This week’s top three summaries: R v Hills, 2023 SCC 2: s12 #cruel and unusual, R v MV, 2023 ONCA 739: 1.5 to 1 on #prison time, and R v Tran, 2023 ONCA 11: TJ cannot raise #concoction in judgment.

This week's top case deals with sentencing issues. For great general reference on the law of sentencing, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.

R v Hills, 2023 SCC 2

[January 27, 2023] Charter s.12 Constitutionality: Cruel and Unusual Punishment - Mandatory Minimums [Reasons by Martin J. with Wagner, Moldaver, Karakatsanis, Brown, Rowe, Kasirer, and Jamal JJ. concurring and Côté JJ. dissenting]

AUTHOR’S NOTE: Section 12 of the Charter protects us from mandatory minimum sentences that cause grossly disproportionate sentences. Leaving discretion in the hands of the judiciary where it belongs, this case does away with a number of arguments against judicial discretion to overturn mandatory minimum prison sentences and reinforces the jurisprudence of the Court (particularly over the years dealing with the Harper mandatory minimums imposed on the Criminal Code). The case also gives a great blue print to follow for future cases. Gross disproportion is a high standard and not all minimums will meet it. Minimum sentences that are aimed a limited group of offenders in limited circumstances stand a much greater chance of surviving such a challenge: see the companion case of R v Hillbach, 2023 SCC 3

I.               Introduction

[1] This appeal, and the companion appeal of R. v. Hilbach, 2023 SCC 3, provide the Court with an opportunity to clarify the legal principles that govern when the constitutionality of a mandatory minimum sentencing provision is challenged under s. 12 of the Canadian Charter of Rights and Freedoms. ... Mr. Hills challenges the four-year mandatory minimum sentence previously imposed by s. 244.2(3)(b) for this offence. The mandatory minimum sentence prescribed in s. 244.2(3)(b) was repealed after this appeal was heard. Despite this legislative change, the reasons examine the impugned mandatory minimum as previously enacted. In the companion case, Ocean William Storm Hilbach and Curtis Zwozdesky were convicted of armed robbery. They challenge, respectively, the five-year mandatory minimum for robbery with a restricted or prohibited firearm under s. 344(1)(a)(i) and the former four-year mandatory minimum for robbery with a firearm under s. 344(1)(a.1). The mandatory minimum sentence set out in s. 344(1)(a.1) was also repealed after the Hilbach appeal was heard.

[2] ... Mr. Hills and Mr. Zwozdesky admit that the minimum sentences were warranted based on the facts of their cases, but nevertheless challenge the law based on how the sentencing provisions could reasonably apply to others for whom they claim the minimum penalties imposed would be constitutionally infirm punishments.

[3] ... The principles for assessing whether a punishment is cruel and unusual are well established and were recently and unanimously affirmed in R. v. Bissonnette, 2022 SCC 23. In this decision, the Court seeks to provide further guidance, direction and clarity. These reasons offer a framework in response to submissions in both this appeal and in Hilbach. As such, I will not distinguish between submissions from counsel in both cases addressing suggested changes to the s. 12 framework.

[5] In respect of Mr. Hills, I conclude that s. 244.2(3)(b) is grossly disproportionate. Here, the evidence showed that numerous air‑powered rifles constituted “firearms”, including air-powered devices like paintball guns, even though they could not perforate the wall of a typical residence. It is also reasonably foreseeable that a young person could intentionally discharge such a “firearm” into or at a place of residence. This provision therefore applies to an offence that captures a wide spectrum of conduct, ranging from acts that present little danger to the public to those that pose a grave risk. Its effect at the low end of the spectrum is severe. The mandatory minimum cannot be justified by deterrence and denunciation alone, and the punishment shows a complete disregard for sentencing norms. The mandatory prison term would have significant deleterious effects on a youthful offender and it would shock the conscience of Canadians to learn that an offender can receive four years of imprisonment for firing a paintball gun at a home. As a result, s. 244.2(3)(b) imposes a mandatory minimum of four years’ imprisonment for a much less grave type of activity such that it is grossly disproportionate and amounts to cruel and unusual punishment.

[9] Mr. Hills committed his offence using a hunting rifle, which is classified as an ordinary firearm. As a result, he was subject to the four‑year minimum for s. 244.2(1)(a) listed in s. 244.2(3)(b). To appreciate the scope of s. 244.2(1)(a) and the mandatory minimum sentence in question, it is necessary to review the meaning of a “firearm” under the Criminal Code and Canada’s regulatory scheme for firearms.

[11] To start, s. 244.2(1)(a) incorporates the Criminal Code definition of a firearm. Section 2 of the Criminal Code generally defines a “firearm” as “a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm”. While firearms are defined as “weapons”, they do not need to meet the Criminal Code definition of a weapon (R. v. Dunn, 2013 ONCA 539, 117 O.R. (3d) 171, at para. 66, aff’d 2014 SCC 69, [2014] 3 S.C.R. 490).

[12] Courts rely on the “pig’s eye test” to determine whether a barrelled weapon is capable of causing serious bodily injury or death and thus meets the definition of a “firearm” in the Criminal Code (Dunn, at paras. 8 and 40). The test asks whether a projectile fired from the device can rupture a pig’s eye, which is physiologically similar to a human eye (para. 8). Since a ruptured eye is a “serious bodily injury”, a “firearm” is any barrelled, projectile‑firing device capable of putting someone’s eye out (paras. 8 and 40). As the expert evidence on this appeal establishes, some air-powered devices, like BB guns, airsoft guns, and paintball guns, are capable of firing projectiles with enough velocity to rupture a pig’s eye. As a result, they can be classified as firearms under the Criminal Code.

[13] ... Specifically, at issue in this appeal is the exemption in s. 84(3)(d)(i):

(3) For the purposes of sections 91 to 95, 99 to 101, 103 to 107 and 117.03 of this Act and the provisions of the Firearms Act, the following weapons are deemed not to be firearms:

(d) any other barrelled weapon, where it is proved that the weapon is not designed or adapted to discharge

(i) a shot, bullet or other projectile at a muzzle velocity exceeding 152.4 m per second or at a muzzle energy exceeding 5.7 Joules . . . .

[14] Under s. 84(3)(d)(i), some air-powered devices that meet the pig’s eye test and constitute firearms under the Criminal Code are nevertheless exempted from the Firearms Act, since their muzzle velocity falls at or below 152.4 metres per second. As a result, even though they are “firearms” for the purposes of the Criminal Code,they can be freely possessed without a firearms licence.

[15] The implication for this appeal is that some air-powered devices, which can be freely possessed in Canada, are “firearms” for the purposes of s. 244.2(1)(a). Put simply, an offender could be convicted under s. 244.2(1)(a) for firing a BB gun or a paintball gun at a shed. This offender would then be subject to the four‑year mandatory minimum. ...

III.         Facts and Judicial History

[16] During an incident on May 6, 2014, Mr. Hills attacked two vehicles and a residence. In the hours prior to the incident, Mr. Hills consumed a large volume of prescription medication and alcohol. Around midnight, while intoxicated, he left his home in Lethbridge, Alberta with a loaded .303 Enfield bolt action rifle and a baseball bat. The rifle was designed for big game hunting.

[17] Mr. Hills proceeded to swing his bat at a passing car before firing a shot at it. The driver called 9‑1‑1. Before police arrived, Mr. Hills turned his attention to an unoccupied parked car, and smashed its windows with the bat. Mr. Hills then approached a new target: a residential home. He fired a round that went through the home’s living room window and through a wall into a computer room before it stopped in a drywall stud and bookcase.

[18] At the time Mr. Hills fired his shots, the home was occupied by two parents and their two children. The father was sitting in the computer room when Mr. Hills fired his first shot. The father left the computer room to investigate and heard another shot. He ran to alert the mother and pressed the panic alarm on his security system. He then heard what sounded like Mr. Hills trying to break through the front door. The father opened the door and yelled at Mr. Hills to get away. As the father grabbed an axe to defend himself, Mr. Hills fired again.

[19] The father managed to retreat and call 9‑1‑1. He went to the basement with the rest of his family where they waited for police to arrive. When police arrived, they discovered several rounds had penetrated the home. The rounds were fired into areas of the home where a person could have been standing and hit.

[20] After a preliminary inquiry, Mr. Hills pled guilty to four offences: discharging a firearm into or at a house contrary to s. 244.2(1)(a) of the Criminal Code, pointing a firearm at the occupant of a car, possession of a firearm without a licence, and mischief to property under $5,000. Mr. Hills was unable to recollect the events or the motive for his actions.

A.           Alberta Court of Queen’s Bench, 2018 ABQB 945, 79 Alta. L.R. (6th) 161

[21] At sentencing, Mr. Hills brought a challenge under s. 12 of the Charterto the mandatory minimum sentence of four years ...

[22] Mr. Hills relied on a scenario where the hypothetical culprit discharged a firearm that was incapable of penetrating a typical residential wall. A firearms expert, called on Mr. Hills’ behalf, tested eight different types of air‑powered pistols or rifles and concluded that while they met the Criminal Code definition of a firearm, many of them were incapable of penetrating the wall of a house.

[23] The sentencing judge, in light of the expert evidence, agreed that s. 244.2(3)(b) was grossly disproportionate in the reasonably foreseeable scenario where “a young person intentionally discharges an air-powered pistol or rifle such as an airsoft pistol, BB gun, paintball marker, .177 calibre pellet rifle, a .22 calibre pellet pistol or pellet rifle at a residence” (para. 14). The culprit in this situation clearly committed an offence of lesser gravity than the other conduct caught by the provision: the behaviour was of low moral blameworthiness and the risk of harm was also low. He concluded the infringement of s. 12 could not be justified under s. 1 of the Charter.

IV.         Issues

[29] This appeal raises two questions. First, whether the mandatory minimum sentence mandated by s. 244.2(3)(b) of the Criminal Codeconstitutes cruel and unusual punishment such that it violates s. 12 of the Charter. Second, whether the Alberta Court of Appeal erred in failing to consider Mr. Hills’ Gladue report and his Métis status in re-sentencing him.

V.           Analysis

[30] Mr. Hills concedes the mandatory minimum sentence is not grossly disproportionate on the facts of his case. He argues, however, that this high bar is met in reasonably foreseeable scenarios in which other differentially situated reasonably foreseeable offenders are likely to be involved. In particular, he says it is met in the hypothetical case of a youthful offender who fires an air-powered pistol or rifle at a house. The Crown concedes this scenario is reasonably foreseeable, but maintains the mandatory minimum sentence is not grossly disproportionate in this hypothetical. ...

A.           The Protection Against Cruel and Unusual Punishment Under Section 12 of the Charter

[31] Section 12 of the Charter grants individuals a right not to be subjected to any cruel and unusual treatment or punishment by the state. As a threshold issue, an impugned measure must initially qualify as “treatment” or “punishment” to fall within s. 12. State action amounts to punishment where it: “(1) . . . is a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and either (2) . . . is imposed in furtherance of the purpose and principles of sentencing, or (3) . . . has a significant impact on an offender’s liberty or security interests” (Bissonnette, at para. 57, citing R. v. Boudreault2018 SCC 58, [2018] 3 S.C.R. 599, at para. 39,

[33] The analytical approach under s. 12 spans many years and has been used to address different types of legal issues. Mandatory minimum sentences have been considered in Smith, R. v. Luxton, 1990 CanLII 83 (SCC), [1990] 2 S.C.R. 711, R. v. Goltz, 1991 CanLII 51 (SCC), [1991] 3 S.C.R. 485, R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, R. v. Ferguson2008 SCC 6, [2008] 1 S.C.R. 96, Nur, and most recently in R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130. A mandatory victim surcharge which applied to all offences was struck down in Boudreault; a mandatory weapons prohibition order was upheld in R. v. Wiles2005 SCC 84, [2005] 3 S.C.R. 895; and a sentence of life imprisonment with parole ineligibility of 10 years was upheld in R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3.

[34] In Bissonnette, this Court invalidated the stacking of periods of parole ineligibility in cases of multiple murder convictions and reaffirmed and consolidated the well-established analytical approach under s. 12. ...

[35] Bissonnette also confirmed that s. 12 has two prongs that are united by their shared animating purpose of safeguarding human dignity. First, s. 12 protects against the imposition of punishment that is “so excessive as to be incompatible with human dignity” (para. 60). This prong of cruel and unusual punishment is concerned with the severity of a punishment — it queries not whether an impugned punishment is excessive or disproportionate, but whether its effects are grossly disproportionate to the appropriate punishment in a given case (paras. 61 and 68; Nur, at para. 39; Morrisey, at para. 26). Under the first prong, it is not the nature or type of punishment that is at issue, but the amount or quantity of punishment imposed: the focus is whether its particular effects make it grossly disproportionate and thereby constitutionally infirm (Bissonnette, at para. 62).

[36] Second, s. 12 protects against the imposition of punishment and treatment that are cruel and unusual because, by their very nature, they are “intrinsically incompatible with human dignity” (Bissonnette, at para. 60). Under the second prong, the focus is on the method of punishment. The narrow class of punishments that fall within the second category “will ‘always be grossly disproportionate’ because . . . [t]hese punishments are in themselves contrary to human dignity because of their ‘degrading and dehumanizing’ nature” (para. 64, quoting Smith, at p. 1073; 9147-0732 Québec inc., at para. 51).

[38] Despite this absence of discretion, mandatory minimum sentence provisions have not been found to be inherently or presumptively unconstitutional. As this Court stated in Smith, “[t]he legislature may . . . provide for a compulsory term of imprisonment upon conviction for certain offences without infringing rights protected by s. 12 of the Charter” (p. 1077; see also p. 1072). Nevertheless, the absence of any discretion, as well as the manner of their operation, expose their constitutional vulnerabilities. Mandatory minimums can “function as a blunt instrument” and “deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range” (Nur, at para. 44). In “extreme cases”, they may impose unjust sentences “because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality” (para. 44). When the effects of the impugned punishment are grossly disproportionate to what would have been appropriate (Smith, at p. 1072), the punishment is cruel and unusual because it shows the “state’s complete disregard for the specific circumstances of the sentenced individual and for the proportionality of the punishment inflicted on them” (Bissonnette, at para. 61).

B.            The Framework for Assessing Grossly Disproportionate Sentences

(1)           Overview

[40] To assess whether a mandatory minimum violates s. 12 of the Charter, this Court has developed a two-stage inquiry that involves a contextual and comparative analysis (Bissonnette, at para. 62). A court must:

1.     Assess what constitutes a fit and proportionate sentence having regard to the objectives and principles of sentencing in the Criminal Code (Bissonnette, at para. 63; Boudreault, at para. 46; Nur, at para. 46).

2.     Consider whether the impugned provision requires the imposition of a sentence that is grossly disproportionate, not merely excessive, to the fit and proportionate sentence (Bissonnette, at para. 63; Nur, at para. 46; Smith, at p. 1072). The constitutional bar is set high to respect Parliament’s general authority to choose penal methods that do not amount to cruel and unusual punishment.

[41] 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 or hypothetical scenario (Bissonnette,at para. 63; Nur, at para. 77).

[42] Where the court concludes that the term of imprisonment prescribed by the mandatory minimum sentence provision is grossly disproportionate in either case, the provision infringes s. 12 and the court must turn to consider whether that infringement can be justified under s. 1 of the Charterif arguments or evidence to that effect are raised by the Crown (Boudreault, atpara. 97; Nur, at para. 46).

(2)           Applying the Framework

[44] The first stage of the s. 12 inquiry involves the individualized process of determining what a fit and proportionate sentence is for the particular (or representative) offender under consideration using the general sentencing principles set out by Parliament. While this is a daily occurrence in courts across this country, it involves a complex and multifactorial assessment. Judges are tasked with crafting sentences that balance various sentencing objectives, account for aggravating and mitigating factors, and are proportionate to the gravity of each offence and the moral blameworthiness of the offender.

[45] The second stage requires a contextual comparison between the fit sentence and the impugned mandatory minimum to see whether the latter complies with the widely-worded right set out in s. 12. Judges must consider the uniform and mandatory minimum sentence Parliament has selected for particular crimes. A mandatory minimum is a penal provision of a very different type in which Parliament has intentionally removed discretion and has instead given priority to certainty, deterrence, denunciation and sometimes removing the offender from society. It has not only specified a minimum penalty, it anticipates that the minimum penalty will apply automatically regardless of how the crime was committed or by whom. The same punishment or period of incarceration applies both to the full breadth of the conduct criminalized and to “everyone” who commits it, no matter how diversely situated.

[47] It is not therefore the existence of some disproportion which will offend the grossly disproportionate requirement of s. 12. Stated otherwise, the analysis of the grossly disproportionate standard poses the following question: is the difference between the fit sentence and the mandatory minimum sentence so grossly disproportionate that it violates human dignity such that it amounts to cruel and unusual punishment? According to well‑established jurisprudence, the challenged penalty may be unfit, excessive and disproportionate, but it only crosses the constitutional line when it becomes grossly disproportionate. This question raises the common challenge of distinguishing the gradations and demarcations between related legal standards and reaching a conclusion about which legal standard is met. While it is frequently difficult to gauge questions of degree or to measure when something that is otherwise permitted has become grossly disproportionate, many legal standards require just this type of analysis. Whether under s. 12 or s. 7 of the Charter, there will be a continuum between exact fit and gross disproportion, and a judge not only has the authority to make such a determination, but is recognized as being well placed to do so: “This is the sort of inquiry judges have consistently conducted in Charter review” (Nur, at para. 60).

[49] ... Elaborating on the multiple, sometimes nuanced, questions and normative standards that are/may be considered within the framework, should help bring an end to the “exaggerated debate” sometimes applied to s. 12 (para. 61, per McLachlin C.J.). While no major methodological shifts are warranted, the Court seeks to provide greater clarity and more guidance.

C.            Stage One: Determining a Fit and Proportionate Sentence

[50] In this section I outline the first stage of the s. 12 inquiry, which is how to determine a fit and appropriate sentence. I begin by addressing the situation in which the constitutional challenge involves the particular offender before the court. This will involve a familiar task: a full consideration of all relevant sentencing provisions in the applicable legislation and jurisprudence. Since proportionality in sentencing relates to the gravity of the offence and the moral culpability of the individual before the court, there will necessarily be a consideration of the circumstances of the commission of the offence and the personal characteristics of the offender. The goal should be to determine as specific a punishment as would emerge from a traditional sentencing hearing — especially because this is the penalty that would be served if the mandatory minimum were declared unconstitutional.

[51] I then turn to cases in which the constitutional challenge involves the presentation of reasonably foreseeable offenders by way of hypothetical scenarios. Since what is being challenged is a law of general application, this Court has repeatedly used and authorized the use of reasonable hypotheticals to test the law’s scope, reach, nature and effects. I explain the purposes they serve and the limitations to which they are subject. They may include personal characteristics but they must be reasonable in the sense of being reasonably foreseeable and realistic. While a bit more flexibility is needed to determine what a proportionate sentence would be for a reasonably foreseeable offender, every attempt at precision is encouraged to ensure that the comparison under stage two may be conducted in a fair manner.

(1)           Sentencing an Individual Offender

[52] When the constitutional challenge to a mandatory minimum proceeds on the basis of the particular circumstances of the individual offender charged and convicted, the task for the judge at stage one of the s. 12 inquiry set out in Nur is a familiar one: to determine a fit and proportionate sentence for the particular offender before the court.

(a)           General Sentencing Principles

[53] The general principles of sentencing in the Criminal Codeand the common law govern when evaluating the just and appropriate sentence for the actual or reasonably foreseeable offender (Nur,at paras. 40-42). Each sentence must be selected based on the particular facts of the case and in light of existing case law (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43). Courts should employ sentencing tools and guides that are most relevant to their jurisdiction. In crafting a fit sentence, judges may reference sentencing ranges or starting points as appropriate to reach a proportionate sentence, so far as these tools align with established principles and objectives of sentencing (see R. v. Parranto, 2021 SCC 46, at para. 16).

[54] To assist in evaluating what constitutes a just and appropriate punishment in a given case, Parliament enacted s. 718 of the Criminal Code...

[55] In addition, s. 718.2(e) of the Criminal Code provides a mandatory direction to consider the unique situation of Aboriginal offenders for all offences (Gladue, at para. 93; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 84-85).

(b)         Proportionality

[56] Proportionality is a “central tenet” of Canada’s sentencing regime, with roots that predate the recognition of it as the fundamental principle of sentencing in s. 718.1 of the Criminal Code(Ipeelee, at para. 36, citing R. v. Wilmott (1966), 1966 CanLII 222 (ON CA), 58 D.L.R. (2d) 33 (Ont. C.A.);see R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309, at para. 12; Nasogaluak, at paras. 40-42; R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at paras. 40-42). Indeed, “whatever weight a judge may wish to accord to the objectives [for sentencing prescribed in ss. 718 to 718.2 of the Criminal Code], the resulting sentence must respect the fundamental principle of proportionality” (Nasogaluak, at para. 40 (emphasis in original)).

[57] The purpose of proportionality is founded in “fairness and justice” (R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538 (C.A.), at p. 546). It is to prevent unjust punishment for the “sake of the common good” (p. 547) and it serves as a limiting function to ensure that there is “justice for the offender” (Ipeelee, at para. 37). As the “sine qua non of a just sanction” (para. 37), the concept expresses that the amount of punishment an offender receives must be proportionate to the gravity of the offence and the offender’s moral blameworthiness (R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180, at paras. 70-71; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 51‑54; Ipeelee, at paras. 36 and 38; Nur, at para. 43; C. C. Ruby, Sentencing (10th ed. 2020), at §2.14).

[58] The “gravity of the offence” refers to the seriousness of the offence in a general sense and is reflected in the potential penalty imposed by Parliament and in any specific features of the commission of the crime (R. v. Hamilton(2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at para. 90). The gravity of the offence should be measured by taking into account the consequences of the offender’s actions on victims and public safety, and the physical and psychological harms that flowed from the offence. In some cases where there is bias, prejudice or hatred, the motivation of the offender may also be relevant (see s. 718.2(a)(i) of the Criminal Code). The offender’s moral culpability or degree of responsibility should be measured by gauging the essential substantive elements of the offence including the offence’s mens rea, the offender’s conduct in the commission of the offence, the offender’s motive for committing the offence, and aspects of the offender’s background that increase or decrease the offender’s individual responsibility for the crime, including the offender’s personal circumstances and mental capacity (Hamilton, at para. 91; Boudreault,at para. 68; Ipeelee, at para. 73).

[59] Further, the sentence imposed must be commensurate with the responsibility and “moral blameworthiness of the offender” (Ipeelee, at para. 37). The sentence must be no greater than the offender’s moral culpability and blameworthiness (Nasogaluak,at paras. 40-42; M. (C.A.), at para. 40; R. v. Martineau, 1990 CanLII 80 (SCC), [1990] 2 S.C.R. 633, at p. 645).

(c)           The Sentence Should Be Specific and Defined

[63] During the course of argument, counsel often argue for a punishment within a certain sentencing range, or courts of appeal establish ranges or starting points to pursue parity. Nevertheless, a sentencing judge cannot at the end of the day simply approximate a sentence or otherwise provide a range of penalties. The judge is expected to articulate an individual, specific and defined sentence. They cannot order that an offender be imprisoned for around two or three months, or that a sentence be “around three years” or “fall within the range of time”. Judges must exercise their discretion in each case and fix a specific and defined punishment.

(2)           Sentencing Reasonably Foreseeable Offenders and the Use of Reasonable Hypotheticals

[67] In other cases, the courts will be asked to consider the circumstances of reasonably foreseeable offenders not before them. In these cases, the constitutional analysis will be supplemented by or conducted on the basis of reasonable hypothetical scenarios that raise realistic issues about the scope of the mandatory minimum and its application to everyone. Justices O’Ferrall and Wakeling propose that this Court abandon the use of reasonably foreseeable scenarios. In my opinion, this proposal runs counter to the jurisprudence of this Court and lacks merit. ...

(a)           Reasonably Foreseeable Hypotheticals Are an Accepted and Appropriate Analytical Tool

[[69] Since Smith, reasonable hypothetical situations have been either expressly used by this Court to invalidate sentencing provisions (see Nur, at paras. 82-83;Lloyd, at paras. 32-33; Boudreault, at para. 55), or affirmed as a matter of principle where they were not relied upon (see Goltz, at p. 515; Morrisey, at paras. 31 and 51-53; Ferguson, at para. 30; Bissonnette, at para. 63). Importantly, in the three cases in which this Court has struck down mandatory minimums, it has done so on the basis of a reasonable hypothetical offender (Smith, Nur and Lloyd).

[70] Beyond s. 12, the assessment of a law’s scope based on reasonable hypotheticals is an accepted analytical inquiry in Charterchallenges more generally. They have been relied upon as an analytical tool in s. 7 jurisprudence, resulting in successful Charterchallenges (R. v. Heywood,1994 CanLII 34 (SCC), [1994] 3 S.C.R. 761, at p. 799; R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754, at paras. 29-30 and 72-75; R. v. Ndhlovu,2022 SCC 38, at paras. 87-88).

[71] This Court in Nur set out certain binding principles about the use of reasonable hypotheticals. Chief Justice McLachlin said the use of reasonable hypotheticals was “at the heart of th[e] case” (para. 47) and placed them at the protected core of the s. 12 analysis. This Court firmly and clearly rejected the argument that reasonable hypotheticals should be abandoned and that the primary or exclusive focus ought to be on the offender before the court (paras. 48-64; see also C. Fehr, “Tying Down the Tracks: Severity, Method, and the Text of Section 12 of the Charter” (2021), 25 Can. Crim. L.R. 235, at p. 240). Even as early as 2015, it was recognized that “excluding consideration of reasonably foreseeable applications of a mandatory minimum sentencing law would run counter to the settled authority of this Court and artificially constrain the inquiry into the law’s constitutionality” (Nur, at para. 49).

[72] Foreclosing the consideration of the reasonably foreseeable impacts of an impugned law “would dramatically curtail the reach of the Charter and the ability of the courts to discharge their duty to scrutinize the constitutionality of legislation and maintain the integrity of the constitutional order” (Nur, at para. 63). Because it is the “nature of the law” that is at issue, not the claimant’s status, it suffices for a claimant to allege unconstitutional effects in their case or on third parties (para. 51, quoting R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at p. 314). In crafting reasonable hypotheticals, a court is examining the scope of the impugned law and “not merely the justice of a particular sentence imposed by a judge at trial” (Goltz,at p. 503; see Big M Drug Mart,at p. 314; Nur,at para. 60). Further, “[i]f the only way to challenge an unconstitutional law were on the basis of the precise facts before the court, bad laws might remain on the books indefinitely” (Nur, at para. 51).

[73] The effective use of judicial resources also favours the use of reasonable hypotheticals as they allow one judge to consider an impugned mandatory minimum from multiple vantage points and they help reduce the number of challenges that will be heard in or among jurisdictions. Importantly, they promote the rule of law by underscoring how no one should be convicted or sentenced under an unconstitutional law (Lloyd, at para. 16). Hence, “allowing accused to employ reasonable hypothetical scenarios is more likely to further the purpose of the Charter: protecting citizens from abuse of state power” (Fehr, at p. 236).

[74] It is for these reasons that, to repeat McLachlin C.J., “[t]his Court has consistently held that a challenge to a law under s. 52 of the Constitution Act, 1982 does not require that the impugned provision contravene the rights of the claimant” (Nur, at para. 51; see also Goltz, at pp. 503-4). Under well-established case law, there is no need to wait for a “real” offender to appear to impugn the constitutionality of a provision of general application.

[75] Justices O’Ferrall and Wakeling’s desire to excise the use of reasonably foreseeable scenarios from this Court’s s. 12 framework is thus completely contrary to both precedent and principle. ...

(i)            The Hypothetical Must Be Reasonably Foreseeable

[78] Throughout the case law there is a legitimate concern that the hypotheticals must be reasonable. They ought not to be “far-fetched or marginally imaginable cases”, nor should they be “remote or extreme examples” (Morrisey, at para. 30, quoting Goltz, at pp. 506 and 515). In Goltz, the Court focussed on circumstances that “could commonly arise in day‑to‑day life” (p. 516).

[79]  Greater flexibility was introduced in Nur when the Court held that the appropriate approach is to construct a reasonably foreseeable offender with characteristics and in circumstances that are reasonablyforeseeable based on judicial experience and common sense (para. 62). Nur’s selection and use of reasonable foreseeability is significant and goes beyond whether a projected application of the law is common or likely:

The reasonable foreseeability test is not confined to situations that are likely to arise in the general day‑to‑day application of the law. Rather, it asks what situations may reasonably arise. It targets circumstances that are foreseeably captured by the minimum conduct caught by the offence. Only situations that are “remote” or “far-fetched” are excluded . . . . [para. 68]

(ii)         Reported Cases May Be Considered in the Analysis

[81] ... However, courts are not limited to hypotheticals from the cases available to them.

(iii)        The Hypothetical Must Be Reasonable in View of the Range of Conduct in the Offence in Question

[83] To be reasonable, the hypothetical must be tailored to the offence in question. It needs to involve conduct that falls within the relevant provision. The scope of the offence can be explored and it is permissible to establish the breadth of the offence by reference to how it may be committed and by whom. However, straining each and every constituent element by fanciful facts is not helpful.

(iv)         Personal Characteristics May Be Considered as Long as They Are Not Tailored to Create Remote or Far-fetched Examples

[86] This Court should not depart from the methodology and approach affirmed in Nur, Lloyd, and Boudreault. As a rule, characteristics that are reasonably foreseeable for offenders in Canadian courtrooms, like age, poverty, race, Indigeneity, mental health issues and addiction, should not be excluded from consideration. ...

[90] Including immutable personal characteristics in hypothetical scenarios strengthens the analytical device by helping courts explore the reach of the mandatory penalty. Individuals with reduced culpability may find themselves subject to mandatory minimum penalties. It is possible Parliament set penalties with a certain offender in mind without fulsome consideration of how the mandatory penalty may apply to offenders with reduced moral blameworthiness due to their disadvantaged circumstances, including marginalization or systemic discrimination.

(v)           Reasonable Hypotheticals Are Best Tested Through the Adversarial Process

[93] It is up to the offender/claimant to articulate and advance the reasonably foreseeable hypothetical which forms the basis for the claim that the impugned provision is unconstitutional. All parties should ideally be afforded a fair opportunity to challenge or comment upon the reasonableness of the hypothetical before making submissions on its constitutional implications. ...

(c)           Sentencing a Reasonably Foreseeable Offender

[94] The same general sentencing principles apply when fixing a sentence for a reasonably foreseeable offender. This means that sentencing judges will: be bound by the Criminal Code; consider the sentencing proposals argued by counsel; and utilize the method of analysis endorsed in their jurisdiction (whether sentencing ranges or starting point-sentences). As with cases involving an actual offender, courts should fix as narrowly defined a sentence as possible for a reasonably foreseeable offender. A court, however, may find it somewhat more difficult to fix a specific sentence for a reasonably foreseeable offender, given that hypotheticals are advanced without evidence or detailed facts. Accordingly, in fixing the fit sentence for reasonably foreseeable offenders, some latitude may be necessary. ...

[95] Setting too wide a scope for what would be a fit sentence could skew the analysis and distort the gross disproportionality assessment by unfairly reducing the disparity between the sentence imposed and the mandatory minimum. Indeed, because the purpose of the reasonable hypothetical is to test the limits of the scope of application of a mandatory minimum, the lowest fit sentence that is reasonably foreseeable will figure prominently in the assessment.

[96] I will now turn to the second stage of the analysis.

D.           Stage Two: The Gross Disproportionality Standard

(1)           Section 12’s Protection Against Cruel and Unusual Punishment Applies to Cruel and Unusual Periods of Imprisonment

[99]  Justices O’Ferrall and Wakeling erred in their result and in their reasoning. ...

[100] Specifically, his conclusion that s. 12 is limited to both cruel and unusual punishments and that since imprisonment is not unusual, s. 12 does not protect against excessive terms of imprisonment is simply wrong. The phrase “cruel and unusual” punishment is not that narrow. Rather, it represents a “compendious expression of a norm” that draws on broader fundamental social and moral values (Smith, at pp. 1069 and 1072, per Lamer J., and p. 1088, per McIntyre J., dissenting, quoting Miller v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. 680, at p. 690).

[101] Imprisonment is the harshest form of punishment in Canada (Gladue, at paras. 36 and 40), and “[a]part from death, imprisonment is the most severe sentence imposed by the law” (Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 532, perWilson J., concurring). Incarceration entails not only a complete removal of an offender’s liberty, it also has a ripple effect that touches nearly every aspect of the offender’s life and physical and mental health, employability, children, and community (R. Mangat, More Than We Can Afford: The Costs of Mandatory Minimum Sentencing (2014), at pp. 40‑44).

[102] As the purpose of s. 12 is to safeguard human dignity, it protects against grossly disproportionate terms of imprisonment. ...

(2)           The Comparison Is Based on the Sentence, Without Considering Parole

[104] Factoring in the possibility of parole into the comparison inappropriately tips the scales away from what should be an apples to apples comparison between sentences and introduces unwarranted speculation. Parole is “a statutory privilege rather than a right” that turns on a discretionary decision of the parole board (Nur, at para. 98). Hence, there is “no guarantee that offenders will be granted parole when their ineligibility period expires” (Bissonnette, at para. 41). Parole also “involves a process that is independent of and distinct from the sentencing process” (para. 37). ...

(3)      What It Means for a Sentence to Be Grossly Disproportionate

[106] For a punishment to offend s. 12, it must first be different from and disproportionate to a fit and proportionate sentence. The first part of the comparative task is to articulate what, if any, differences exist between a fit sentence (identified at stage one) and the mandatory minimum. Following this, courts must gauge the effects of this disparity.

[107] Second, the punishment must be disproportionate in a manner or amount that is grossly so. This requires both the identification of any disparity between the sentences and an assessment of the mandatory minimum’s effect and severity against constitutional standards.

[108] The process of assessing the existence and extent of any disparity between a fit punishment and the mandatory minimum imposed bears a resemblance to what occurs when a sentence is appealed and challenged as being “demonstrably unfit”. In such cases, there is a comparison between what would be fit and what has been imposed. Courts are comfortable with this standard (Parranto, at paras. 30 and 38). Considerations include the gravity of the offence, the moral blameworthiness of the offender, the objectives of sentencing and any aggravating and mitigating circumstances.

[109] However, gross disproportionality is a constitutional standard. In using phrases such as “so excessive as to outrage standards of decency” (Boudreault,at para. 45; Lloyd, at para. 24, citing Morrisey, at para. 26;Wiles, at para. 4, citing Smith, at p. 1072), “abhorrent or intolerable” to society and “shock the conscience” of Canadians (Morrisey, at para. 26; Lloyd, at para. 33; Ferguson, at para. 14), this Court has repeatedly emphasized that gross disproportionality is a high bar (Lloyd, at para. 24; Steele v. Mountain Institution, 1990 CanLII 50 (SCC), [1990] 2 S.C.R. 1385, at p. 1417).

[110] Whether a sentence “outrage[s] standards of decency”, is abhorrent or intolerable, “shock[s] the conscience” or undermines human dignity is a normative question (see Bissonnette, at para. 65). Such a conclusion does not turn on a court’s opinion of whether a majority of Canadians support the penalty. Rather, the views of Canadian society on the appropriate punishment must be assessed through the values and objectives that underlie our sentencing and Charter jurisprudence.

[112] Proportionality is based in fairness and justice for the offender and does not permit unjust punishment for the “sake of the common good” (Priest, at p. 547; see Ipeelee, at para. 37). While society can be understood to be deeply concerned with the criminal behaviour which gave rise to the conviction, people are also committed to fair and just punishments which are not cruel, unusual or grossly disproportionate to the sanction which was deserved.

[113] In addition, the elevated standard of gross disproportionality is intended to reflect a measure of deference to Parliament in crafting sentencing provisions. The word “grossly” signals Parliament is not required to impose perfectly proportionate sentences (Goltz, at p. 501; R. v. Lyons,1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at pp. 344-45), which would undermine the ability of Parliament to establish norms of punishment, including mandatory minimum sentences (Lloyd, at para. 45). This is because, in respect of mandatory minimums, there is likely to be some disproportion between the individually fit sentence and the uniform mandatory minimum.

[114] In this regard, a sentence may be demonstrably unfit in the sense that an appellate court would intervene, but nevertheless not meet the constitutional threshold of being grossly disproportionate.

(5)           Whether a Mandatory Minimum Sentence Is Grossly Disproportionate

[119] The way courts have historically applied the grossly disproportionate standard to mandatory minimum sentences clarifies which factors or features inform the analysis. This Court has upheld the constitutionality of mandatory minimum sentences in 5 cases: (1) life imprisonment without eligibility for parole for 25 years for first degree murder in Luxton; (2) a mandatory sentence of 7 days of imprisonment and a $300 fine for a first conviction of driving while prohibited in Goltz; (3) a 4-year mandatory minimum sentence for criminal negligence causing death using a firearm inMorrisey; (4) the mandatory minimum sentence for second degree murder of life without possibility for parole for 10 years inLatimer; and (5) a 4‑year mandatory minimum sentence for manslaughter with a firearm in Ferguson.

[120] This Court has also struck down mandatory minimum sentences on three occasions — including in two of its most recent cases. In Smith,this Court invalidated a seven‑year mandatory minimum for importation of drugs pursuant to s. 5(2) of the Narcotic Control Act, R.S.C. 1970, c. N-l. In Nur, the three- and five‑year mandatory minimum terms of imprisonment for the possession of a prohibited or restricted firearm when the firearm is loaded or kept with readily accessible ammunition were declared of no force or effect. In Lloyd, the Court invalidated the one-year mandatory minimum sentence for trafficking or possession for the purpose of trafficking of a controlled substance provided by s. 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[121] ... Certain factors may highlight important considerations and remain salient.

[122] However, there is merit to regrouping them to simplify the analysis and more directly focus on the three crucial components that must be assessed when considering the validity or vulnerability of mandatory minimum sentences: (1) the scope and reach of the offence; (2) the effects of the penalty on the offender; and (3) the penalty, including the balance struck by its objectives.

[124] The scope and reach of the offence, the effects of the penalty on the offender, and the penalty are three main components that will have a bearing on the gross disproportionality analysis. In some cases, one alone could lead to a conclusion of gross disproportion. Other times it will be the combination of or interplay between these components which will contribute to a finding of gross disproportion or constitutional compliance. For example, a broad licensing offence with a small penalty may not undermine human dignity as much as a true criminal offence that attaches a significant penalty to less blameworthy conduct.

(a)           The Scope and Reach of the Offence

[125] The scope and reach of the offence remains a major feature in the gross disproportionality analysis and it is important to explore the full implications of the impugned offence. The case law reveals that a mandatory minimum sentence is more exposed to challenge where it captures disparate conduct of widely varying gravity and degrees of offender culpability (Lloyd,at para. 24; Smith,at p. 1078). Indeed, mandatory minimum sentences for offences “that can be committed in many ways and under many different circumstances by a wide range of people are constitutionally vulnerable” (Lloyd,at para. 3; see also paras. 24, 27 and 35-36). Thus, the wider the scope of the offence, the more likely there is a circumstance where the mandatory minimum will impose a lengthy term of imprisonment on conduct that involves lesser risk to the public and little moral fault (Nur, at para. 83). In those cases, the sentence is liable to capture conduct that clearly does not merit the mandatory minimum.

[129] Thus, a court must assess to what extent the offence’s mens rea and actus reus capture a range of conduct as well as the degree of variation in the offence’s gravity and the offender’s culpability. In characterizing the offence’s scope, a court may consider whether the offence necessarily involves harm to a person or simply the risk of harm, whether there are ways of committing the offence that pose relatively little danger, and to what degree the offence’s mens rea requires an elevated degree of culpability of the offender. In characterizing the breadth of the offence, one must also remember that s. 12 is not so exacting a standard that it requires a sentence to be perfectly tailored to every moral nuance of an offender’s circumstance (Lyons, at pp. 344-45). However, as the Court cautioned in Lloyd, at para. 35: “If Parliament hopes to sustain mandatory minimum penalties for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentences.”

(b)         The Effects of the Penalty on the Offender

[133] The severity of the mandatory minimum sentence’s effects on the people subject to it must be taken into account when assessing the degree to which the sentence is disproportionate. In measuring the overall impact of the punishment on the actual or reasonably foreseeable offender, courts must aim to identify the precise harm associated with the punishment. This calls for an inquiry into the effects that the impugned punishment may have on the actual or reasonably foreseeable offender both generally and based on their specific characteristics and qualities. This component is central to the underlying purpose of s. 12. If the effect of a mandatory punishment is to inflict mental pain and suffering on an offender such that the offender’s dignity is undermined, the penalty cannot stand (9147‑0732 Québec inc., at para. 51).

[135] Courts should consider the effect of a sentence on the particular offender. The principle of proportionality implies that where the impact of imprisonment is greater on a particular offender, a reduction in sentence may be appropriate (Suter, at para. 48; B. L. Berger, “Proportionality and the Experience of Punishment”, in D. Cole and J. Roberts, eds., Sentencing in Canada: Essays in Law, Policy, and Practice (2020), 368, at p. 368). For this reason, courts have reduced sentences to reflect the comparatively harsher experience of imprisonment for certain offenders, like offenders in law enforcement, for those suffering disabilities (R. v. Salehi, 2022 BCCA 1, at paras. 66-71 (CanLII); R. v. Nuttall, 2001 ABCA 277, 293 A.R. 364, at paras. 8-9; R. v. A.R. (1994), 1994 CanLII 4524 (MB CA), 92 Man. R. (2d) 183 (C.A.); R. v. Adamo, 2013 MBQB 225, 296 Man. R. (2d) 245, at para. 65; R. v. Wallace (1973), 1973 CanLII 1434 (ON CA), 11 C.C.C. (2d) 95 (Ont. C.A.), at p. 100), or for those whose experience of prison is harsher due to systemic racism (R. v. A.F. (1997), 1997 CanLII 14505 (ON CA), 101 O.A.C. 146, at para. 17; R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at para. 37; R. v. Marfo, 2020 ONSC 5663, at para. 52 (CanLII)). To ensure that the severity of a mandatory minimum sentence is appropriately characterized under s. 12, it is necessary to consider the impact of incarceration in light of these individualized considerations (L. Kerr and B. L. Berger, “Methods and Severity: The Two Tracks of Section 12” (2020), 94 S.C.L.R. (2d) 235, at pp. 238 and 244‑45).

[136] The effects of a sentence are not measured in numbers alone. They are “often a composite of many factors” and include the sentence’s “nature and the conditions under which it is applied” (Smith,at p. 1073). Thus, as Lamer J. observed, a sentence of “twenty years for a first offence against property would be grossly disproportionate, but so would three months of imprisonment if the prison authorities decide it should be served in solitary confinement” (p. 1073). ...

[137] In addition, this Court has repeatedly referred to longstanding doubts about whether mandatory minimum sentences, or incarceration writ large, are effective tools of deterrence (Nur, at paras. 113-14; Bissonnette, at para. 47; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 107; see also Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (1987), at pp. 136-37). Though the certainty of criminal punishment may produce certain deterrent effects, empirical evidence indicates that mandatory minimum sentences do not deter crime any more than a less harsh, proportionate sentence would (Nur, at para. 114).

(c)           The Penalty and its Objectives

[139] Denunciation and deterrence, both general and specific, are valid sentencing principles (Bissonnette, at paras. 46-47 and 49-50). ... General deterrence cannot, however, justify a mandatory minimum alone: no person can be made to suffer a sentence that is grossly disproportionate to what they deserve in order to deter others (Nur, at para. 45; Bissonnette, at para. 51). As Lamer J. wrote in Smith, it may be unnecessary to punish the “small” offender in order to deter the “serious offender” (p. 1080).

[140] Deference to Parliament’s decision to impose denunciatory sentences cannot be unlimited, as this purpose could support sentences of unlimited length (Bissonnette, at para. 46, citing Ruby, at §1.22). In enacting mandatory minimums, Parliament can prioritize some sentencing objectives over others, but within certain limits (Lloyd, at para. 45; Morrisey, at paras. 45-46). No single sentencing objective should be applied to the exclusion of all others (Nasogaluak, at para. 43). ...

[141] While rehabilitation has no standalone constitutional status, the strong connection between the objective of rehabilitation and human dignity was explained in Bissonnette (para. 83; Safarzadeh‑Markhali, at para. 71). ... Justice Gonthier’s statement at para. 45 in Morrisey, that s. 12 is not violated due to the “presence or absence of any one sentencing principle”, needs to be read in light of this Court’s conclusion that “[t]o ensure respect for human dignity, Parliament must leave a door open for rehabilitation, even in cases where this objective is of minimal importance” (Bissonnette, at para. 85).

[143] ... The analysis, in all cases, must be contextual and there is no hard number above or below which a sentence becomes grossly disproportionate.

[144] A mandatory minimum sentence, however, will be constitutionally suspect and require careful scrutiny when it provides no discretion to impose a sentence other than imprisonment in circumstances where there should not be imprisonment, given the gravity of the offence and the offender’s culpability. That said, a minimum sentence can be grossly disproportionate where a fit and proportionate sentence would include a lengthy term of imprisonment. A mandatory minimum that adds to an offender’s prison sentence may have a significant effect, given the profound consequences of incarceration on an offender’s life and liberty. A mandatory minimum sentence that has such an effect cannot be categorically excluded from scrutiny under the s. 12 analysis, as O’Ferrall and Wakeling JJ.A. suggest. ...

[145] Courts should evaluate the punishment in light of the principles of parity and proportionality. As an expression of proportionality, parity assists courts in fixing a proportionate sentence (R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 32‑33). ...

[146] ... When the sentence is dramatically higher than what the range of sentences would otherwise be without the mandatory minimum, the provision risks imposing a large penalty on a range of conduct that may not merit it. ...

(6)           Conclusion

[147] The case law offers helpful guidance on factors that have informed the gross disproportionality assessment. However, courts need not adhere to a rigid test or fixed set of factors to determine whether a state‑sanctioned punishment constitutes a grossly disproportionate one. Instead, judges should focus on three essential components when evaluating the constitutionality of mandatory minimum sentences: the scope and reach of the offence, the effects of the penalty on the offender, and the penalty.

[148] An inquiry into the sentence will often focus on whether the penalty at issue is excessive in relation to Parliament’s legitimate sentencing objectives. This will often require an analysis of the primary sentencing principles animating the mandatory penalty to ensure no individual sentencing objectives are being applied to the exclusion of all others. Judges should remain aware of potentially adequate alternatives to the impugned punishment. ...

E.            Section 244.2(3)(b) Is Grossly Disproportionate

[149] Mr. Hills fired several rounds from a hunting rifle into a residential home, knowing that or being reckless as to whether it was occupied. Mr. Hills concedes the four‑year mandatory minimum sentence under s. 244.2(3)(b) is not grossly disproportionate in his circumstances.

[150] Instead, he says the minimum would be grossly disproportionate in a hypothetical scenario where a young person intentionally discharges an air‑powered pistol or rifle at a residence that is incapable of perforating the residence’s walls (see Court of Queen’s Bench decision, at para. 14). As I explain below, the scenario raised by Mr. Hills is reasonably foreseeable. Moreover, I agree with the sentencing judge that four years of imprisonment would be grossly disproportionate in this scenario. In my view, Antonio J.A. erred in overstating the gravity of the offence and the culpability of the offender involved in this realistic scenario.

(1)           Mr. Hills Raises a Reasonably Foreseeable Scenario

[151] The Crown rightly conceded and the sentencing judge properly accepted that Mr. Hills advanced a reasonably foreseeable scenario. To begin, the scenario proposed by Mr. Hills falls within the scope of the offence and does not stretch or strain its constituent elements. ...

[152] Specifically, the expert showed that eight air-powered rifles or pistols discharged a projectile with sufficient velocity to satisfy the “pig’s eye test” but most of them were incapable of penetrating a residential wall. Those eight devices were (1) an airsoft pistol, (2) a Daisy Red Ryder model BB gun, (3) a paintball marker, (4) a youth sized pellet rifle, (5) an adult sized .177 calibre pellet rifle, (6) a .22 calibre pellet pistol, (7) a .22 calibre pellet rifle, and (8) a Ruger 10/22 semi-automatic rifle. The expert concluded that there are “numerous air‑powered rifles and pistols commonly available in Canada which meet the Criminal Code definition of a firearm, but are not capable of perforating a typical residential framed wall assembly” (A.R., at p. 393; see also Court of Queen’s Bench decision, at para. 16).

[154] It is also reasonably foreseeable to imagine a young person firing a BB gun or a paintball gun at a house. As the sentencing judge wrote, it is “easy to conceive of situations where a young person might do just as posed in the hypothetical case” (para. 17) ...

(2)           A Fit and Proportionate Sentence in a Foreseeable Scenario Would Not Involve Imprisonment

[155] I turn to the first stage of the s. 12 inquiry in Nur and the question of a fit sentence for the reasonably foreseeable offender in such a situation. ...

[156] However, there is no need to set out when a reviewing court may come to its own conclusion about a fit sentence for reasonably foreseeable offenders, since I agree with the sentencing judge that a fit sentence for this hypothetical youthful offender would involve probation and that “certainly no such offender would receive a four-year penitentiary term or a sentence approaching anywhere near that” (para. 19). ... The gravity of the offence and the culpability of the offender are low in this scenario, focusing on the offence’s consequences and the offender’s mens rea. Regarding the offence’s gravity, the consequences for public safety are relatively low in this scenario. The actus reus for this offence does not require any person to be present at the “place” where the firearm is discharged. Even if another person were present, the expert evidence establishes the minimal danger posed by the offender’s actions, given the firearm’s power is substantially reduced. In my view, Antonio J.A. erred in overstating the risks to the public in this scenario as a result.

[159] Here, the expert evidence showed an air-powered device could be far less dangerous, with some incapable of causing damage beyond cracking the vinyl siding of a house. Moreover, some of the devices that the expert tested were, quite literally, designed to shoot projectiles at other people for sport. When these considerations are combined with the fact that no one needs to be near where the projectile is shot, I see no issue with the sentencing judge’s conclusion that the risk to life and safety is low in Mr. Hills’ hypothetical (para. 16). I fail to see any substantial harm, whether actual or potential, from an offender firing a paintball gun at a house when nobody is around, even though this conduct falls within the impugned section.

[160]  ... Recklessness as conceived in s. 244.2(1)(a) does not require an offender to explicitly turn their mind to the fact that they are placing others at risk. I agree with the sentencing judge that the scenario discloses immature behaviour and low moral blameworthiness (paras. 17 and 19).

(3)           The Mandatory Minimum Is Grossly Disproportionate

[163] I turn now to stage two of the Nur analysis and consider whether the mandatory minimum at issue requires the court to impose a sentence that is grossly disproportionate to the fit sentence. Based on this reasonable hypothetical, I conclude that the four‑year mandatory minimum term of imprisonment imposed by s. 244.2(3)(b) is grossly disproportionate. It would “shock the conscience” of Canadians to learn that an offender can receive four years of imprisonment for an activity that poses more or less the same risk to the public as throwing a stone through the window of a residential home.

[164] ... While I agree that firing a hunting rifle at a house is very severe and blameworthy conduct (as in Mr. Hills’ case), the same cannot be said for the hypothetical scenario presented here. In the result, s. 244.2(1)(a) is at greater risk of being constitutionally infirm because it captures a broad range of disparate conduct that includes offences of varying gravity and degrees of offender culpability. The scope of the offence is wide.

[165] The second component is the effects of the punishment on the actual or reasonably foreseeable offender. A four-year term of imprisonment would have significant deleterious effects on youthful offenders, who are viewed by our criminal law as having high rehabilitative prospects. It follows that sentences for youthful offenders are often largely directed at rehabilitation. To prioritize rehabilitation, youthful offenders should benefit from the shortest possible sentence that is proportionate to the gravity of the offence (see R. v. Brown,2015 ONCA 361, 126 O.R. (3d) 797,at para. 7; R. v. Laine,2015 ONCA 519, 338 O.A.C. 264, at para. 85). This is because incarceration is often not a setting where the reformative needs of young people are met (Ruby, at §5.191). Youthful offenders in federal penitentiaries are often bullied, recruited into adult gangs for protection and are vulnerable to placements in segregation (Office of the Correctional Investigator and Office of the Provincial Advocate for Children and Youth, Missed Opportunities: The Experience of Young Adults Incarcerated in Federal Penitentiaries (2017)). For the youthful offender at bar, the difference between a reformatory sentence served in community and a four‑year period of incarceration would be profoundly detrimental.

[166] ... Not only does the minimum mandate the punishment of “last resort”, it imposes four years of incarceration. This weighs strongly against the minimum’s constitutionality under s. 12.

[167] The third component is the penalty. A four-year custodial sentence is so excessive as to be significantly out of sync with sentencing norms and goes far beyond what is necessary for Parliament to achieve its sentencing goals for this offence. A four‑year minimum term of imprisonment for a youthful offender shooting a BB gun at a residence is draconian. ... Here, the offence’s gravity is low and it is unreasonable to suggest an offender’s conduct in this scenario greatly offends any basic moral values. General deterrence cannot support the minimum in this case either, since “a person cannot be made to suffer a grossly disproportionate punishment simply to send a message to discourage others from offending” (Nur, at para. 45). ... Nor does the minimum show any respect for the principles of parity and proportionality. A four-year sentence for what is, at most, a minor form of mischief is totally out of sync with sentencing norms. Unlike the mandatory minimum sentences in Hilbach (see paras. 72-73 and 95), there is no justification for emphasizing denunciation and deterrence to a great extent in this scenario.

[168] A comparison between punishments imposed for other crimes of similar gravity and the mandatory minimum set in this case reveals great disproportion. Consider, for example, R. v. Pretty, 2005 BCCA 52, 208 B.C.A.C. 79, R. v. Schnare, [1988] N.S.J. No. 118 (QL), 1988 CarswellNS 568 (WL) (C.A.), and R. v. Cheung, Gee and Gee (1977), 5 A.R. 356 (S.C. (Trial Div.)), where in each case firing a pellet gun at a property was charged as a mischief offence and the offender received a sentence far below the mandatory minimum sentence mandated under s. 244.2(3)(b) (suspended sentence in Pretty; two months of incarceration, two years of probation and restitution in Schnare; and a suspended sentence and restitution in Cheung). The appellant in Pretty was a youthful offender who held animosity towards his neighbour and fired a BB gun at his neighbour’s home. The sentencing judge suspended the passing of sentence and placed the offender on probation for 12 months.

[169] For the above reasons, I find that s. 244.2(3)(b) is grossly disproportionate. It applies to an offence that captures a wide spectrum of conduct, ranging from acts that present little danger to the public to those that pose a grave risk. Its effect at the low end of the spectrum is as severe as the minimums in Nur and Lloyd. Denunciation and deterrence alone cannot support such a result. The punishment shows a complete disregard for sentencing norms and the mandatory prison term would have significant deleterious effects on a youthful offender. In light of these considerations, I agree with Mr. Hills that it would outrage Canadians to learn that an offender can receive four years of imprisonment for firing a paintball gun at a home.

[170] As the Crown does not advance any argument or evidence to demonstrate that this is one of the rare cases in which cruel and unusual punishment under s. 12 may be justified under s. 1 of the Charter, I need not address this issue.

VI.         Conclusion

[175] For these reasons, I would allow the appeal. The judgment of the Alberta Court of Appeal is set aside. The mandatory minimum set out in s. 244.2(3)(b) of the Criminal Code is grossly disproportionate. It infringes s. 12 of the Charter and is not saved by s. 1. It is immediately declared of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982, and the declaration applies retroactively. The three‑and‑a‑half‑year sentence imposed on Mr. Hills by the sentencing judge is reinstated.

R v MV, 2023 ONCA 33

[January 19, 2023] Sentencing: 1.5 to 1 Credit for Custody prior to Successful Appeal [J.C. MacPherson, G. Pardu, and S. Coroza JJ.A.]

AUTHOR’S NOTE: R v Summers pre-trial custody credit of 1.5 to 1 has generally not been applied to time served in a penitentiary. However, this case recognises that parole authorities do not count such time towards parole eligibility. Consequently, here after a 2nd lost trial and sentencing, the Court of Appeal found that this pre-appeal custody time in a penitentiary should have been credited by the trial judge at 1.5 to 1.


[1] The appellant was originally convicted of sexual assault on December 7, 2018. On April 30, 2019, he was sentenced to seven years imprisonment. He served his sentence until December 11, 2020, when this court allowed his appeal and ordered a new trial because the trial judge did not provide reasons for convicting him.

[2] On November 26, 2021, the appellant was convicted of sexual assault upon his re-trial. On March 16, 2022, the appellant was sentenced to seven years imprisonment, less five years credit for pre-sentence custody leaving a net sentence of two years. Pursuant to R. v. Summers, 2014 SCC 26, [2014] 1 SCR 575, the trial judge granted credit at a rate of 1:1 for the time the appellant spent in the federal penitentiary serving his sentence imposed by the first trial judge, and credit at the rate of 1.5:1 for the remaining pre-sentence custody. The trial judge rejected the appellant’s request that enhanced credit should be given for the time served in the federal penitentiary awaiting the hearing of his appeal because at that time, the appellant was not awaiting trial and had access to programs not available in provincial remand.

[4] The second issue on appeal is whether the trial judge should have granted enhanced credit for the time the appellant spent in federal custody serving his first sentence. As noted above, the trial judge granted the appellant 1:1 credit for this time.

[5] It is the appellant’s submission that enhanced credit was warranted for this time at a rate of 1.5:1. According to the appellant, the time spent in federal custody became akin to pre-trial custody once his appeal was successful, and the trial judge should have recognized that this time would not count towards the appellant’s parole and early release for the sentence he imposed. According to the appellant, the denial of enhanced credit in this case is unfair.

[8] In our view, it was an error in principle for the trial judge to conclude that enhanced credit for serving that first sentence was not warranted simply because the appellant had access to federal programs. In the circumstances of this case, the trial judge should have also considered the fact that the appellant’s time served pending appeal would not count for the purposes of parole eligibility and statutory release and whether that loss worked unfairly: see e.g., R. v. Gunning, 2008 BCCA 22, 250 B.C.A.C. 243, at para. 9. In light of this error, we consider the issue of sentence afresh.

[9] The appellant was convicted by the first trial judge without providing reasons and successfully appealed on that basis. Had the appellant continued to serve his initial sentence, he would have been eligible for parole in March 2021 and eligible for statutory release in January 2023. Under the current sentence, he was eligible for parole in November 2022 and is eligible for statutory release in July 2023. The appellant will have spent more time in custody for the offence because of his successful appeal. We are of the view that to mitigate against that unfairness, the appellant should be credited at a rate of 1.5:1 for the time he served awaiting appeal.

[10] For these reasons, the appeal is allowed. The parties agree that these errors would warrant additional credit of 368 days, and accordingly, the appellant is granted an additional credit of 368 days over the trial judge’s determination of five years credit. The net sentence imposed by the trial judge of two years is accordingly reduced to a net sentence of one year. All other aspects of the sentence including the ancillary orders stand.

R v Tran, 2023 ONCA 11

[January 10, 2023] Trial Judge cannot consider Collusion in a Judgment where No Argument was made About it at Trail [Reasons by Copeland J.A. with K. Feldman and B. Zarnett JJ.A. concurring]

AUTHOR’S NOTE: Trial fairness demands that the parties have an opportunity to argue or present evidence on issues that are crucial to a trial judge's decision. This is not always a principle that wins the day due to other considerations. However, here where the judge brought up for the first time in reasons for judgment the likelihood that the accused and primary Crown witness colluded, this worked tremendous unfairness to the accused. The result was a new trial. 

Copeland J.A.:

[1] The appellant was convicted of one count of fraud over $5,000 and one count of possession of proceeds of crime over $5,000, contrary to ss. 380(1) and 354(1) of the Criminal Code, R.S.C. 1985, c. C-46. He was sentenced to a conditional sentence of imprisonment of two years less a day. He now appeals from conviction, and seeks leave to appeal the sentence and, if leave is granted, appeals from the sentence imposed.

[2] I would allow the appeal, set aside the convictions, and order a new trial. The appellant raises a number of grounds of appeal, but I only find it necessary to address one. The central credibility finding by the trial judge against the appellant was tainted by two errors that affected the fairness of the verdict. First, the trial judge made the central credibility finding in a procedurally unfair manner. She based it on an issue that the Crown did not raise in submissions and on which the Crown did not cross-examine either defence witness. Further, the trial judge misapprehended material evidence in making the same credibility finding. These errors resulted in a miscarriage of justice that requires a new trial. In light of my conclusion on the conviction appeal, I need not address the sentence appeal.


[3] The appellant was jointly charged with Hai Ha with fraud and possession of proceeds of crime. The basic allegations were as follows. Mr. Ha was a customer service representative for a fibreglass insulation company. Using false return documents he created, Mr. Ha credited approximately $518,000 from the company to various credit cards, including a number of cards in the appellant’s name. In total, approximately $291,000 was credited to credit cards in the appellant’s name between 2011 and 2014.

[4]  Mr. Ha pled guilty in advance of the appellant’s trial.

[5]  The Crown led no viva voce evidence at trial. Rather, the underlying credit card transactions were tendered at trial through an agreed statement of facts, supported by documentation for each transaction. The agreed statement of facts was clear that the appellant did not contest that the credit card transactions had happened; however, it was also clear that he did not admit knowledge of the fraudulent acts by Mr. Ha against the company for which Mr. Ha worked.

[6] The appellant testified in his defence. He denied knowing that the credit card transactions conducted by Mr. Ha were fraudulent.

[7] The appellant testified that he met Mr. Ha in 2005 through mutual friends. They “hit it off”, and bonded over their shared background as Chinese refugees born in Vietnam. They became good friends.

[8] ...The appellant testified that he loaned Mr. Ha $240,000. The loan was made in cash, over a few months starting in February 2011, in increments of $60,000. The amount to be paid back would be $300,000, amounting to approximately 26% interest.

[9] The appellant testified that Mr. Ha told him that because his money was tied up in his company, he would have to repay the loan through credit card transactions from his company. The appellant testified that he believed Mr. Ha owned the company that gave him the credits. The appellant testified that he kept a monthly rolling tab of the money being repaid.

[13] Mr. Ha went to the appellant in late 2010 seeking a loan. He told the appellant that he needed the money to assist his father, who had suffered a stroke, with significant physical therapy and treatment expenses. The appellant gave Mr. Ha the loaned money, $240,000, in a couple of instalments in January or February 2011. The loan was to be repaid with 26% interest. Mr. Ha testified that ultimately he only used $60,000 to $75,000 of the loan for his father’s treatment expenses. Unbeknownst to the appellant, Mr. Ha used the rest of the loan for drugs, gambling, and at strip clubs. He did not disclose his substance abuse or gambling issues to the appellant.

[14] Mr. Ha testified that he purposely targeted the appellant for his fraudulent scheme, and that he took advantage of their shared cultural background and friendship to mislead the appellant and persuade him to lend the money....

[15] Mr. Ha testified that his evidence at trial was the first time he had ever told the appellant that the funds he was using to repay the loan were fraudulently obtained. He testified that he felt too ashamed to tell the appellant the truth until he came to testify. He also testified that his release conditions ordered him not to communicate with any alleged parties to the fraud, including the appellant.

[16] Crown counsel at trial (not Mr. Friesen) challenged the evidence of both the appellant and Mr. Ha in cross-examination. In particular, Crown counsel suggested to both the appellant and Mr. Ha that there was no loan, and that the appellant was aware of the fraudulent scheme. Both men denied that suggestion. Crown counsel also challenged the appellant’s evidence that he had a large amount of cash available to make a loan in cash....

[17] The only issue at trial was whether the Crown had proven beyond a reasonable doubt that the appellant had the mens rea required for fraud and possession of the proceeds of crime.


[19] The Crown had a strong circumstantial case against the appellant based on the documentary evidence, and the unusual nature of the credit card transactions. But it was not an overwhelming case. The only contested issue at trial was whether the appellant had knowledge of the fraudulent nature of the transactions.

[21] Unfortunately, the trial judge made a central credibility finding in a procedurally unfair manner, and materially misapprehended evidence in making that finding. These errors resulted in a miscarriage of justice and require a new trial.

[22] The trial judge began her analysis of the credibility of the evidence of the appellant and Mr. Ha and whether the Crown had proven the mens rea for fraud as follows:

I find it impossible to believe that [the appellant] only found out about the fraud leading to his arrest when Mr. Ha was on the witness stand at [the appellant’s] trial. Although Mr. Ha said he was too embarrassed to tell [the appellant] sooner, I find it rather far-fetched that he would say nothing to [the appellant] for five years and leave [the appellant] suspended in ignorance on the basis of his charges. Further, I do not believe that [the appellant] would not make it his business to inquire into the details of what he contends destroyed his life and long- established career. [Emphasis added.]

[24] There are two interrelated problems with the finding quoted above. First, it was made in a procedurally unfair manner because it was based on issues that Crown counsel at trial did not raise with the defence witnesses in cross- examination or in submissions. Second, it is based on a material misapprehension of evidence. I address each issue in turn.

[25] The finding by the trial judge that it was inherently unbelievable (“far- fetched”) that the appellant and Mr. Ha had not communicated after the appellant was charged was made in a procedurally unfair manner. Although Crown counsel at trial challenged the credibility of the evidence of both the appellant and Mr. Ha, at no point did Crown counsel suggest to either of them that they had communicated after the appellant’s arrest or that they had colluded or concocted their evidence. Nor did Crown counsel in closing submissions make any argument that the trial judge should find that the appellant and Mr. Ha must have communicated after the charges and concocted their evidence. Thus, a central reason the trial judge gave for rejecting the evidence of both the appellant and Mr. Ha – that she found it inherently unbelievable that they had not communicated about the substance of the charges after the appellant was charged – was never raised either in cross-examination or in submissions by Crown counsel at trial. As a result, the appellant had no opportunity to address the trial judge’s concerns about concoction either in his evidence or in submissions at trial. Further, because of this procedural unfairness, and the fact that the issue only arose in the reasons for judgment, trial counsel for the appellant had no opportunity to object.

[26] The procedural unfairness of the trial judge’s approach is evident given that the appellant and Mr. Ha were prohibited from communicating prior to the trial by their release terms. Mr. Ha testified in examination-in-chief that his release terms prohibited him from speaking to the appellant....

...However, because the issue of whether the appellant and Mr. Ha concocted their evidence and whether it was inherently unbelievable that they did not communicate after the appellant was charged was raised by the trial judge for the first time in her reasons for judgment, the appellant was denied the opportunity...

...The appellant ought to have been given an opportunity to respond to these concerns, and would have, had these concerns been raised in his cross-examination.

[27] The appellant testified about the date of his arrest, his surprise at being charged, and his release from the police station. The appellant also testified that he did not speak to Mr. Ha between the time he was charged and the trial. The appellant was not specifically asked, either in examination-in-chief or in cross- examination, about the terms of his release. Mr. Lacy asserted on appeal that the appellant was bound by a term of his release on an undertaking after his arrest not to communicate with Mr. Ha. Crown counsel on appeal did not contest this fact....

[31] It was, of course, open to the trial judge to reject the defence evidence and not be left in a reasonable doubt by it. But she would have had to do so in a procedurally fair manner, and based on an assessment of the trial record that was free from material misapprehension of evidence on issues essential to her reasoning process leading to conviction: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 541; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.

[34] ...She then revisited her disbelief that they had not communicated midway through her credibility analysis, stating:

Then there is what [the appellant] said was a “coincidence”, that Mr. Ha asked for a cash loan of the approximate amount that Mr. Tran just happened to have stored in the safes. This, together with the other credibility problems in the evidence, just seems too convenient to be accepted as true. This only adds to what I regard as a fantastic story Mr. Ha and [the appellant] have concocted to prevent [the appellant] from being convicted of fraud. [Emphasis added.]

[35] The trial judge’s repeated reference to her belief that the appellant and the respondent had communicated – and indeed, “concocted” their evidence – makes clear that her conclusion that it was inherently unbelievable that they had not communicated was material to her assessment of the credibility of the defence evidence, and was an essential part of her reasoning process.

[39] The appellant was entitled to a fair assessment of his evidence in the context of the evidence as a whole, untainted by the procedural unfairness of the trial judge rejecting the credibility of defence evidence on a basis not raised by Crown counsel either in cross-examination of defence witnesses or in submissions, or by the material misapprehension of evidence on issues essential to the trial judge’s reasoning: R. v. S.R., 2022 ONCA 192, 79 C.R. (7th) 162, at para. 15; R. v. Alboukhari, 2013 ONCA 581, 310 O.A.C. 305, at paras. 36-38; R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230, at paras. 37-38. The procedural unfairness and misapprehension of evidence in this case related to a central aspect of the trial judge’s assessment of the credibility of the defence evidence. I am not satisfied that this is an appropriate case to apply the proviso.


[40] I would allow the appeal, set aside the convictions, and order a new trial.