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January 30, 2023
Ottawa, ON (unceded Algonquin Anishnaabeg Territory): The BC Civil Liberties Association (BCCLA) is encouraged, in part, by the Supreme Court of Canada’s approach to mandatory minimum sentences in their decisions for the cases of R. v. Hills and R. v. Hilbach, released on Friday, January 27. Both cases involved challenges to mandatory minimum sentences for firearm-related offences. In these decisions, the Court reaffirmed and clarified its existing s. 12 jurisprudence. In Hills, the Court found that the mandatory four-year sentence for discharging a firearm at a home represented a cruel and unusual punishment, contrary to s. 12 of the Charter. In Hilbach, on the other hand, the Court upheld two mandatory minimum sentences for using a firearm to commit a robbery.
The BCCLA intervened in these cases to argue that a sentence of imprisonment that exceeds a fit sentence by any length is grossly disproportionate—and therefore cruel and unusual—if it is imposed without consideration for the individual circumstances of the offender. The Court specifically addressed our argument in Hills, and while they declined to adopt our reasoning completely, responded by offering important clarifications to the grossly disproportionate standard.
In Hilbach, the Court upheld the five-year mandatory minimum despite finding that three years’ imprisonment was a fit and proportionate sentence, and that a five-year term of imprisonment would have detrimental implications for Mr. Hilbach’s rehabilitation. The Court also found that the mandatory minimum does not advance Parliament’s intention to address the overincarceration of Indigenous people, nor does it promote rehabilitation. These findings underscore the problematic nature of mandatory minimums. The BCCLA agrees with the dissenting judges in this case, who found that a prison sentence nearly double that of a fit sentence is necessarily shocking to the conscience.
Thankfully, two of the three mandatory sentencing provisions being challenged in these cases were repealed by Parliament after these appeals were heard by the Supreme Court. As we have done for nearly two decades, the BCCLA continues to call for mandatory minimum sentences to be abolished. While they may not be unconstitutional, mandatory minimum sentences are simply not good policy.
Emily MacKinnon, counsel for the BCCLA, states:
“The Court agreed with the BCCLA that reasonable hypotheticals are a crucial part of an analysis under s. 12 of the Charter. The Court also agreed with the BCCLA that the circumstances of Indigenous offenders must be taken into account when considering the constitutionality of a sentence. The Court made important comments underscoring the severity of imprisonment, accepting the finding from the BCCLA’s report on mandatory minimum sentencing that incarceration has a serious “ripple effect” on every aspect of the offender’s life and community. These comments will guide judges in future, encouraging them to give mandatory minimum sentences a long hard look before allowing them to pass constitutional muster.”
The BCCLA is represented by Emily MacKinnon, Amanda G. Manasterski and Stephen Armstrong of Osler, Hoskin & Harcourt LLP.
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