Canada’s Supreme Court found one mandatory minimum sentence for a firearm offense unconstitutional and upheld two others in a pair of decisions published on Friday.
Two of the three cases at issue used hypothetical scenarios that defense counsel argued could render these mandatory minimums unconstitutional because they would constitute cruel and unusual punishment in certain instances.
Mandatory minimum sentences have come under fire in Canada from advocates and lawyers who say they take discretion from judges and disproportionately penalize Indigenous and Black people who are over-represented behind bars and in Canada’s criminal justice system.
Canada has tighter gun laws than the United States but higher rates of gun ownership than some other rich countries. The federal government has been criticized by some gun rights advocates for tightening gun laws, including through a freeze on handgun purchases.
In one case, Jesse Dallas Hills had pleaded guilty to four charges, including recklessly discharging a firearm at a home in 2014 in Lethbridge, Alberta. That charge carried a mandatory minimum sentence of four years.
His counsel argued that in some cases, this mandatory minimum could constitute cruel and unusual punishment. The trial judge agreed; the appeal court did not.
The Hills ruling found this mandatory minimum unconstitutional and also said courts “should consider the effect of a sentence on the particular offender.”
This is significant, said lawyer Chris Rudnicki, because it will oblige judges to consider whether Black or Indigenous offenders will have a harder time behind bars and perhaps change sentencings with that in mind.
Steven Penney, a law professor at the University of Alberta, isn’t surprised by the ruling.
“The Supreme Court of Canada over the past 20 years or so has struck down a number of these mandatory minimum sentences and, as in this case, it’s usually done so, not for the reason the sentence imposed, the minimum sentence would be what the court calls grossly disproportionate in relation to what this person actually did, but instead in comparison to what a reasonable offender might have done, who’d be caught by the scope of the offense provision.”
Penney said “in this case, the court pointed to someone who could have been convicted of this offense… where you had a young person firing a BB gun or a paintball gun at something as innocuous as a shed or the side of a home. Yet that person would be subject to a mandatory four-year sentence in prison and the Supreme Court considered that to be grossly disproportionate.
“The court has confirmed that this approach that its taken to assessing whether a sentence is grossly disproportionate, not only to this particular offender but alternatively to a reasonably hypothetical offender, will continue into the future,” Penney added.
In another case, Ocean Hilbach pleaded guilty to robbery with a prohibited firearm in Edmonton, Alberta, in 2017. The trial judge declared the five-year mandatory minimum penalty unconstitutional and an appeals court upheld that finding.
The Supreme Court found that penalty constitutional, as well as that imposed on Curtis Zwozdesky, who pleaded guilty to robbery with a firearm. His counsel used a hypothetical scenario to argue the four-year mandatory minimum sentence constituted cruel and unusual punishment.
Canada’s government repealed more than a dozen mandatory minimum sentences last year and some have been struck down by provincial courts but about 53 criminal offenses remain subject to mandatory minimum penalties, according to the justice department.
“Since 2016, the Department of Justice is aware of a total of 174 lower and appellate courts decisions that have found (mandatory minimum penalties) unconstitutional,” a spokesperson wrote in an email.
With files from Erik Bay, Global News
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