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Mandatory minimum penalty for firing gun at house unconstitutional: Supreme Court

OTTAWA — The Supreme Court of Canada has ruled that a mandatory minimum sentence of four years for firing a gun at a house is unconstitutional on the basis it could amount to cruel and unusual punishment.
The flag of the Supreme Court of Canada flies on the east flag pole on Monday, Nov. 28, 2022. The Supreme Court of Canada plans to rule today on the constitutionality of mandatory minimum sentences in cases involving armed robbery and recklessly firing a gun. THE CANADIAN PRESS/Sean Kilpatrick

OTTAWA — The Supreme Court of Canada has ruled that a mandatory minimum sentence of four years for firing a gun at a house is unconstitutional on the basis it could amount to cruel and unusual punishment.

In a companion judgment Friday, the top court said two other minimum sentences, both involving armed robbery offences, do not represent excessive punishment and are therefore constitutional.

The Supreme Court also affirmed and developed the framework for weighing challenges to the constitutionality of a mandatory minimum sentence under the Charter of Rights and Freedoms provision against cruel and unusual treatment or punishment.

The first decision came in the case of Jesse Dallas Hills, who pleaded guilty to four charges stemming from a May 2014 incident in Lethbridge, Alta., in which he swung a baseball bat and shot at a car with a rifle, smashed the window of a vehicle and fired rounds into a family home. 

Hills had consumed large amounts of prescription medication and alcohol and said he did not remember the events.

He argued the minimum four-year sentence in effect at the time for recklessly discharging a firearm into a house or other building violated the constitutional prohibition on cruel and unusual punishment. 

A judge agreed and Hills was sentenced to a term of 3 1/2 years, but the Alberta Court of Appeal overturned the finding of unconstitutionality and the sentence was increased to four years. 

In allowing Hills's appeal, the Supreme Court said the mandatory minimum sentence was grossly disproportionate, given that a young person might fire a paintball gun at a house as part of a game.

"The mandatory minimum cannot be justified by deterrence and denunciation alone, and the punishment shows a complete disregard for sentencing norms," Justice Sheilah Martin wrote on behalf of a majority of the court.

"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."

In any event, the Liberal government repealed this particular mandatory minimum sentence, along with several others, after the appeal was heard.

In the companion judgment involving two other Alberta cases, the Supreme Court said mandatory minimum penalties for a pair of armed robbery offences did not amount to cruel and unusual punishment.

The first offence, robbery committed with a restricted or prohibited firearm, carries a mandatory minimum sentence of five years in prison.

The second, robbery with an ordinary firearm, carried a mandatory minimum sentence of four years at the time the appeal was heard, but this minimum sentence has since been repealed.

A majority of the Supreme Court said Parliament is entitled to enact mandatory minimum sentences that signal that a disregard for the life and safety of others in handling firearms is simply not acceptable.

There is also a need for general deterrence when a person endangers the safety of others in wielding a firearm, the court added.

The framework applicable to challenges of mandatory minimums under the Charter prohibition against cruel treatment requires a two-stage inquiry, the top court said.

First, a court must determine a fit and proportionate sentence for the offence in respect of the objectives and principles of sentencing in the Criminal Code.

The court must then ask whether the provision in question requires it to impose a sentence that is grossly disproportionate when compared to the fit and proportionate sentence, the Supreme Court said.

This exercise entails looking at the scope and reach of the offence, the effects of the penalty on the offender, and the penalty and its objectives.

Martin indicated the two-part assessment can focus on either the actual offender before the court or another individual in a "reasonably foreseeable" case — for instance, a young person firing a BB rifle or a paintball gun at a house.

"A reasonable hypothetical scenario needs to be constructed with care," she cautioned.

But Martin said the desire expressed by certain members of the Alberta Court of Appeal to excise the use of reasonably foreseeable scenarios from the court's framework is "completely contrary to both precedent and principle."

This report by The Canadian Press was first published Jan. 27, 2023.

Jim Bronskill, The Canadian Press