The Court of Appeal upheld a finding that the mandatory five-year prison sentence for robbery while using a prohibited firearm breaches s 12 of the Charter as cruel and unusual punishment. It fails to allow courts to account for mitigating factors and elevates principles of deterrence and denunciation to an extent that objectives of rehabilitation, the imposition of a just sentence, and special considerations for Indigenous offenders are lost. However, a sentence was varied based on errors, including an overemphasis of Gladue/Ipeelee factors.
Ocean Hilbach was convicted for committing a robbery while using a prohibited firearm, contrary to s 344(1)(a)(i) of the Criminal Code. Curtis Zwozdesky was convicted for using a firearm, as a party to the offence, in the course of two robberies contrary to s 344(1)(a.1) of the Criminal Code.
The mandatory minimum sentences were deemed grossly disproportionate to the fit and proper sentence to the appropriate sentence in other reasonably foreseeable applications of the law in both cases. As such, the mandatory minimums in those sections contravened s 12 of the Charter and were not justified under s 1 of the Charter, and therefore pursuant to s 52(1) of the Constitution Act, 1982, were declared unconstitutional and of no force and effect.
The Crown appealed both sentences, maintaining that the mandatory minimums set out in these Criminal Code sections are consistent with the provisions of the Charter, and the sentences imposed by the sentencing judges are unfit. The standard of review on a sentence appeal is highly deferential. An appellate court cannot modify a sentence “simply because it feels that a different order ought to have been made” (R v Lacasse, 2015 SCC 64).
The constitutional validity of legislation is a question of law subject to the standard of review of correctness (Housen v Nikolaisen, 2002 SCC 33; R v Malmo-Levine, 2003 SCC 74). Section 12 of the Charter provides that everyone has the right not to be subjected to cruel and unusual treatment or punishment. Each of the sentencing judges in these appeals correctly identified the stringent test as to whether a mandatory minimum sentence constitutes such cruel and unusual punishment (R v Smith, 1073 (SCR)). To be considered grossly disproportionate, the sentence must be “so excessive as to outrage standards of decency” such that Canadians “would find the punishment abhorrent or intolerable” (R v Ferguson, 2008 SCC 6).
The appeal with respect to Mr. Zwozdesky is dismissed. The Court determines that the sentences imposed on Mr. Zwozdesky were fit and proper. The appeal with respect to Mr. Hilbach, however, is allowed in part. The sentencing judge for Mr. Hilbach found that a fit global sentence for both charges would be two years less a day, acknowledging the relevant Gladue factors, his degree of responsibility, the need for denunciation and deterrence for the crimes committed while on probation and prohibited from possessing firearms, and recognizing that this was his first custodial sentence.
There is no doubt that the commission of robbery using a prohibited firearm is a serious violent offence with potentially grave consequences. There are aggravating factors of an already serious violent offence and Mr Hilbach’s moral culpability was high. However, he was young at the time, 19 years old, pleaded guilty to these offences, and expressed remorse for his crimes. He is a member of the Ermineskin Cree Nation, and there are significant Gladue factors to be considered.
The Court determined that the sentencing judge committed errors in principle by failing to put sufficient emphasis on aggravating factors and place sufficient weight on deterrence and denunciation, and overemphasizing Gladue/Ipeelee factors. The sentence of two years less a day is unreasonable and demonstrably unfit. Taking all of these factors into account, a fit and proper sentence for Mr Hilbach is three years’ imprisonment for the s 344(1)(a)(i) offence. However, given that a significant period of time has elapsed since Mr. Hilbach was sentenced and he has served his full original sentence, it is not in the interests of justice to re-incarcerate him at this time. The Court confirms the decisions of the sentencing judges that the mandatory minimum sentences in ss 344(1)(a)(i) and (a.1) of the Criminal Code are unconstitutional and of no force and effect.