Constitutional Challenge Mandatory Minimum Discharging a Firearm (Recklessness)
R v Hills
The Court of Appeal of Alberta upheld as constitutional the four-year mandatory minimum sentence of imprisonment pursuant to section 244.2(3)(B) of the Criminal Code of Canada (‘Criminal Code’) for recklessly discharging a firearm.
This case involved an accused who after consuming large amounts of prescription medication and alcohol, proceeded to hit a complainant’s vehicle with a baseball bat, shot at the vehicle with a loaded rifle, smashed another car’s windows, and then shot at the home of another complainant through their living room window. Mr. Hills could not remember the events and was not sure why he did them. He plead guilty to recklessly discharging a firearm, pointing a firearm, possession of a firearm without a license, and mischief to property under $5000.
At sentencing, a hypothetical situation was considered pursuant to the second prong of the test in R v Nur, 2015 SCC 15 (‘Nur’) for constituting cruel and unusual punishment. The hypothetical presented by defence was “a young person intentionally discharges an air-powered pistol or rifle such as an airsoft pistol, BB gun, paintball marker, calibre pellet rifle, .22 calibre pellet pistol or pellet rifle at a residence” (13). An expert testified at trial that there was minimal risk to the life or safety as the firearms he tested could not go through typical residential walls. Based on this reasonable hypothetical and the expert’s evidence, the sentencing judge found the mandatory minimum to be of no force or effect for being contrary to section 12 of the Charter of Rights and Freedoms (‘Charter’). Mr. Hills received a concurrent sentence of three and a half years imprisonment for discharging the firearm, one year for pointing the firearm, and six months for the unauthorized possession of the firearm and mischief.
The crown appealed the declaration of invalidity of the mandatory minimum and the sentence.
The court allowed the crown’s appeal and substituted a four-year sentence on the discharge offence and stayed the remainder of the custodial sentence. The sentencing judge’s declaration of invalidity of section 244.2(3)(B) of the Criminal Code is of no force or effect. Justice Antonio ruled that given the risk of serious harm that firearms present, it is open to Parliament to create such a mandatory minimum reflecting denunciation and deterrence. She found that not only is there a physical risk of harm but that the psychological and social harm are valid considerations, as well. “The expert evidence does not exclude the possibility that rounds from the tested weapons could penetrate a door or window”. The psychological effects on potential victims or witnesses were not considered, nor was the potential effect on the sense of security in communities. In comparing this case to Nur where a 40-month sentence was given for simple possession of a loaded firearm in public, Justice Antonio reasoned that an additional 8 months (to form the mandatory minimum) could not be grossly disproportionate when an actual firearm was discharged. “Applying judicial experience and common sense, the mandatory minimum penalty was not grossly disproportionate for this reasonable hypothetical”.
Concurring in result, Justice O’Ferrall suggested that the jurisprudence relating to declarations of invalidity due to reasonable hypotheticals ought to be reconsidered and determined that this was not an appropriate case in which to consider the constitutionality of the law. When state action in terms of Charter compliance is at issue, this should be the focus and not on analyzing the validity of the law. Judicial restraint should apply to prevent judges from making declarations of invalidity of law except for in cases of exceptional circumstance. “Determining whether a particular state action infringes a citizen’s Charter rights on the basis of a reasonably foreseeable application of the law to an individual who is not before the court makes no sense”. “Courts ought not to engage in the assessment of the constitutionality of minimum sentence provisions every time an accused complains about cruel and unusual punishment”. The judge, crown, and defence all agreed a term of imprisonment meeting the mandatory minimum would not be cruel and unusual in this case. “The Charter or the criminal law will protect the offender without a declaration that the legislation prescribing such punishment is unconstitutional. But the legislation may need to remain intact in order to communicate society’s view of the prohibited conduct”.
Also concurring in result, Justice Wakeling focused on the fact that as it is in the purview of Parliament to create principles of sentencing. He found there is nothing justifying the ability of a court to render a mandatory minimum unconstitutional when the sentence imposed is actually fit and not cruel or unusual punishment. He held that the principles developed by the Supreme Court of Canada in respect of section 12 of the Charter ought to be reconsidered. Justice Wakeling saw section 12 of the Charter and the term “cruel and unusual punishment” as originally intending to apply to “barbaric punishments” such as “drawing and quartering, disembowelling, burning alive” and not as always (or even usually) relating to disproportionate sentences. He was of the view that not all disproportionate sentences are cruel and unusual. He posits that section 12 of the Charter can only apply to protect someone before the court who is convicted and sentenced, not hypothetical offenders who are differently situated. He also held that the hypothetical is not one that would ever actually occur in reality; no reasonable crown would charge a youth in the circumstances of the hypothetical posed.
Respectfully, the most legally sound and justifiable argument is that of Justice Antonio. Should this reasonable hypothetical fail, it ought to be for the fact that the shooting may occur not only through a wall which was deemed low risk (due to impenetrability), but the potential for other surfaces to be shot through such as glass, that may be of higher risk to result in harm. This may be enough to render the risk of harm and therefore proportionality of the mandatory sentence, potentially just. The seriousness and stake all Canadians have in deterring against the significant harm firearms pose is uncontroverted.
The less sound but still potentially justifiable reason, is her assertion that psychological harm ought to also be considered. This is a slippery slope to justify incarcerating someone mandatorily for a lengthy term when psychological harm is so subjective and hard to measure. Similar reasons exist in the law of torts for why courts are hesitant to order monetary damages for psychological harm. If we do not want people to pay financially for this kind of subjective harm, how can we justify forcing them to pay with their freedom without something more tangible such as the loss of a life, loss of property, or physical harm.
The position of the two concurring justices is troubling in many aspects. They seem to have lost sight of the underlying fact that mandatory minimum punishments are meant to apply to every case sentenced under it. While it is fine to say that for those accused whose situations would actually render the mandatory minimum sentence grossly disproportionate to apply for Charter relief, this ignores the cases of those potential future accused who are unrepresented and cannot make such an argument or do not have the means or resources to fight such a matter. By considering reasonable hypotheticals, it allows the law to develop, progress, and provide a form of access to justice for those who may not otherwise be able to do so in the future and who would thus otherwise have no recourse.
It is an outdated view of the law to regard cruel and unusual punishment as relating to mainly medieval physical forms of punishment. The living tree doctrine requires section 12 take on a modern understanding. It ought to reflect more humane norms, values, and the scientific and sociological advances our society has made. To note is the extreme physical and psychological effects incarceration can have on a person, especially in cases of lengthy terms of incarceration, solitary confinement, and incarceration of the mentally ill. Just because on a strict and literal interpretation of the term “unusual” it is the case that incarceration has been “common” in society, does not mean that it ought to be the standard in every case or that our societal values and norms haven’t shifted over time.
Likewise, to state that a reasonable prosecutor would never charge a hypothetical or future person with such an offence if it is so disproportionate to their conduct, is to completely ignore the reality of the criminal justice system in practice and to put trust and faith in those who are not concerned or tasked with looking out for the best interests of the accused. Our justice system is adversarial in nature and it cannot be presumed that prosecutors will protect accused persons from an unjustified mandatory minimum. Their initial concern upon laying charges is to hold the accused responsible or to face justice in the courts so to speak; regardless of what the evidence eventually reveals their culpability and sentence should be. The crown will not decline to charge or hold someone responsible for an offence just because Parliament has mandatorily legislated a certain punishment that is too harsh such that the person should simply be allowed to go free.
Their reasoning is fatally based on the presumption that incarceration in a length that is disproportionate to the offender could not constitute cruel and unusual punishment. Protecting society cannot be done at the great expense of the freedom of individuals undeserving of the sentence. This highlights the primacy and importance of the principle of proportionality in sentencing; it creates a safety net that we all ought to be glad to be protected by.