Supreme Court Leave to Appeal Watch: Mandatory Minimum Sentences on the Docket Again.

Last week, the Supreme Court granted leave to appeal from two exciting cases out of Alberta. In R v. Hilbach and R v. Zwozdesky, the Court will have the opportunity to opine on whether the mandatory minimum sentences for the offence of robbery with a firearm constitute cruel and unusual punishment.

Ocean Hilbach pleaded guilty and was convicted of robbery while using a prohibited firearm, contrary to s 344(1)(a)(i). Mr Hilbach, aged 19, robbed a convenience store in Edmonton with an unloaded sawed-off shotgun. He “covered his face with his shirt and pointed the gun at two employees demanding cash. His accomplice punched one of the employees and kicked the other. They fled with $290 in lottery tickets and were apprehended a short time later.”

The sentencing judge found that the mandatory minimum sentence, in the case of a first offence, of five years, was cruel and unusual in Mr. Hilbach’s circumstances. While his actions were undoubtedly wrongful and deserving of punishment, the judge noted that several factors, including important Gladue factors, demonstrated that a lighter sentence was warranted: Mr. Hilbach was an Indigenous teenager with a family history of residential school attendance. He had an 18-month-old daughter, a grade 10 education, and “a history of physical abuse, family violence, chronic unemployment, and gang involvement”. The sentencing judge determined that five years in prison was going to do far more harm to this young man than good. He sentenced Mr. Hilbach to two years less a day instead, so that the offender could be eligible for probation.

Curtis Zwozdesky pleaded guilty and was convicted of using a firearm, as a party to the offence, in the course of two robberies contrary to s 344(1)(a.1). Mr. Zwozdesky was the driver of the “getaway vehicle” when he and two others robbed a convenience store in Caslan, Alberta. At the time of the offence, Mr. Zwozdesky was 53 years of age, had no prior record, and had a grade 9 education. Due to a serious motor vehicle accident some decades ago, he was unemployed and had been diagnosed with severe post-traumatic cognitive dysfunction, fibromyalgia, nerve damage and chronic pain. He used prescription drugs and hard and soft illegal drugs for pain management. He said he had no memory of the first robbery.

The sentencing judge in Mr. Zwozdesky’s case also found the offender’s blameworthiness to be “medium to high”, but nonetheless found that the mandatory minimum sentence of four years was cruel and unusual. A wide variety of people in a wide variety of circumstances may commit the offence of robbery with a prohibited firearm, and not all of those people are of equal blameworthiness. The mandatory minimum was found to be overbroad. However, the sentencing judge determined that the mandatory minimum was appropriate for the offender before her; Mr. Zwozdesky was sentenced to a total of four years for both offences.

The majority of the Alberta Court of Appeal (2020 ABCA 332) agreed with the sentencing judges, though they would have increased Mr. Hilbach’s sentence to three years. A dissenting judge would have allowed the Crown’s appeals and set aside the declarations of unconstitutionality.

The Supreme Court has done a lot of work on section 12 of the Charter in the last three years, arguably expanding the definition of what types of sentences meet the definition of cruel and unusual punishment. In R. v. Boudreault, the Court struck down the mandatory victim surcharge that added a relatively small fine onto every charge of which a person was convicted. The Court found that, for some offenders, this additional punishment was cruel and unusual; it violated their dignity by effectively imposing an indeterminate sentence. Boudreault was the first time that section 12 was successfully used to strike down a monetary penalty.

Opening up section 12 to monetary penalties also seemed to open up the protective ambit of section 12 to corporations. In Quebec (Attorney General) v. 9147-0732 Québec inc., the Supreme Court confirmed that corporations cannot benefit from constitutional protection against cruel and unusual punishment. As Boudreault explained, section 12 protects the human dignity of all persons under the law. Since corporations do not have human dignity, section 12 does not apply to them.

It will be interesting to see what the court does with Hilbach and Zwozdesky. Section 12 is becoming an increasingly powerful tool to curb what some see as the excesses of our criminal justice system. This is particularly true of the ongoing overrepresentation of Indigenous people in our penal system. The test used by courts to determine whether a punishment is cruel and unusual permits judges to consider the punishment at issue when applied to the most vulnerable and least blameworthy possible offender. For me, when considering such a person’s situation, their full humanity exposed for consideration—I’m thinking of the example of Mr. Michael in Boudreault—mandatory minimum sentences almost always seem overbroad. But we know that in many past cases, the Supreme Court has upheld mandatory minimum sentences on the grounds that, while they might sometimes require harsher punishments than would have been chosen by a sentencing judge looking at the whole picture of an individual offender, they are not so harsh as to constitute cruel and unusual punishment. In our constitutional order, Parliament gets the final word on deciding what degree of punishment is appropriate, so long as the chosen punishment does not “shock the conscience”. Is section 12 a check only on Parliament’s most extreme or ill-considered choices? Or is it a tool that can be used to insist on the fundamental value of human dignity in sentencing, no matter how reasonable the punishment may seem on first glance? We’ll know in a year or so.