only specified a minimum penalty, it anticipates that the minimum penalty will apply automatically regardless of how the crime was committed or by whom.

The same punishment or period of incarceration applies both to the full breadth of the conduct criminalized and to “everyone” who commits it, no matter how diversely situated. [ 46 ] When comparing the sentence produced from the individual process under general sentencing principles with the uniform standard under the mandatory minimum, some mismatch or disproportion is very likely. As observed by Arbour J. in R. v.

Wust , 2000 SCC 18 , [2000] 1 S.C.R. 455, at para. 18 : “Mandatory minimum sentences are not the norm in this country, and they depart from the general principles of sentencing expressed in the Code , in the case law, and in the literature on sentencing. In particular, they often detract from what Parliament has expressed as the fundamental principle of sentencing in s. 718.1 of the Code : the principle of proportionality.” [ 47 ] It is not therefore the existence of some disproportion which will offend the grossly disproportionate requirement of s. 12.

Stated otherwise, the analysis of the grossly disproportionate standard poses the following question: is the difference between the fit sentence and the mandatory minimum sentence so grossly disproportionate that it violates human dignity such that it amounts to cruel and unusual punishment? According to well-established jurisprudence, the challenged penalty may be unfit, excessive and disproportionate, but it only crosses the constitutional line when it becomes grossly disproportionate.

This question raises the common challenge of distinguishing the gradations and demarcations between related legal standards and reaching a conclusion about which legal standard is met. While it is frequently difficult to gauge questions of degree or to measure when something that is otherwise permitted has become grossly disproportionate, many legal standards require just this type of analysis.

Whether under s. 12 or s. 7 of the Charter , there will be a continuum between exact fit and gross disproportion, and a judge not only has the authority to make such a determination, but is recognized as being well placed to do so: “This is the sort of inquiry judges have consistently conducted in Charter review” ( Nur , at para. 60). [ 48 ] In addition, assessing gross disproportionality may be more challenging in certain circumstances. This is because sometimes the difference between stages one and two will involve penalties which are of different types or fall within distinct categories.

For example, there may be cases in which a fine would be a fit sentence but the impugned provision imposes imprisonment, or cases in which a discharge or conditional sentence would be fit but instead a custodial sentence is mandated by law. The disparity in such cases is more readily apparent because the comparison involves two different types of punishment and the effects are often more extreme. Other cases may involve a comparison between the term of a proportionate period of incarceration and the term of imprisonment contained in the mandatory minimum.

In such cases the type of punishment is the same: imprisonment. Such cases ask decision makers to engage in

normative reasoning and make a judgment call about when a sentence is so long it becomes grossly disproportionate. [49] I do not accept that these challenges and complexities mean that the established framework has always beenfundamentally flawed or has become unworkable. Indeed, many of the arguments accepted by O’Ferrall and Wakeling JJ.A. andadvanced before us by the Attorney General of Ontario and others were also forcefully argued and firmly rejected by this Court in 2015in Nur.

Like the Court in that case, in my view, the jurisprudence continues to provide a principled approach to assess when the effects ofa penalty are so undermining of human dignity that the penalty qualifies as cruel and unusual punishment. Elaborating on the multiple,sometimes nuanced, questions and normative standards that are/may be considered within the framework, should help bring an end to the“exaggerated debate” sometimes applied to s. 12 (para. 61, per McLachlin C.J.). While no major methodological shifts are warranted, theCourt seeks to provide greater clarity and more guidance. C.

Stage One: Determining a Fit and Proportionate Sentence [50] In this

section I outline the first stage of the s. 12 inquiry, which is how to determine a fit and appropriate sentence. Ibegin by addressing the situation in which the constitutional challenge involves the particular offender before the court. This will involvea familiar task: a full consideration of all relevant sentencing provisions in the applicable legislation and jurisprudence.

Sinceproportionality in sentencing relates to the gravity of the offence and the moral culpability of the individual before the court, there willnecessarily be a consideration of the circumstances of the commission of the offence and the personal characteristics of the offender.

Thegoal should be to determine as specific a punishment as would emerge from a traditional sentencing hearing — especially because this isthe penalty that would be served if the mandatory minimum were declared unconstitutional. [51] I then turn to cases in which the constitutional challenge involves the presentation of reasonably foreseeableoffenders by way of hypothetical scenarios. Since what is being challenged is a law of general application, this Court has repeatedly usedand authorized the use of reasonable hypotheticals to test the law’s scope, reach, nature and effects.

I explain the purposes they serve andthe limitations to which they are subject. They may include personal characteristics but they must be reasonable in the sense of beingreasonably foreseeable and realistic. While a bit more flexibility is needed to determine what a proportionate sentence would be for areasonably foreseeable offender, every attempt at precision is encouraged to ensure that the comparison under stage two may beconducted in a fair manner.

(1) Sentencing an Individual Offender [52] When the constitutional challenge to a mandatory minimum proceeds on the basis of the particular circumstances ofthe individual offender charged and convicted, the task for the judge at stage one of the s. 12 inquiry set out in Nur is a familiar one: todetermine a fit and proportionate sentence for the particular offender before the court. In this

section I provide an overview of therelevant sentencing provisions and principles, with a focus on the need for a fit, proportionate and precise sentence, having regard to theoffender’s personal characteristics and the circumstances surrounding the commission of the offence. (

a) General Sentencing Principles [53] The general principles of sentencing in the Criminal Code and the common law govern when evaluating the just andappropriate sentence for the actual or reasonably foreseeable offender (Nur, at paras. 40-42). Each sentence must be selected based on theparticular facts of the case and in light of existing case law (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43). Courtsshould employ sentencing tools and guides that are most relevant to their jurisdiction.

In crafting a fit sentence, judges may referencesentencing ranges or starting points as appropriate to reach a proportionate sentence, so far as these tools align with established principlesand objectives of sentencing (see R. v. Parranto, 2021 SCC 46, at para. 16). [54] To assist in evaluating what constitutes a just and appropriate punishment in a given case, Parliament enacted s. 718of the Criminal Code (or s. 38 of the Youth Criminal Justice Act, S.C. 2002, c. 1, where appropriate).

Proper consideration is to be givento various objectives such as denunciation, deterrence, rehabilitation, providing reparations for harm done to victims, promoting a senseof responsibility and, when necessary, separating offenders from society. No sentencing objective should be applied to the exclusion ofall others. Courts should also consider any aggravating and mitigating circumstances relating to the offence or to the offender. [55] In addition, s. 718.2(

e) of the Criminal Code provides a mandatory direction to consider the unique situation ofAboriginal offenders for all offences (Gladue, at para. 93; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 84-85). Sentencingjudges must consider the systemic or background factors which may have played a

part in bringing the particular Aboriginal offenderbefore the court and the types of sentencing procedures and sanctions which may be appropriate in the circumstances for that offender.Sanctions other than imprisonment are to be considered. While this Court has not addressed the issue, certain provincial courts of appealhave found that, in the case of Black offenders and groups who experience systemic discrimination, social context evidence orbackground factors which may have contributed to the offender being before the court can also serve as a mitigating factor at sentencing(see, e.g., R. v.

Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at paras. 13 and 87-95; R. v. Anderson, 2021 NSCA 62, 405 C.C.C. (3d) 1,at para. 114). (

b) Proportionality [56] Proportionality is a “central tenet” of Canada’s sentencing regime, with roots that predate the recognition of it as thefundamental principle of sentencing in s. 718.1 of the Criminal Code (Ipeelee, at para. 36, citing R. v. Wilmott (1966), (ON CA), 58 D.L.R. (2d) 33 (Ont. C.A.); see R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309, at para. 12; Nasogaluak, at paras. 40-42;R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at paras. 40-42).

Indeed, “whatever weight a judge may wish to accord tothe objectives [for sentencing prescribed in ss. 718 to 718.2 of the Criminal Code], the resulting sentence must respect the fundamentalprinciple of proportionality” (Nasogaluak, at para. 40 (emphasis in original)). [57] The purpose of proportionality is founded in “fairness and justice” (R. v. Priest (1996), (ON CA),30 O.R. (3d) 538 (C.A.), at p. 546). It is to prevent unjust punishment for the “sake of the common good” (p. 547) and it serves as alimiting function to ensure that there is “justice for the offender” (Ipeelee, at para. 37).

As the “sine qua non of a just sanction”

(para. 37), the concept expresses that the amount of punishment an offender receives must be proportionate to the gravity of the offenceand the offender’s moral blameworthiness (R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180, at paras. 70-71; R. v. Lacasse,2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 51-54; Ipeelee, at paras. 36 and 38; Nur, at para. 43; C. C. Ruby, Sentencing (10th ed.2020), at §2.14). [58] The “gravity of the offence” refers to the seriousness of the offence in a general sense and is reflected in the potentialpenalty imposed by Parliament and in an

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