His Majesty The King Appellant v. Ocean William Storm Hilbach and Curtis Zwozdesky, 2023 SCC 3

SUPREME COURT OF CANADA Citation: R. v. Hilbach, 2023 SCC 3 Appeal Heard: March 22, 2022 Judgment Rendered: January 27, 2023 Docket: 39438 Between: His Majesty The King Appellant and Ocean William Storm Hilbach and Curtis Zwozdesky Respondents - and - Director of Public Prosecutions, Attorney General of Ontario, Attorney General of Saskatchewan, Canadian Civil Liberties Association, Canadian Bar Association and British Columbia 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 111) Martin J. (Wagner C.J. and Moldaver, Brown, Rowe and Kasirer JJ. concurring) Concurring Reasons : (paras. 112 to 113) Côté J. Joint Dissenting Reasons : (paras. 114 to 165) Karakatsanis and Jamal JJ.

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports . His Majesty The King Appellant v. Ocean William Storm Hilbach and Curtis Zwozdesky Respondents and Director of Public Prosecutions, Attorney General of Ontario, Attorney General of Saskatchewan, Canadian Civil Liberties Association, Canadian Bar Association and British Columbia Civil Liberties Association Interveners Indexed as: R. v. Hilbach 2023 SCC 3 File No.: 39438. 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 — Robbery — Accused convicted of robbery committed with restricted or prohibited firearm and of robbery committed with ordinary firearm — Accused challenging constitutionality of mandatory minimum sentence of five years’ imprisonment prescribed for robbery committed with restricted or prohibited firearm and of mandatory minimum sentence of four years’ imprisonment prescribed for robbery committed with ordinary firearm — Whether mandatory minimum sentences constitute cruel and unusual punishment — Canadian Charter of Rights and Freedoms, s. 12 — Criminal Code, R.S.C. 1985, c.

C-46, ss. 344(1) (a)(i), ( a.1 ). After robbing a convenience store, H, an Indigenous 19-year-old, pleaded guilty to robbery using a prohibited firearm contrary to s. 344(1) (a)(

i) of the Criminal Code . Section 344(1) (a)(

i) prescribes a mandatory minimum sentence of five years’ imprisonment for a first offence conviction of robbery committed with a restricted or prohibited firearm. At sentencing, H brought a challenge under s. 12 of the Charter to the mandatory minimum sentence, arguing that it was a grossly disproportionate sentence in regards to his circumstances and constituted cruel and unusual punishment. The sentencing judge concluded that the mandatory minimum sentence was grossly disproportionate and contravened s. 12 . He decided that a fit and proportionate sentence for H was two years less a day.

In an unrelated case, Z robbed a convenience store and pleaded guilty to robbery with a firearm, contrary to s. 344(1) (a.1) of the Criminal Code . At that time, s. 344(1) (a.1) imposed a mandatory minimum sentence of four years’ imprisonment for a conviction of robbery where an ordinary firearm was used. At sentencing, Z brought a challenge under s. 12 of the Charter to the mandatory minimum sentence, relying on a set of hypothetical scenarios. The sentencing judge concluded that the mandatory minimum sentence was not grossly disproportionate for Z.

However, she concluded that it was grossly disproportionate in reasonably foreseeable hypothetical scenarios, and declared s. 344(1) (a.1) of no force or effect. She sentenced Z to three years’ imprisonment. The Crown’s appeals in the cases of H and Z were heard together. The Court of Appeal dismissed the appeals on the constitutionality of the mandatory minimum sentence provisions, but added a year to H’s sentence, concluding that three years’ imprisonment was a fit and proportionate sentence. It declined to interfere with Z’s sentence.

The Crown appeals the declarations of unconstitutionality of the mandatory minimum sentence provisions to the Court. Held (Karakatsanis and Jamal JJ. dissenting): The appeal should be allowed. Per Wagner C.J. and Moldaver, Brown, Rowe, Martin and Kasirer JJ.: The mandatory minimum sentences set out in s. 344(1) (a)(

i) and the former s. 344(1) (a.1) are constitutional and do not constitute cruel and unusual punishment.

In the companion appeal of R. v. Hills , 2023 SCC 2 , the Court affirmed and developed the framework applicable to challenges to the constitutionality of a mandatory minimum sentence under s. 12 of the Charter . In accordance with that framework, determining whether the mandatory minimum sentences for robbery are grossly disproportionate requires a two-stage inquiry. A court must first determine a fit and proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code .

The court must then ask whether the impugned provision requires it to impose a sentence that is grossly disproportionate when compared to the fit and proportionate sentence. Whether a mandatory minimum is grossly disproportionate will depend upon the scope and reach of the offence, the effects of the penalty on the offender, and the penalty and its objectives. 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. Indigeneity should factor into the s. 12 analysis of gross disproportionality.

Section 718.2 (

e) of the Criminal Code provides mandatory direction to consider the unique situation of Indigenous offenders for all offences in sentencing. Sentencing judges must consider the unique systemic or background factors which may have played a

part in bringing the particular Indigenous offender before the courts and the types of sentencing procedures and sanctions which may be appropriate in the circumstances for that offender. When engaged, s. 718.2 (

e) applies at three different parts of the s. 12 analysis. First, courts must consider Gladue when sentencing the individual offender; the failure to consider Gladue factors is an error that can lead to a finding that a sentence is unfit. Second, when crafting reasonably foreseeable hypotheticals, a court may consider scenarios involving Indigenous offenders. Lastly, Indigeneity is relevant at the second stage of the s. 12 inquiry.

The assessment of whether a mandatory minimum sentence is grossly disproportionate depends, in part, on the penalty’s effect on individual offenders, including Indigenous offenders, and its reflection of valid penal purposes and recognized sentencing principles, which include Gladue ’s framework for applying s. 718.2 (e). In H’s case, the five-year mandatory minimum sentence prescribed by s. 344(1) (a)(

i) does not infringe s. 12 of the Charter . With respect to the first stage of the inquiry, determining a fit and proportionate sentence for the offence, three years’ imprisonment is a fit and proportionate sentence for H. It is the starting point adopted for an unsophisticated armed robbery of small commercial establishments and in the absence of physical harm. H’s offence not only involved a prohibited firearm, but also resulted in physical harm to store clerks. Moreover, H pointed the rifle at two employees.

He was on probation and was subject to a prohibition order at the time of the offence, and he involved a 13-year-old youth in a violent crime. The two-year sentence imposed by the sentencing judge, which was a full year below the starting point, was demonstrably unfit. With respect to the second part of the two-stage inquiry, determining whether a sentence is grossly disproportionate, the mandatory minimum sentence, while harsh and close to the line, is not grossly disproportionate in H’s case.

First, considering the scope and reach of the offence, the minimum sentence is not so wide that it encompasses conduct that poses relatively little risk of harm. The gravity of the robbery offence and the culpability of offenders convicted of it is relatively high. Robbery is a serious offence based on the requisite actus reus of the use or threat of violence or force in stealing or attempting to steal property. Adding a firearm to the equation simply increases the gravity of the offence.

The harmful consequences of using a restricted or prohibited firearm in a robbery are readily identified: there is the risk of death or life-altering physical injury for victims and bystanders, and, even if the weapon is not fired, exposure to this threat carries the risk of profound psychological harm. The use of an unloaded prohibited firearm does not substantially reduce the offence’s gravity, as the presence of a firearm creates a highly volatile and dangerous situation. The mental elements required for the minimum sentence to apply suggest a relatively high degree of culpability.

An offender who commits robbery with a restricted or prohibited firearm must intend to steal and intend to use violence or force (or the threat thereof). The offence does not involve an inadvertent decision to put public safety at risk but a conscious choice to put another person’s safety at great risk. Though H’s personal circumstances attenuate his culpability somewhat, his actions constitute a grave offence with high moral blameworthiness.

Second, considering the effects of the penalty on the offender, a five-year term of imprisonment would have detrimental implications for H’s rehabilitation, given the sentencing judge’s finding that a penitentiary term increased the likelihood that H would re-entrench in gang involvement. Many Indigenous offenders may serve harder time as Indigenous offenders are often more severely affected by incarceration and treated in discriminatory ways in custodial environments. Further, incarceration itself can be a culturally inappropriate consequence for wrongdoing for Indigenous offenders.

These effects must carry significant weight. With respect to the penalty and its objectives, courts must first consider which sentencing objectives Parliament prioritized in enacting the mandatory minimum penalty and, second, assess whether the minimum sentence goes beyond what is necessary for Parliament to achieve its objectives. In H’s case, Parliament’s decision to prioritize denunciation and deterrence is justifiable. The mandatory minimum sentence captures conduct that clearly warrants deterrence and the strong denunciation that a substantial prison sentence signals.

Parliament is entitled to enact mandatory minimum sentences that signal that a disregard for the life and safety of others in handling firearms is simply not acceptable. There is also a need for general deterrence when a person endangers the safety of others in wielding a firearm. H’s actions are precisely the conduct that Parliament sought to deter. Greater deference to Parliament’s choice to enact a minimum sentence is therefore warranted. Further, the mandatory minimum sentence in H’s case is not totally out of sync with sentencing norms for an offence of this nature.

While a five-year mandatory minimum arguably sits above what H would receive, it does not far exceed what is necessary for Parliament to achieve its sentencing objectives. The difference between the mandatory minimum sentence and H’s individual circumstances does not outrage standards of decency. In Z’s case, five hypothetical scenarios have been advanced. However, these scenarios are insufficient to establish that s. 344(1) (a.1) is grossly disproportionate. The mandatory minimum does not shock the conscience or is not so excessive as to outrage standards of decency.

While the punishment is severe, the high threshold for gross disproportionality is not met. First, of the five scenarios, only two are reasonably foreseeable. Reasonably foreseeable scenarios are situations that may reasonably be expected to arise as a matter of common sense and judicial experience, as outlined in Hills . The first reasonably foreseeable scenario involves a 21-year-old Indigenous man who suffers from alcoholism and fetal alcohol spectrum disorder, is extremely intoxicated and face down in a snowbank when a good Samaritan stops to help him.

He grabs the woman, reaches into his waistband, flashes a BB gun, and snatches her purse. The BB gun is operable and capable of taking an eyeball out, but it is unloaded. The second reasonably foreseeable scenario involves a 26-year-old Indigenous man who suffers from a drug addiction and schizophrenia and has a short criminal record. When meeting his drug dealer in a parking lot, he produces an airsoft pistol, points it as his dealer, and takes some methamphetamines.

In addition, two hypotheticals drawn from reported decisions are reasonably foreseeable. Both cases involved youthfuloffenders involved in convenience store robberies: an 18-year-old Indigenous woman, who pled guilty as a party to the robbery wherethe principal used an imitation firearm; and an 18-year-old youthful offender who used a BB gun in the commission of a robbery andpled guilty. With respect to the first stage of the inquiry, two years’ to two and a half years’ imprisonment is a fit and proportionatesentence in these reasonably foreseeable scenarios.

These scenarios involved street muggings, an offence with a sentencing range around12 to 18 months, along with the use of a weapon and, in particular, a firearm, which is an aggravating factor. Furthermore, they involvedthe application of force to the victim, a degree of planning and a prior criminal record. There is also the serious public safety riskinvolved in using a firearm to settle a drug dispute, a consideration that supports a significant sentence.

Nevertheless, the moralblameworthiness of offenders is attenuated when mental health and addiction issues underlay their actions, as well as any applicableGladue considerations. With respect to the second part of the two-stage inquiry, the mandatory minimum is not grossly disproportionate in thesereasonably foreseeable scenarios. Regarding the scope and reach of the offence, the scenarios do not demonstrate the mandatoryminimum sentence casts too broad of a net and captures offenders with low culpability.

The offence’s mens rea and actus reus apply to arelatively narrow set of violent behaviours, and conviction requires a deliberate and specific act with a defined harm. From thestandpoint of public safety, there is not a dramatic difference between robbing a person with a conventional firearm and an air-poweredfirearm. Z’s scenarios do not establish s. 344(1)(a.1) applies in circumstances involving little or no danger to the public or little or nofault.

The distinctions between the lethality of the firearms involved, or the fact of party liability, do not establish dramatically differentdegrees of severity in the context of this offence. In all these scenarios, in order to steal, an offender makes a conscious choice to placeanother person at risk of life-altering injury and significant psychological trauma. However, the effects of the penalty on the offender aresevere. The individual circumstances of the hypothetical offenders indicate the period of incarceration required under s. 344(1)(a.1)would likely result in severe detrimental effects.

Finally, an inquiry into the penalty and its objectives reveals the analysis fors. 344(1)(a.1) and s. 344(1)(a)(

i) is similar. Parliament chose to impose the strong moral condemnation that a substantial prison sentencesignals, which is reasonable given the offenders’ choice to put public safety at risk offends basic moral values. Greater deference toParliament’s decision to enact the mandatory minimum is therefore warranted. Per Côté J.: There is agreement with the majority’s disposition of the appeal. However, for the reasons outlined in thedissent in Hills, there is disagreement with the majority’s new three-part test for gross disproportionality at the second stage of theestablished framework. Applying this established legal framework, the mandatory minimum sentences prescribed by s. 344(1)(a)(

i) ands. 344(1)(a.1) are not so excessive as to outrage standards of decency or shock the conscience of Canadians. Per Karakatsanis and Jamal JJ. (dissenting): The appeal should be dismissed. Sections 344(1)(a)(

i) and 344(1)(a.1) of theCriminal Code violate the constitutional guarantee against cruel and unusual punishment under s. 12 of the Charter. They cannot besaved under s. 1, and should be declared of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982. The five-year sentence set out in s. 344(1)(a)(

i) is grossly disproportionate for H. The sentencing judge correctly consideredthe facts, case law, and relevant sentencing objectives to determine that two years less a day was a fit and proportionate sentence in H’scircumstances. This determination is owed deference. In assessing a fit sentence, courts must not indiscriminately adhere to startingpoints, completely eliminate the prospect of rehabilitation, or distort the gravity of the offence by dismissing relevant facts (such aswhether a firearm was loaded).

The sentencing judge balanced the serious aggravating factors on H’s sentence against his tragic personalcircumstances, including abandonment by his parents, being raised by his paternal grandparents (both residential school survivors), and achildhood and adolescence marked by poverty, a fractured family unit, physical abuse, and substance dependency.

These circumstancesare precisely the kind of background or systemic factors that the Court has recognized as having a mitigating effect in sentencing, and itis imperative that sentencing judges appropriately consider the unique social issues facing Indigenous peoples in Canada. It shocks theconscience to send a youthful Indigenous offender to prison for five years when, as the sentencing judge determined, doing so wouldharm both the offender and society. Moreover, a sentence that is double or nearly double a fit sentence is grossly disproportionate inviolation of s. 12 of the Charter.

It is hard to fathom how such a sentence would not shock the conscience of Canadians. A five-yearsentence does not accord with a purposive reading of s. 12, nor is it alive to the profound consequences of any incarceration on anoffender’s life and liberty, let alone the secondary impacts on the offender and the offender’s family. Even if a fit sentence for H werethree years in jail, a sentence of five years would still be grossly disproportionate. The four-year mandatory minimum sentence under s. 344(1)(a.1) is also grossly disproportionate.

It is unconstitutionallybroad and foreseeably applies to a wide range of situations, including those where the offender may be young, substance dependent,assisting the principal offender, or using a firearm like a BB gun. Applying that mandatory minimum in some of these situations wouldbe so excessive as to outrage standards of decency. A four-year sentence reaches beyond the classic instance of robbery with a firearmand captures less egregious conduct.

While the objective gravity of robbery with a firearm is always serious, the gravity of the particularoffence committed depends on the circumstances surrounding the offence and varies considerably. A wide range of people commitarmed robberies. Considering personal characteristics and circumstances sheds light on the reasonably foreseeable scope of the law andreflects the inherently individualized nature of sentencing and how proportionality involves an assessment of both the gravity of theoffence and the blameworthiness of the offender.

This ensures that s. 12 responds to the everyday composition of offenders in thecriminal justice system.

Given the breadth of the definition of a firearm (including BB guns, paintball guns, and nail guns), the range ofconduct captured by the offence (including the degree and nature of involvement in the crime, the level of violence, and the level ofsophistication), as well as the prevalence of important, often intersecting, personal circumstances (including Indigeneity, youth,substance dependency, and rehabilitation efforts), it is reasonably foreseeable that a four-year penitentiary sentence would be grosslydisproportionate for some offenders. Cases Cited By Martin J. Applied: R. v.

Hills, 2023 SCC 2; referred to: R. v. Smith, (SCC), [1987] 1 S.C.R. 1045; R. v. Nur, 2015

SCC 15, [2015] 1 S.C.R. 773, aff’g 2013 ONCA 677, 117 O.R. (3d) 401; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v. Morrisey,2000 SCC 39, [2000] 2 S.C.R. 90; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; R. v. McDonald (1998), (ONCA), 40 O.R. (3d) 641; R. v. Lapierre (1998), (QC CA), 123 C.C.C. (3d) 332; R. v. McIvor, 2018 MBCA 29, [2018]5 W.W.R. 139; R. v. Pelletier (1992), (QC CA), 71 C.C.C. (3d) 438; R. v. Strong (1990), 1990 ABCA 327 ,111 A.R. 12; R. v. Nadolnick, 2003 ABCA 363, 339 A.R. 348; R. v.

Roberts, 2016 NLTD(G) 18, 377 Nfld. & P.E.I.R. 174; Lafrance v.The Queen, (SCC), [1975] 2 S.C.R. 201; R. v. Dorosh, 2003 SKCA 134, [2004] 8 W.W.R. 613; R. v. Watson, 2008ONCA 614, 240 O.A.C. 370; R. v. D. (A.), 2003 BCCA 106, 173 C.C.C. (3d) 177; R. v. Covin, (SCC), [1983] 1 S.C.R.725; McGuigan v. The Queen, (SCC), [1982] 1 S.C.R. 284; R. v. Steele, 2007 SCC 36, [2007] 3 S.C.R. 3; R. v. Purcell,2007 ONCA 101, 220 O.A.C. 207; R. v. Johnas (1982), 1982 ABCA 331 , 41 A.R. 183; R. v. Hills, 2020 ABCA 263, 9 Alta.L.R. (7th) 226; R. v. Bissonnette, 2022 SCC 23; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599; R. v.

Nasogaluak, 2010 SCC 6,[2010] 1 S.C.R. 206; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424; R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; R. v.Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Goltz, (SCC), [1991] 3 S.C.R. 485; R. v. Latimer, 2001 SCC 1, [2001]1 S.C.R. 3; R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895; Steele v. Mountain Institution, (SCC), [1990] 2 S.C.R. 1385;R. v. Felawka, (SCC), [1993] 4 S.C.R. 199; R. v. Al-Isawi, 2017 BCCA 163, 348 C.C.C. (3d) 524; R. v. Stewart, 2010BCCA 153, 253 C.C.C. (3d) 301; R. v. Uniat, 2015 ONCA 197; R. v. Breese, 2021 ONSC 1611; R. v.

John, 2016 ONSC 396; R. v.Stoddart, [2005] O.J. No. 6076 (QL), 2005 CarswellOnt 6523 (WL), aff’d 2007 ONCA 139, 221 O.A.C. 108; R. v. Asif, 2020 ONSC1403; R. v. Charley, 2019 ONSC 6490; Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32; R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500; R. v. Parranto, 2021 SCC 46; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Jones,2012 ONCA 609; R. v. Maytwayashing, 2018 MBCA 36; R. v. Agin, 2018 BCCA 133, 361 C.C.C. (3d) 258; R. v. D. (Q.) (2005), (ON CA), 199 C.C.C. (3d) 490; R. v. Marshall, 2015 ONCA 692, 340 O.A.C. 201; R. v.

Bellissimo, 2009 ONCA 49; R. v.Brown, 2010 ONCA 745, 277 O.A.C. 233; R. v. Mark, 2018 ONSC 447; R. v. Thavakularatnam, 2018 ONSC 2380; R. v. Lyons, (SCC), [1987] 2 S.C.R. 309; R. v. Smart, 2014 ABPC 175, 595 A.R. 266; R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411; R.v. Link, 2012 MBPC 25, 276 Man. R. (2d) 157; R. v. Delchev, 2014 ONCA 448, 323 O.A.C. 19; R. v. McIntyre, 2019 ONCA 161, 429C.R.R. (2d) 346; R. v. Wust (1998), (BC CA), 125 C.C.C. (3d) 43; R. v. Bernarde, 2018 NWTCA 7; R. v. Overacker,2005 ABCA 150, 367 A.R. 250; R. v. Hennessey, 2010 ABCA 274, 490 A.R. 35; R. v.

Vu, 2012 SCC 40, [2012] 2 S.C.R. 411; R. v.Thatcher, (SCC), [1987] 1 S.C.R. 652; R. v. Price (2000), (ON CA), 144 C.C.C. (3d) 343; R. v.Church (1985), 7 Cr. App. R. (S.) 370; R. v. Wallace (1973), (ON CA), 11 C.C.C. (2d) 95; R. v. Folino (2005), (ON CA), 77 O.R. (3d) 641; R. v. Dedeckere, 2017 ONCA 799, 15 M.V.R. (7th) 177; R. v. Batisse, 2009 ONCA 114, 93O.R. (3d) 643; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. McMillan, 2016MBCA 12, 326 Man. R. (2d) 56; R. v. Shi, 2015 ONCA 646. By Côté J. Referred to: R. v. Hills, 2023 SCC 2; R. v.

Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Bissonnette, 2022 SCC 23; R. v.Smith, (SCC), [1987] 1 S.C.R. 1045; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130. By Karakatsanis and Jamal JJ. (dissenting) R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v. Hills, 2023 SCC 2; Miller v. The Queen, (SCC),[1977] 2 S.C.R. 680; R. v. Hamilton (2004), (ON CA), 72 O.R. (3d) 1; R. v. Boudreault, 2018 SCC 58, [2018] 3S.C.R. 599; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Johnas (1982), 1982ABCA 331 , 41 A.R. 183; R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; R. v.

Bissonnette, 2022 SCC 23; R. v.Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Parranto, 2021 SCC 46; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424; R. v.Steele, 2007 SCC 36, [2007] 3 S.C.R. 3; R. v. Covin, (SCC), [1983] 1 S.C.R. 725; R. v. Dunn, 2013 ONCA 539, 117O.R. (3d) 171, aff’d 2014 SCC 69, [2014] 3 S.C.R. 490; R. v. Matwiy (1996), 1996 ABCA 63 , 178 A.R. 356; R. v. Smart, 2014ABPC 175, 595 A.R. 266; R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411; R. v. Link, 2012 MBPC 25, 276 Man. R. (2d) 157.

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, 12. Constitution Act, 1982, s. 52(1). Criminal Code, R.S.C. 1985, c. C-46, ss. 2 “firearm”, “steal”, 21, 84(1), (3), 85, 117.01(1), 244.2(1)(a), (3)(b),

Part IX, 343, 344, 718,718.1, 718.2. Firearms Act, S.C. 1995, c. 39, ss. 12, 139, 149. Rules of the Supreme Court of Canada, SOR/2002-156, r. 92. Supreme Court Act, R.S.C. 1985, c. S-26, s. 76. Authors Cited Canada. Office of the Correctional Investigator. Annual Report 2021-2022. Ottawa, 2022. Mangat, Raji. More Than We Can Afford: The Costs of Mandatory Minimum Sentencing. Vancouver: British Columbia Civil LibertiesAssociation, 2014. Manning, Morris, and Peter Sankoff. Manning, Mewett & Sankoff: Criminal Law, 5th ed. Markham, Ont.: LexisNexis, 2015. Ruby, Clayton C. Sentencing, 10th ed. Toronto: LexisNexis, 2020.

APPEAL from a judgment of the Alberta Court of Appeal (Wakeling, Strekaf and Feehan JJ.A.), 2020 ABCA 332, 14 Alta.L.R. (7th) 245, 394 C.C.C. (3d) 179, [2021] 1 W.W.R. 637, 473 C.R.R. (2d) 107, [2020] A.J. No. 987 (QL), 2020 CarswellAlta 1681(WL), affirming a declaration of unconstitutionality of s. 344(1)(a)(

i) of the Criminal Code and varying a sentence entered by Dunlop J.,2018 ABQB 526, 75 Alta. L.R. (6th) 359, 414 C.R.R. (2d) 327, [2018] A.J. No. 861 (QL), 2018 CarswellAlta 1350 (WL). Appealallowed, Karakatsanis and Jamal JJ. dissenting. APPEAL from a judgment of the Alberta Court of Appeal (Wakeling, Strekaf and Feehan JJ.A.), 2020 ABCA 332, 14 Alta.L.R. (7th) 245, 394 C.C.C. (3d) 179, [2021] 1 W.W.R. 637, 473 C.R.R. (2d) 107, [2020] A.J.

No. 987 (QL), 2020 CarswellAlta 1681(WL), affirming a declaration of unconstitutionality of s. 344(1)(a.1) of the Criminal Code and a sentence entered by Yungwirth J., 2019ABQB 322, 95 Alta. L.R. (6th) 386, [2020] 5 W.W.R. 305, 434 C.R.R. (2d) 45, [2019] A.J. No. 553 (QL), 2019 CarswellAlta 829 (WL).Appeal allowed, Karakatsanis and Jamal JJ. dissenting. Andrew Barg, for the appellant. Paul Moreau, for the respondent Ocean William Storm Hilbach. Dane F. Bullerwell and Katherine E. Clackson, as amici curiae. Janna A. Hyman, for the intervener the Director of Public Prosecutions.

Michael Perlin and Erica Whitford, for the intervener the Attorney General of Ontario. Grace Hession David, for the intervener the Attorney General of Saskatchewan. Nader R. Hasan and Ryann Atkins, for the intervener the Canadian Civil Liberties Association. Eric V. Gottardi, K.C., and Chantelle van Wiltenburg, for the intervener the Canadian Bar Association. Emily MacKinnon, Amanda G. Manasterski and Stephen Armstrong, for the intervener the British Columbia Civil LibertiesAssociation. The judgment of Wagner C.J. and Moldaver, Brown, Rowe, Martin and Kasirer JJ. was delivered by Martin J. — I.

Introduction [1] This appeal questions whether the mandatory minimum sentences for robbery imposed in s. 344(1)(a)(

i) and (a.1) ofthe Criminal Code, R.S.C. 1985, c. C-46, constitute cruel and unusual punishment under s. 12 of the Canadian Charter of Rights andFreedoms. Specifically, Mr. Hilbach challenges the minimum of five years’ imprisonment prescribed under s. 344(1)(a)(

i) where arobbery is committed with a restricted or prohibited firearm, arguing that it is a grossly disproportionate sentence in regards to hiscircumstances. Mr. Zwozdesky relies on a set of hypothetical scenarios to challenge the minimum of four years’ imprisonmentpreviously imposed by s. 344(1)(a.1) where an ordinary firearm is used. The mandatory minimum sentence prescribed in s. 344(1)(a.1)was repealed after this appeal was heard. Despite this legislative change, these reasons examine the impugned mandatory minimum aspreviously enacted. [2] In the companion appeal R. v.

Hills, 2023 SCC 2, this Court affirmed and developed the framework applicable tochallenges to the constitutionality of a mandatory minimum sentence under s. 12 of the Charter. Whether a mandatory minimum isgrossly disproportionate will depend upon the scope and reach of the offence, the effects of the penalty on the offender, and the penaltyand its objectives. Under this rubric, classic features of offences that lie at either end of the spectrum can be discerned and may provideguidance.

For example, some offences, while potentially very serious, can be committed in a wide range of circumstances by a widerange of offenders, including circumstances that are all but innocuous and offenders who are all but morally blameless. As such, they fallwithin a class of offences for which mandatory minimum sentences are particularly vulnerable to being struck down under s. 12 of theCharter as cruel and unusual punishment.

This is so because the prescribed mandatory minimum punishment may, in some instances, beso severe and the effects so pronounced, that it results in a grossly disproportionate sentence to the appropriate sentence in a given case(see, e.g., Hills; R. v. Smith, (SCC), [1987] 1 S.C.R. 1045; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v.

Lloyd,2016 SCC 13, [2016] 1 S.C.R. 130). [3] By contrast, some offences that may carry with them significant mandatory minimum sentences, such as four to fiveyears of imprisonment, are framed in such a way that they cannot be committed in innocuous circumstances by offenders who are all butmorally blameless. On the contrary, they are almost always serious and committed by offenders who bear a high degree of moralblameworthiness. Offences that come within this class are narrowly defined and limited in scope, subject and mens rea.

They regularlyinvolve acts of violence, threats of violence, or conduct that is inherently dangerous, in circumstances that give rise to a real risk of deathor serious bodily harm. Additionally, they require a high level of moral blameworthiness on the part of offenders, be they principals orparties, to sustain a conviction. [4] For this class of offences, the mandatory minimum sentence could, applying normal sentencing principles, beconsidered to be too high and demonstrably unfit in some cases.

For these offences there is, however, little risk of imposing a sentencethat would meet the test for gross disproportionality so long as the mandatory minimum sentence is not grossly disproportionate tosentences that would be appropriate, applying normal sentencing principles, for conduct that could reasonably be expected to fall withinits ambit (see, e.g., 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. McDonald(1998), (ON CA), 40 O.R. (3d) 641 (C.A.); R. v. Lapierre (1998), (QC CA), 123 C.C.C. (3d)

332 (Que. C.A.); R. v. McIvor, 2018 MBCA 29, [2018] 5 W.W.R. 139). [5] Of course, not all offences will fall neatly into one or the other of these two classes of offences, and they are notintended to establish any preconditions. Rather, these categories may serve as departure points when deciding whether a particularmandatory minimum sentence is or is not constitutional. [6] This appeal, and its companion appeal, provide classic examples of these two classes of offences.

In Hills, theimpugned provision imposed a mandatory minimum of four years’ imprisonment for an offence that can be committed in a wide range ofcircumstances by a wide range of offenders. By contrast, the present offence is narrowly defined and limited in scope, subject and mensrea. The impugned mandatory minimum sentences apply to conduct that poses a significant risk to the safety of victims and the public.The risk of violence and psychological trauma from any robbery involving a firearm is acute.

Unlike the offence that was subject to themandatory minimum sentence at issue in Hills, the spectrum of conduct captured by robbery with a firearm is not so wide that theminimums apply in circumstances that involve little danger or moral fault. [7] Applying the framework in Hills, I conclude that neither s. 344(1)(a)(

i) nor the former s. 344(1)(a.1) are grosslydisproportionate. In enacting the mandatory minimum sentences here, Parliament was free to prioritize deterrence and denunciation.Accordingly, I would allow the appeal in respect of each provision. II. Legislative Background [8] The respondents bring challenges under s. 12 of the Charter to the mandatory minimum sentences prescribed ins. 344(1)(a)(

i) and (a.1) of the Criminal Code. The mandatory minimum sentences at issue arise from the commission of the offence ofrobbery contrary to s. 343 of the Criminal Code.

Section 343 of the Criminal Code defines four ways that the offence of robbery can becommitted: 343 Every one commits robbery who (

a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threatsof violence to a person or property; (

b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses anypersonal violence to that person; (

c) assaults any person with intent to steal from him; or (

d) steals from any person while armed with an offensive weapon or imitation thereof. [9] While there are four ways in which robbery may be committed, the actus reus and mens rea requirements makerobbery rather distinct: as an offence, it combines an offence against property with one against the person, despite the fact it is includedin

Part IX of the Criminal Code, “Offences Against Rights of Property”. In terms of actus reus, the use of violence or force is aprerequisite to a conviction under s. 343(

a) to (c), and s. 343(

d) requires that the offender be “armed” with an “offensive weapon”.Moreover, three of the four ways in which robbery may be committed (s. 343(a), (

b) and (d)) require actual stealing. Its elements thustend to restrict the offence to a relatively narrow range of serious conduct, which is generally treated severely in sentencing (M. Manningand P. Sankoff, Manning, Mewett & Sankoff: Criminal Law (5th ed. 2015), at ¶22.59). [10] As for its mental elements, robbery carries a double mens rea requirement. First, the offender must intend to useviolence or force, and in the case of s. 343(

d) intend to carry the offensive weapon in question (R. v. Pelletier (1992), (QC CA), 71 C.C.C. (3d) 438 (Que. C.A.), at pp. 441-42; R. v. Strong (1990), 1990 ABCA 327 , 111 A.R. 12 (C.A.), atpara. 33; R. v. Nadolnick, 2003 ABCA 363, 339 A.R. 348, at para. 21; R. v. Roberts, 2016 NLTD(G) 18, 377 Nfld. & P.E.I.R. 174, atparas. 152-54). Second, whether the robbery involved actual stealing (s. 343(a), (

b) and (d)) or simply an intent to steal (s. 343(c)), theoffender must have had the requisite mens rea for theft given that s. 2 of the Criminal Code defines “steal” as “to commit theft”. Themens rea requirement for theft involves a fraudulent intent, an absence of any colour of right over the property, and the intent to deprivean owner of their property (Lafrance v. The Queen, (SCC), [1975] 2 S.C.R. 201; R. v. Dorosh, 2003 SKCA 134, [2004]8 W.W.R. 613, at para. 14). [11] Aside from s. 343(d), s. 343 does not create a distinct offence of “armed robbery”.

However, where a firearm is usedin a robbery under any of the modes in s. 343, s. 344(1) is engaged. Specifically, where a restricted or prohibited firearm is used, anoffender is subject to a mandatory five-year term of imprisonment in the case of a first offence (s. 344(1)(a)(i)). Before recentamendments to the Criminal Code were enacted in 2022, where the firearm was neither restricted nor prohibited, a mandatory four-yearterm of imprisonment applied (s. 344(1)(a.1)): 344

(1) Every person who commits robbery is guilty of an indictable offence and liable (

a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the

offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, toimprisonment for life and to a minimum punishment of imprisonment for a term of (

i) in the case of a first offence, five years, and (ii) in the case of a second or subsequent offence, seven years; (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishmentof imprisonment for a term of four years; and (

b) in any other case, to imprisonment for life. [12] A question which affects the scope of the impugned

section arises as to whether s. 344(1) is an offence-creatingprovision or whether it relates to sentencing alone (R. v. Watson, 2008 ONCA 614, 240 O.A.C. 370, at para. 24; R. v. D. (A.), 2003BCCA 106, 173 C.C.C. (3d) 177, at para. 30). While nothing turns on this issue here, based on its wording and origins, Parliamentappears to have modeled s. 344(1) on s. 85(1) of the Criminal Code, which makes it an offence to commit an indictable offence using afirearm, and s. 85(3), which previously prescribed a mandatory minimum punishment of one year of imprisonment.

The mandatoryminimum sentences in s. 344(1) must be interpreted similarly to s. 85(1) as a result. Section 85(1) reads as follows: Using firearm in commission of offence 85

(1) Every person commits an offence who uses a firearm, whether or not the person causes or means to cause bodily harm to anyperson as a result of using the firearm, (

a) while committing an indictable offence, other than an offence under [certain sections, including] 344 (robbery) . . . . [13] Before s. 344’s enactment, robbery with a firearm was typically prosecuted by charging an offender with a principaloffence, for example armed robbery under the former s. 302, and s. 83 (the then equivalent of s. 85, using a firearm in the commission ofthe robbery offence; see, e.g., Lapierre; R. v. Covin, (SCC), [1983] 1 S.C.R. 725). Section 85(1) was enacted to ensurestiff penalties for offences commonly committed with firearms, like robbery (s. 85(3) of the Criminal Code; McGuigan v.

The Queen, (SCC), [1982] 1 S.C.R. 284, per Dickson J. (as he then was), at pp. 316-17 and 319, referring to the former s. 83). [14] However, in 1995, after s. 344 was enacted, robbery was exempted from the list of indictable offences that couldground a conviction under s. 85(1) (Firearms Act, S.C. 1995, c. 39, ss. 139 and 149).

Evidently, Parliament concluded that a penalty evenharsher than the one-year minimum term prescribed by s. 85(3) was warranted where a firearm was used to commit robbery.Section 85’s text reinforces the conclusion that it served as the model for s. 344, considering the language of the two provisions issimilar.

Specifically, s. 85(1) refers to a “person . . . who uses a firearm . . . while committing an indictable offence”, while s. 344(1)applies where firearms are “used in the commission of [robbery]”. [15] Given Parliament modelled s. 344 on s. 85, the “use” of a firearm ought to be defined consistently across ss. 344 and85. In R. v.

Steele, 2007 SCC 36, [2007] 3 S.C.R. 3, this Court observed that an offender “uses” a firearm within the meaning of s. 85(1)where the weapon is in the physical possession of the offender or readily at hand, and “to facilitate the commission of an offence or forpurposes of escape, the offender reveals by words or conduct the actual presence or immediate availability of a firearm” (para. 32(emphasis in original)). [16] The requirement to “use” a firearm further narrows the scope of s. 344(1)(a)(

i) and (a.1) and applies only where afirearm is used to threaten violence or force in a robbery. Mere possession of a firearm does not constitute “using” a firearm (Steele, atparas. 25-28). This precludes, for instance, the mandatory minimum sentences from applying where an offender merely possessed thefirearm and was technically “armed” within the meaning of s. 343(d). Moreover, “use” implies a degree of subjective fault. The offendermust intend to use the firearm while committing, or escaping after committing, the offence (R. v.

Purcell, 2007 ONCA 101, 220 O.A.C.207, at paras. 16-18). [17] In addition, s. 344 incorporates the definition of a “firearm” in the Criminal Code, as well as the terms “prohibitedfirearm” and “restricted firearm”.

A “firearm” is defined at s. 2 to mean “a barrelled weapon from which any shot, bullet or otherprojectile can be discharged and that is capable of causing serious bodily injury or death to a person”. “Prohibited firearms” and“restricted firearms” are two specific classes of firearms subject to strict regulation under both the Firearms Act and the Criminal Code.Prohibited firearms include short-barrelled handguns, sawed-off rifles and shotguns, and automatic firearms (Criminal Code, s. 84(1);Nur, at para. 7).

The possession of a prohibited firearm is unlawful, unless the individual possessed the firearm before the prohibitioncoming into force (Firearms Act, s. 12; Nur, at para. 7). Restricted firearms are “inherently dangerous and are commonly used incriminal activity”. They include any handgun that is not a prohibited firearm, some semi-automatic firearms, and some firearms that areless than a specified length (Nur, at para. 7; Criminal Code, s. 84(1)).

[18] Firearms that are neither prohibited nor restricted fall into a residual category of firearms that can be possessed withfewer constraints. This residual category includes ordinary firearms, like hunting rifles, that are subject to the licensing regime in theFirearms Act. Others are exempted from the Firearms Act under s. 84(3) of the Criminal Code, owing to their reduced muzzle velocity.Some exempted firearms include air-powered devices like paintball guns and BB guns.

These air-powered devices constitute “firearms”within the meaning of the Criminal Code since they can still cause serious bodily injury (Hills, at paras. 13-14). The distinctions withinCanada’s regulatory scheme for firearms underlie the arguments advanced by the parties before this Court on the constitutionality of themandatory minimums. [19] Having set out the legislative background of the mandatory minimum sentences at issue, I turn to the facts andjudicial history that led to this appeal. III. Judicial and Legislative History A. R. v. Hilbach, Alberta Court of Queen’s Bench, 2018 ABQB 526, 75 Alta.

L.R. (6th) 359 [20] On June 9, 2017, Mr. Hilbach and a 13-year-old accomplice robbed a convenience store in Edmonton with anunloaded sawed-off rifle. With his face concealed, Mr. Hilbach pointed the rifle at two employees and demanded cash while hisaccomplice punched one employee and kicked the other. They left with $290 in lottery tickets and were apprehended shortly after. At thetime of the offence, Mr. Hilbach was 19 years old, on probation, and subject to a firearms prohibition order, having been convicted of andsentenced for several other offences 3 months earlier. In January 2018, Mr.

Hilbach pleaded guilty to robbery using a prohibited firearmcontrary to s. 344(1)(a)(

i) of the Criminal Code and to violating s. 117.01(1) of the Criminal Code, which makes it an offence to possessa firearm while prohibited from doing so by a court order. At sentencing, Mr. Hilbach brought a challenge under s. 12 of the Charter tothe five-year mandatory minimum sentence imposed pursuant to s. 344(1)(a)(i). Mr. Hilbach claimed the impugned provision wasgrossly disproportionate in his particular circumstances as an offender before the court. [21] Mr. Hilbach is Indigenous. He is a member of the Ermineskin Cree Nation. Before the sentencing judge, Mr.

Hilbachfiled a pre-sentence report and Gladue report, which established that his family had a history of residential school attendance, struggledwith addictions to alcohol or other substances, and suffered financial difficulties. He has a Grade 10 education, had worked in theconstruction industry, and was working with an organization for youth and young adults at risk of gang involvement and criminalactivity. He has a daughter, who was 18 months old at the time of sentencing.

He acknowledged an alcohol addiction and a criminalrecord for several offences, including uttering threats, assault, mischief, and breaches of recognizance. His personal history is marked byphysical abuse, family violence, chronic unemployment, and gang involvement. [22] The sentencing judge decided that a fit and proportionate sentence for Mr. Hilbach was two years less a day.

Inassessing gross disproportionality, the sentencing judge concluded that while the gravity of the offence was high, and deterrence anddenunciation were important, the effects of a five-year penitentiary sentence were “severe”, as a longer sentence increased the likelihoodof “a life of criminal and other anti-social behaviour” (para. 14). Mr. Hilbach’s rehabilitation was best served with a short period ofincarceration. Further, his youth was mitigating and Gladue factors contributed to the offence. The most basic was Mr.

Hilbach’spoverty, which prompted his actions and related to systemic factors that led to lower incomes among Indigenous peoples. The sentencingjudge was satisfied these considerations would justify a sentence less than the three-year starting point established by the Alberta Courtof Appeal for unsophisticated armed robbery for commercial outlets in R. v.

Johnas (1982), 1982 ABCA 331 , 41 A.R. 183.Since a five-year sentence was more than double a fit and proportionate sentence, and because a penitentiary sentence was“qualitatively” different, he concluded that the mandatory minimum sentence was grossly disproportionate (para. 43). The Crown madeno argument under s. 1 of the Charter, so the sentencing judge declined to consider it (para. 5). B. R. v. Zwozdesky, Alberta Court of Queen’s Bench, 2019 ABQB 322, 95 Alta. L.R. (6th) 386 [23] On September 13, 2016, Mr. Zwozdesky and two masked accomplices robbed a convenience store in Caslan,Alberta.

One of the accomplices pushed an employee, pointed a sawed-off shotgun at her, and demanded cash. A shot was fired into ashelf. Mr. Zwozdesky was not the principal offender. He did not enter the store during the robbery, but drove the vehicle that brought hisaccomplices to and from the store. Mr. Zwozdesky pleaded guilty to robbery with a firearm contrary to s. 344(1)(a.1) of the CriminalCode, as well as a charge of robbery contrary to s. 344(1)(

b) of the Criminal Code arising from a second incident. At sentencing,Mr. Zwozdesky brought a challenge under s. 12 of the Charter to the four-year mandatory minimum sentence in s. 344(1)(a.1). [24] Mr. Zwozdesky was almost 56 years old at sentencing. He had a Grade 9 education and no criminal record. He wasinjured in several motor vehicle accidents, the last significant one having occurred in 2000. As a result, he suffered severe post-traumaticcognitive dysfunction, fibromyalgia, nerve damage and chronic pain and was incapable of working.

To manage his pain, he relied onprescription drugs, along with hard and soft illegal drugs. He had no memory of the robbery on September 13, 2016, as he was under theinfluence of drugs. The sentencing judge found he may have participated in the robberies to support his addictions that resulted fromchronic pain. [25] The sentencing judge concluded that the impugned mandatory minimum sentence was not grossly disproportionatefor Mr. Zwozdesky, since a sentence of three to four years was fit and proportionate for his offence.

She went on to conclude, however,that the mandatory minimum sentence was grossly disproportionate in reasonably foreseeable hypothetical scenarios. Armed robberiescould be committed in a wide variety of circumstances and by a wide range of offenders. The minimum sentence could be grosslydisproportionate where offenders were young, Indigenous and/or suffering from addiction issues. In support of this conclusion, thesentencing judge referenced R. v. Hilbach, 2018 ABQB 526.

As the Crown made no submissions under s. 1 of the Charter, thesentencing judge declined to consider whether the infringement was justified in a democratic and free society and declared s. 344(1)(a.1)of no force and effect. Having struck down the mandatory minimum sentencing provision, she sentenced Mr. Zwozdesky to three years’imprisonment for robbery with a firearm. C. Alberta Court of Appeal, 2020 ABCA 332, 14 Alta. L.R. (7th) 245 [26] The Alberta Court of Appeal heard the Crown’s appeals in Mr. Hilbach’s and Mr. Zwozdesky’s cases together. The

majority, Strekaf and Feehan JJ.A., dismissed the Crown’s appeals on the constitutionality of the mandatory minimum sentence provisions, but added a year to Mr. Hilbach’s sentence. Wakeling J.A. wrote in dissent, concluding that both mandatory minimum sentence provisions were constitutional and the sentences imposed on each offender were inadequate. [ 27 ] The majority concluded that a sentence of two years less a day was demonstrably unfit for Mr. Hilbach and instead concluded three years’ imprisonment was a fit and proportionate sentence.

Three years was the starting point for convenience store robberies established in Johnas , and a sentence of this length suited the gravity of Mr. Hilbach’s offence. In going below three years’ imprisonment, the sentencing judge had overemphasized Mr. Hilbach’s Gladue factors and placed insufficient weight on deterrence and denunciation, as well as the offence’s aggravating factors. However, s. 344(1)(a)(

i) was still grossly disproportionate in Mr. Hilbach’s case, as it precluded considering mitigating factors and elevated “denunciation and deterrence to such an extent as to minimize objectives of rehabilitation, the imposition of a just sanction, and special considerations for Indigenous offenders” (para. 53). [ 28 ] The majority agreed with the sentencing judge that three years’ imprisonment was a fit and proportionate sentence for Mr. Zwozdesky and declined to interfere with his sentence as a result.

The majority, however, also agreed s. 344(1)( a.1 ) was grossly disproportionate in five reasonably foreseeable scenarios, including where the offender was young, Indigenous, suffering from mental health issues and addiction, and committed the robbery with an air-powered pistol. In these scenarios, the mandatory minimum might be more than double a fit and proportionate sentence. The Crown did not advance an argument to save the legislation under s. 1 of the Charter . [ 29 ] Wakeling J.A. in dissent would have set aside the declarations that ss. 344(1)(a)(

i) and 344(1)( a.1 ) are grossly disproportionate. Wakeling J.A. reiterated his view, expressed in R. v. Hills , 2020 ABCA 263 , 9 Alta. L.R. (7th) 226, that this Court’s s. 12 jurisprudence is unsound and ought to be revisited. Even so, Wakeling J.A. noted that these are not “one of those extraordinary cases” (para. 89) that satisfies the test for gross disproportionality developed in Smith . Wakeling J.A. would have also increased Mr. Hilbach’s and Mr. Zwozdesky’s sentences beyond the mandatory minimums. [ 30 ] In September 2021, Mr. Zwozdesky passed away after the Court granted leave to the Crown to appeal.

After Mr. Zwozdesky’s counsel applied to continue the appeal pursuant to s. 76 of the Supreme Court Act , R.S.C. 1985, c. S-26 , the Court granted standing to his counsel to appear as amici curiae under r. 92 of the Rules of the Supreme Court of Canada , SOR/2002-156 . D. Legislative Amendments [ 31 ] 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, and repealed the mandatory minimum sentence prescribed in s. 344(1)( a.1 ).

When an ordinary firearm is used to commit robbery, it no longer attracts a mandatory minimum. While I acknowledge this legislative change, these reasons examine the provision as previously enacted with the applicable mandatory minimum terms. The parties do not rely on Parliament’s choice to repeal this measure in their arguments and as such, I will not address this issue further. IV. Issue [ 32 ] The issue on this appeal is whether the mandatory minimum terms of imprisonment prescribed in s. 344(1)(a)(

i) and (a.1) of the Criminal Cod e infringe s. 12 of the Charter . V. Analysis [ 33 ] In the reasons for judgment in Hills , rendered simultaneously with this case, this Court reiterated the well-established s. 12 framework and provided further clarity as to how it applies in respect of a challenge to a mandatory minimum sentence provision. I begin with a brief restatement of those principles before applying those principles in this appeal. A.

The Test for an Infringement of Section 12 (1) The Framework [ 34 ] Determining whether the mandatory minimum sentences for robbery are grossly disproportionate requires a two-stage inquiry. A court must first determine a fit and proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code ( Hills , at para. 40; R. v. Bissonnette , 2022 SCC 23 , at para. 63 ; R. v. Boudreault , 2018 SCC 58 , [2018] 3 S.C.R. 599, at para. 46 ; Nur , at para. 46).

The court must then ask whether the impugned provision requires it to impose a sentence that is grossly disproportionate when compared to the fit and proportionate sentence ( Hills , at para. 40; Bissonnette , at para. 63 ; Nur , at para. 46; Smith , at p. 1072). This two-part assessment may proceed on the basis of either (1) the actual offender before the court, as it will for Mr. Hilbach, or (2) another offender in a reasonably foreseeable case, as proposed by Mr.

Zwozdesky ( Hills , at para. 41; Bissonnette , at para. 63 ; Nur , at para. 46). [ 35 ] At both stages of the analysis, courts are called upon to be scrupulous ( Hills , at paras. 50-52). Analytical rigour at the first stage, and fixing as specific a sentence as possible, ensures that the comparative exercise at the second stage is not distorted. In some cases, the evaluation of gross disproportionality may be more apparent where the fit sentence fixed at the first stage is not carceral in nature — for example, where it would have involved probation rather than imprisonment as was the case in Hills (para. 156).

But the same principled process of comparison applies when comparing terms of imprisonment to determine if and when the length of a carceral sentence becomes grossly disproportionate. [ 36 ] The framework for the second stage of the s. 12 analysis is outlined in the companion case, Hills , beginning at para. 122, and involves consideration of the scope and reach of the offence, the effects on the offender, and the penalty. Either one component alone or the combination of multiple components may lead to a finding of gross disproportionality.

Mandatory minimum penalties that capture a range of conduct of varying gravity and differing levels of offender culpability will be constitutionally suspect ( Hills , at para. 125; Lloyd , at para. 24 ; Boudreault , at para. 45 ; Smith , at p. 1078). The broader the scope of the offence, the more likely

the mandatory minimum may prescribe a grossly disproportionate term of imprisonment on conduct that involves low risk to publicsafety and low moral culpability (Hills, at para. 125; Nur, at para. 83). In these circumstances, the minimum penalty is more likely tocapture conduct that is grossly disproportionate. [37] At the second component, courts must also take into account the impacts that the mandatory minimum may have onthe individual offender.

This analysis requires an inquiry into how the punishment may affect the actual or reasonably foreseeableoffender — both generally and based on their specific characteristics and qualities (Hills, at para. 133).

Offender characteristics includingIndigeneity, race, gender, age and mental health factors may be relevant to this component (Hills, at para. 135). [38] The third component requires an analysis of the penalty imposed under the mandatory minimum (Hills, at para. 138).Courts must assess the severity of the sentence imposed and ask whether the prescribed penalty goes beyond what is necessary toachieve Parliament’s sentencing objectives “having regard to the legitimate purposes of punishment and the adequacy of possiblealternatives” (Smith, at pp. 1099-1100).

Parliament may mandate sentences according to its punishment objectives, including those ofdenunciation and deterrence, within constitutional limits. However, no individual sentencing objective can be applied to the exclusion ofall others (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43). Rehabilitation must form part of the calculus of all criminalpunishment, as a punishment that completely disregards rehabilitation is incompatible with human dignity (Bissonnette, at para. 85;Hills, at para. 141).

Courts should examine whether there are alternatives to the mandatory penalty that would also fulfill Parliament’ssentencing objectives. Where a mandatory minimum provides no discretion to impose a sentence other than imprisonment whereimprisonment is not required, the penalty will be constitutionally suspect and require careful scrutiny (Hills, at para. 144). Allpunishment should be considered in light of the principles of parity and proportionality (R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424,at paras. 32-33; Hills, at para. 145).

(2) Mandatory Minimum Sentences and Indigenous Offenders [39]

Section 718.2(

e) of the Criminal Code provides mandatory direction to consider the unique situation of Indigenousoffenders for all offences in sentencing (R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, at para. 93; R. v. Ipeelee, 2012 SCC13, [2012] 1 S.C.R. 433, at paras. 84-85).

It directs that “all available sanctions, other than imprisonment, that are reasonable in thecircumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.” Theprinciples relating to the consideration of Gladue reports are settled: these considerations must be applied in all cases where they arerelevant, including where the offence charged is serious. Sentencing judges must consider the unique systemic or background factorswhich may have played a

part in bringing the particular Indigenous offender before the courts and the types of sentencing procedures andsanctions which may be appropriate in the circumstances for that offender (Ipeelee, at paras. 59-60). [40] Certain parties and interveners raised questions regarding the way Indigeneity should factor into the s. 12 analysis ofgross disproportionality. The Attorney General of Ontario, for instance, submitted that it should be treated as a “generic” mitigatingcircumstance that is excluded from the scope of reasonable hypotheticals.

These arguments were rejected in Nur when the Court found“the inquiry into reasonably foreseeable situations the law may capture may take into account personal characteristics relevant to peoplewho may be caught by the mandatory minimum” (para. 76). [41] When engaged, s. 718.2(

e) applies at three different parts of the analysis. [42] First, in conducting a s. 12 analysis, courts must consider Gladue when sentencing the individual offender. The failureto consider Gladue factors is an error that can lead to a finding that a sentence is unfit (Ipeelee, at paras. 86-87). Hence, where theoffender is Indigenous, like Mr.

Hilbach, a court will necessarily need to take into account Gladue principles in order to fix a sentencethat is fit and proportionate at the first stage. [43] Second, a court may consider scenarios involving Indigenous offenders in crafting reasonably foreseeablehypotheticals (Hills, at para. 86).

Given the statistics concerning the imprisonment of Indigenous persons, it is reasonably foreseeablethat a hypothetical offender could be Indigenous, and the consideration of a hypothetical offender’s Indigeneity, in the context of areasonable hypothetical scenario, aligns with the imperative statutory guidance provided by Parliament in s. 718.2(e).

Indigenous peopledealing with poverty, precarious housing, or disabilities and addictions appear with “staggering regularity in our provincial courts” andare therefore reasonably foreseeable (Boudreault, at para. 55). [44] Lastly, Indigeneity is relevant at the second stage of the s. 12 inquiry. This Court has long affirmed that theassessment of whether a mandatory minimum sentence is grossly disproportionate depends, in part, on its reflection of valid penalpurposes and recognized sentencing principles (Boudreault, at para. 48; Smith, at p. 1072; R. v. Goltz, (SCC), [1991] 3S.C.R. 485, at p. 500; R. v.

Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3, at para. 86; Morrisey, at para. 28). Gladue’s framework forapplying s. 718.2(

e) has been a core part of Canada’s sentencing principles since 1999. The methodology called for under s. 718.2(e), aswell as the norms it embodies, are well-established components of our sentencing jurisprudence, as much as parity and proportionality.Section 718.2(

e) is necessarily relevant in a s. 12 framework that requires courts to assess the effects of mandatory minimum sentences inlight of sentencing norms and objectives. Moreover, as Boudreault illustrates, the impact of a punishment on Parliament’s objectives ins. 718.2(

e) can support striking down a sentencing measure under s. 12. Accordingly, there is no reason to exclude consideration ofs. 718.2(

e) of the Criminal Code from either stage of the gross disproportionality framework. [45] The types of considerations that may be raised under s. 718.2(

e) in a s. 12 challenge to a mandatory minimumsentence include, for instance, whether a probationary sentence would have otherwise been a valid alternative to incarceration as a resultof Gladue principles. Or, as in Boudreault, the effects of a sentencing measure may be particularly severe when circumstances affectingIndigenous offenders are considered (para. 94). This Court has identified, for instance, that Indigenous offenders may be more adverselyaffected by incarceration than non-Indigenous offenders (Gladue, at para. 68).

Courts may identify these concerns as grounds thatsupport the conclusion that a minimum sentence is grossly disproportionate, keeping in mind that a breach of s. 12 remains a highthreshold to meet and a punishment is not grossly disproportionate due to the presence or absence of a single sentencing principle. [46] I turn now to Mr. Hilbach’s and Mr. Zwozdesky’s s. 12 challenges.

B. Application [47] I first address Mr. Hilbach’s appeal, in which he argues that s. 344(1)(a)(

i) is grossly disproportionate as it concernshis own actual circumstances. I will then turn to Mr. Zwozdesky, who concedes the proportionality of the mandatory minimum sentenceimposed by s. 344(1)(a.1) as it applies to his case, but relies on a set of hypotheticals to challenge the mandatory minimum sentenceprovision.

(1) Application to Mr. Hilbach’s Case [48] The Crown submits that the Court of Appeal majority erred in concluding s. 344(1)(a)(

i) was grosslydisproportionate in Mr. Hilbach’s case, as they overlooked the gravity of Mr. Hilbach’s offence and failed to recognize deterrence anddenunciation were valid penal goals as a result. I agree. The mandatory minimum sentence as applied to Mr. Hilbach is a harshpunishment. However, upon consideration of (1) the scope and reach of the offence; (2) the effects of the punishment on the offender;and (3) the penalty, I am not satisfied the mandatory minimum reaches the high threshold of gross disproportionality. (

a) Three Years’ Imprisonment Is a Fit and Proportionate Sentence for Mr. Hilbach [49] The Court of Appeal majority overturned the sentencing judge’s sentence of two years less a day and insteadconcluded that a fit sentence for Mr. Hilbach was three years’ imprisonment. Neither party challenges the Court of Appeal’s finding thata three-year sentence is a fit and proportionate sentence for Mr. Hilbach. No reasonable hypothetical was proffered at first instance, andwe need not create one here. The s. 12 analysis will proceed based solely on the facts of Mr.

Hilbach’s case. [50] By imposing a sentence that was a full year below the starting point for offences of this nature in Alberta, thesentencing judge failed to adequately weigh the gravity of the offence and the significant aggravating factors in this case. As the majoritystated (at paras. 11 and 46), three years’ imprisonment was the starting point adopted for an unsophisticated armed robbery of smallcommercial establishments “with modest or no success” and “in the absence of actual physical harm” recognized in Johnas, at para. 19(emphasis added). Mr.

Hilbach’s offence not only involved a prohibited firearm, but also resulted in physical harm as his accomplice wasphysically violent with both store clerks in the course of the robbery. Moreover, Mr. Hilbach pointed the rifle at two employees. He wason probation and was subject to a prohibition order at the time of the offence. He also involved a 13-year-old youth in a violent crime.These are aggravating factors that could support a sentence above the starting point in Johnas.

While I accept the mitigating factorsidentified by the sentencing judge, I agree with the Court of Appeal majority that a sentence that is a full year below the starting point inJohnas would be demonstrably unfit. (

b) The Mandatory Minimum Is Not Grossly Disproportionate in Mr. Hilbach’s Case [51] This Court has repeatedly affirmed that the threshold for establishing a grossly disproportionate sentence under s. 12is high (Lloyd, at para. 24). The mandatory minimum sentence must be more than merely excessive, unfit or disproportionate. It must be“so excessive as to outrage standards of decency” (Hills, at para. 109, citing Boudreault, at para. 45; Lloyd, at para. 24, citing Morrisey,at para. 26; R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895, at para. 4, citing Smith, at p. 1072).

It is only on “rare and unique occasions”that a sentence will infringe s. 12, as the test is “very properly stringent and demanding” (Steele v. Mountain Institution, (SCC), [1990] 2 S.C.R. 1385, at p. 1417). As I explain below, a mandatory minimum of five years, while harsh and close to the line, isnot grossly disproportionate in Mr. Hilbach’s case. The minimum sentence at issue is not so wide that it encompasses conduct that posesrelatively little risk of harm. Though Mr. Hilbach’s personal circumstances attenuate his culpability somewhat, his actions constitute agrave offence with high moral blameworthiness.

While the effects of imprisonment on Mr. Hilbach, an Indigenous offender, will besevere, five years’ imprisonment in his case is not totally out of sync with sentencing norms. As a result, proportionality and parity arenot compromised to the extent seen in Nur, Lloyd and Hills. Parliament’s sentencing objectives and decision to prioritize denunciationand deterrence is justified for this offence. Greater deference to Parliament’s choice to enact a minimum sentence is therefore warranted. (

i) The Scope and Reach of the Offence [52] As this Court has repeatedly affirmed, mandatory minimum sentences are more vulnerable constitutionally where theyapply to a wide range of circumstances (Nur, at paras. 81-82; Lloyd, at paras. 3, 24, 27 and 35-36). The wider the scope of the offencesubject to the minimum sentence, the more likely there is a circumstance where the minimum will impose a lengthy term ofimprisonment on conduct that involves little risk to the public and little moral fault (Hills, at para. 125; Nur, at para. 83).

Thus, a courtshould consider the variation in the offence’s gravity and the culpability involved and consider whether the sentence captures conductthat does not merit the mandatory minimum. [53] Here, the robbery offence does not cast too broad of a net as to capture conduct that carries low moral fault or littlerisk to public safety. The gravity of the offence and the culpability of offenders convicted of it is relatively high.

To start, even whencommitted without a firearm, robbery is a serious offence based on the requisite actus reus of the use or threat of violence or force instealing or attempting to steal property. Adding a firearm to the equation simply increases the gravity of the offence. Further, merepossession of the firearm is not sufficient for conviction. The offender must use the firearm in the commission of the offence. As thisCourt wrote in R. v. Felawka, (SCC), [1993] 4 S.C.R. 199, when a firearm is used to threaten or intimidate, it “presentsthe ultimate threat of death to those in its presence” (p. 211).

Prohibited firearms are among the most potent tools in the commission ofcrime. For example, sawed-off rifles are capable of deadly force, while being easier to conceal, transport, and maneuver in closequarters, like convenience stores. [54] The harmful consequences of using a restricted or prohibited firearm in a robbery are readily identified. There is therisk of death or life-altering physical injury for victims and bystanders if the weapon is discharged. 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 offenceslike the one perpetrated by Mr. Hilbach will suffer psychological harm. In R. v. Al-Isawi, 2017 BCCA 163, 348 C.C.C. (3d) 524, theaccused used an imitation firearm to rob 10 small pharmacies and was convicted of 10 counts of robbery pursuant to s. 85(2) of theCriminal Code. Five of the victims reported feelings of hypervigilance, trauma and fear for their personal safety (para. 29). Beyond theimmediate threats to victims, there are wider risks to the community. Wielding a firearm in a store can reasonably provoke force in

response, either by police responding to the robbery in progress or bystanders who attempt to intervene. The risk of escalating violenceis, as a result, acute. [55] The use of an unloaded prohibited firearm does not substantially reduce the offence’s gravity. The presence of afirearm, even an unloaded one, “in and of itself creates a highly volatile and dangerous situation” (Al-Isawi, at para. 57 (emphasis inoriginal)). A loaded firearm can easily be mistaken for an unloaded firearm, not least by the offenders themselves.

A sentencing discountfor wielding unloaded firearms also overlooks the very real risk of an offender accidentally discharging a firearm the offender believedwas unloaded. It also, for practical reasons, overlooks the difficulty of proving whether or not a firearm was loaded, even if the firearmin use was recovered. Moreover, an unloaded firearm is used for the same reason as a loaded firearm: to instill “the ultimate threat ofdeath to those in its presence” (Felawka, at p. 211).

Victims of robbery offences do not know whether the firearm is loaded or unloaded.The same is true for bystanders or police responding to robberies (R. v. Stewart, 2010 BCCA 153, 253 C.C.C. (3d) 301, at para. 37; R. v.Uniat, 2015 ONCA 197, at para. 5 ). Regardless of whether the firearm is capable of deadly force at the time of the offence,“[t]he use of a firearm in the commission of a crime exacerbates its terrorizing effects, whether the firearm is real or a mere imitation.Indeed, they share that very purpose” (Steele, at para. 23).

The psychological trauma involved in a robbery with an unloaded firearm istherefore comparable to a robbery with a loaded one (R. v. Breese, 2021 ONSC 1611, at para. 34 ; R. v. John, 2016 ONSC 396,at para. 27 ; R. v. Stoddart, [2005] O.J. No. 6076 (QL), 2005 CarswellOnt 6523 (WL) (S.C.J.), at para. 6, aff’d 2007 ONCA139, 221 O.A.C. 108; R. v. Asif, 2020 ONSC 1403, at para. 40 ; R. v. Charley, 2019 ONSC 6490, at para. 45 ). So toois the risk of escalating violence. [56] The mental elements required for the minimum to apply suggest a relatively high degree of culpability.

An offenderwho commits robbery with a restricted or prohibited firearm must intend to steal and intend to “use” violence or force (or the threatthereof). A conscious choice must be made to employ violence or force. For the mandatory minimum sentence to apply, that choiceextends to the decision to use a particular firearm to commit the offence — the offender must intend to employ the weapon. The offencedoes not involve an inadvertent decision to put public safety at risk but a conscious choice to put another person’s safety at great risk. [57] There is some breadth to the offence.

At the high end of the spectrum, s. 344(1)(

a) captures, for example, offenderswho organize elaborate, coordinated robberies on large institutions using automatic weaponry and cause serious injuries or death. On thelow end of the spectrum, the

section captures individuals like Mr. Hilbach, conducting unsophisticated hits on gas stations usingunloaded prohibited firearms. This range in gravity and levels of culpability are appropriately reflected in differing sentencing outcomesabove the minimum. However, the thread that connects each case is the intent to both steal and to benefit from the deep terror that comeswith the threat of a firearm at a proximate range. In each case, the offender uses a firearm to induce fear for their victim in service oftheir own benefit.

While the individual circumstances of the accused and the motivations for their conduct vary, these two elementsremain constant. It is this specificity of conduct that Justice Proulx referred to in Lapierre, which aggravates the offence and subjectsoffenders to this minimum (p. 344). [58] Unlike the hypotheticals considered in Nur, individuals who offend s. 344(1)(

a) commit “true crime[s]” (R. v. Nur,2013 ONCA 677, 117 O.R. (3d) 401, at paras. 205-6, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773). It is not the case that the offenceinvolves little or no moral fault and little or no danger to the public (Nur, at paras. 82-83). Individuals found guilty under this

section arenot akin to the hypothetical proffered in Smith, of a young person caught with their first “joint of grass” on their way home to Canada(p. 1053). Unlike the hypothetical scenario relied upon to invalidate the provision at issue in Hills — namely, a situation involving ayoung person using a paintball gun that could not perforate the wall of a typical residence — there is no removing the immediacy ofpersonal threat that is inherent to the offence. The nature and scope of the offence requires the presence of victims. Indeed, there are tworeal victims of Mr. Hilbach’s offence.

For this reason, it has not been demonstrated that this mandatory minimum is so wide that itextends to circumstances that pose relatively little risk of harm (as in Smith, Nur, Lloyd or Hills). (ii) The Effects of the Penalty on the Offender [59] The second component requires courts to consider the effects of the mandatory penalty on the particular offender.

If itinflicts mental pain and suffering on an offender through degrading and dehumanizing treatment or punishment, the punishment isconstitutionally vulnerable to the extent that the offender’s dignity is undermined (Hills, at para. 133; Quebec (Attorney General) v.9147-0732 Québec inc., 2020 SCC 32, at para. 51). [60] In assessing the effects — and therefore the impact — that flow from the prescribed sentence on the actual orhypothetical offender, a court should consider the additional years of imprisonment imposed by the mandatory minimum sentence.Section 12, however, involves a contextual analysis and there is no hard number above or below which a sentence becomes grosslydisproportionate.

A court may consider the conditions experienced by the offender in serving the mandatory sentence, including whetherthe mandatory minimum sentence substitutes imprisonment for a probationary sentence, as well as any characteristics or circumstancesthat enhance the severity of the punishment in the offender’s case (Hills, at para. 133). It bears repeating that the focus is on thesentence, not the possible availability of parole into the assessment of a minimum’s effects (Hills, at para. 104, citing Bissonnette, atparas. 37 and 41, and Nur, at para. 98). [61] The sentencing judge identified two significant effects.

At five years, the mandatory minimum sentence was morethan double a fit and proportionate sentence. The sentence was also qualitatively worse, given it was to be served in a penitentiary. [62] I accept the sentencing judge’s conclusion that the effects of the five-year mandatory minimum sentence are “severe”in Mr. Hilbach’s case. A five-year term of imprisonment would have detrimental implications for Mr. Hilbach’s rehabilitation, given thesentencing judge’s finding that a penitentiary term increased the likelihood that Mr. Hilbach would re-entrench in gang involvement.

It isreasonable in this case to conclude that a five-year mandatory minimum sentence is relatively more severe and, like many Indigenousoffenders, Mr. Hilbach would serve harder time as a result (Gladue, at para. 68). Indigenous offenders are more severely affected byincarceration and are often treated in discriminatory ways in custodial environments. Indigenous people are more likely to experienceuse-of-force incidents in federal penitentiaries and are provided limited access to culturally appropriate programming (Office of theCorrectional Investigator, Annual Report 2021-2022 (2022)).

Further, incarceration itself is often a culturally inappropriate consequencefor wrongdoing for Indigenous offenders (Gladue, at para. 68).

[63] These considerations ultimately support the conclusion that a fit and proportionate sentence would fall below themandatory minimum sentence, notwithstanding the serious violence involved in his offence. Assessed from a purely quantitativestandpoint, additional imprisonment beyond a fit and proportionate sentence is not negligible. Indeed, this Court in Lloyd struck down amandatory minimum sentence of one year’s imprisonment (para. 6).

No one would reasonably volunteer for an extra year or two years injail beyond what a judge considers just as such additional periods of incarceration will result in significant hardship for an offender andtheir loved ones. These effects must therefore carry significant weight. (iii) The Penalty and Its Objectives [64] In this component, courts must first consider which sentencing objectives Parliament prioritized in enact

[…]