Summaries Sunday: Supreme Advocacy

by Administrator

Oral Judgments

Criminal Law: Sexual Offences; Hearsay
R. v. S.S., 2022 ONCA 305; 2023 SCC 1 (40147)

There is a publication ban in this case. The Chief Justice: “A majority of this Court would allow the appeal, substantially for the reasons of the dissenting judge, MacPherson J.A. Justice Rowe would dismiss the appeal, substantially for the reasons of the majority of the Court of Appeal. Therefore, the appeal is allowed and the conviction is restored.”

Appeals

Criminal Law: Mandatory Minimums
R. v. Hills, 2020 ABCA 263; 2023 SCC 2 (39338)

Whether a mandatory minimum is grossly disproportionate will depend upon the scope and reach of the offence, the effects of the punishment on the offender, and the penalty and its objectives. In respect of Mr. Hills, 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. The Crown did not argue that s. 244.2(3)(b) could be saved under s. 1 of the Charter.

Criminal Law: Mandatory Minimums
R. v. Hilbach, 2020 ABCA 332; 2023 SCC 3 (39438)

This appeal questions whether the mandatory minimum sentences for robbery imposed in s. 344(1)(a)(i) and (a.1) of the Criminal Code, constitute cruel and unusual punishment under s. 12. Specifically, Mr. Hilbach challenges the minimum of five years’ imprisonment prescribed under s. 344(1)(a)(i) where a robbery is committed with a restricted or prohibited firearm, arguing that it is a grossly disproportionate sentence in regards to his circumstances. Mr. Zwozdesky relies on a set of hypothetical scenarios to challenge the minimum of four years’ imprisonment previously imposed by s. 344(1)(a.1) where an ordinary firearm is used. The mandatory minimum sentence prescribed in s. 344(1)(a.1) was repealed after this appeal was heard. Despite this legislative change, these reasons examine the impugned mandatory minimum as previously enacted. Some offences that may carry with them significant mandatory minimum sentences, such as four to five years of imprisonment, are framed in such a way that they cannot be committed in innocuous circumstances by offenders who are all but morally blameless; on the contrary, they are almost always serious and committed by offenders who bear a high degree of moral blameworthiness; offences that come within this class are narrowly defined and limited in scope, subject and mens rea; they regularly involve acts of violence, threats of violence, or conduct that is inherently dangerous, in circumstances that give rise to a real risk of death or serious bodily harm; and additionally require a high level of moral blameworthiness on the part of offenders, be they principals or parties, to sustain a conviction. For this class of offences, the mandatory minimum sentence could, applying normal sentencing principles, be considered to be too high and demonstrably unfit in some cases. For these offences there is, however, little risk of imposing a sentence that would meet the test for gross disproportionality so long as the mandatory minimum sentence is not grossly disproportionate to sentences that would be appropriate, applying normal sentencing principles, for conduct that could reasonably be expected to fall within its ambit. Not all offences will fall neatly into one or the other of these two classes of offences, and they are not intended to establish any preconditions; rather, these categories may serve as departure points when deciding whether a particular mandatory minimum sentence is or is not constitutional. This appeal, and its companion appeal, provide classic examples of these two classes of offences. In Hills, the impugned provision imposed a mandatory minimum of four years’ imprisonment for an offence that can be committed in a wide range of circumstances by a wide range of offenders. By contrast, the present offence is narrowly defined and limited in scope, subject and mens rea. The impugned mandatory minimum sentences apply to conduct that poses a significant risk to the safety of victims and the public; the risk of violence and psychological trauma from any robbery involving a firearm is acute. Neither s. 344(1)(a)(i) nor the former s. 344(1)(a.1) are grossly disproportionate. In enacting the mandatory minimum sentences here, Parliament was free to prioritize deterrence and denunciation.

Leaves to Appeal Granted

Aboriginal Law: Treaty Rights
Jim Shot Both Sides, et al. v. Canada, 2022 FCA 20 (40153)

Time limitations in treaty rights context.

Charter/Military Law: Independent and Impartial Tribunals
Edwards v. R.; Crépeau v. R.; Fontaine v. R.; Iredale v. R., 2021 CACM 2 (39820)