The phrase illegal and cruel punishments was first used by the United Kingdom Parliament in the Bill of Rights 1689 and later adopted in the Eighth Amendment to the Constitution of the United States 1791 as cruel and unusual punishments. Article 5 of the Universal Declaration of Human Rights 1948 provides that no one shall be subjected to cruel, inhuman or degrading treatment or punishment. These compendious phrases have come down to us in the Constitution of Canada 1982 as cruel and unusual treatment or punishment in s. 12 of the Charter of Rights and Freedoms. After more than three hundred years a petulant judicial clamour about the meaning of the phrase was recently settled by the Supreme Court of Canada in an opinion that is a model of judicial restraint. It was all a debate in search of a controversy.

1. Introduction

The last thing Jesse Hills remembered was laying on his bed at home in Lethbridge, Alberta, falling asleep. The next morning he woke up in a police cell. He had no idea what he did or how he got there. On May 6, 2014, he had wandered out of his home around midnight carrying a loaded rifle and a baseball bat. He was drinking heavily and taking Tramadol for a back injury. He took a pot shot at a passing car and smashed the windows in another vehicle. He then took aim at a house and fired several rounds. The occupants called the police and fled to the basement. A round went through a living room window and lodged in a drywall stud. No one was injured and no one knows why he did it.

He pled guilty to intentionally discharging a firearm into the house knowing or being reckless whether another person was present contrary to s. 244.2(1)(a) of the Criminal Code. The offence was punishable by imprisonment for a maximum of fourteen years and a minimum of four years under s. 244.2(3)(b) of the Code. An application was brought before the sentencing judge for a declaration that the mandatory minimum sentence was unconstitutional because it violated the prohibition against cruel and unusual punishment in s. 12 of the Charter. The application triggered six years of litigation that provides an opportunity for a broader discussion than my previous post to On The Wire that considered cruel and unusual punishment in the context of stacked periods of parole ineligibility. (here)

2. The Ruling on Sentence

On November 20, 2018, Justice R.A. Jerke of the Court of King’s Bench of Alberta, held that the four year mandatory minimum punishment was unconstitutional and a sentence of three and a half years imprisonment was imposed in a subsequent oral decision. (here) Justice Jerke found that, although a four year sentence would not result in a grossly disproportionate sentence for Mr. Hills, “it is reasonably foreseeable that it will result in a grossly disproportionate sentence for other offenders.” The test under s. 12 mandated that Justice Jerke consider a hypothetical case in assessing whether the mandatory minimum punishment would impose cruel and unusual punishment on other potential offenders. The hypothetical was that of a young person who “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.” The state conceded that the hypothetical was “neither remote nor far-fetched.”

The opinion of a firearm expert was admitted on the sentence hearing. The expert said there are numerous air-powered firearms available in Canada that meet the legal definition of a firearm but are not capable of perforating a typical residential wall. “There would be little to no risk to the life or safety of anyone who might be present in the residence,” Justice Jerke said in assessing the expert opinion. “[T]he main differences between Mr. Hills and the hypothetical offender is that the gravity of the offending conduct is much less serious in the hypothetical case, as is the degree of responsibility of the hypothetical offender. [C]ertainly no such offender would receive a four-year penitentiary term or a sentence approaching anywhere near that.” Applying the leading Supreme Court of Canada cases of R. v. Nur and R. v. Lloyd, Justice Jerke concluded that the minimum punishment would have a “grossly disproportionate impact on others, rendering the law unconstitutional.” (here and here)

3. The Appeal

On July 10, 2020, a three member panel of the Alberta Court of Appeal reversed. (here) Justices Jolaine Antonio, Brian O’Ferrall and Thomas Wakeling all wrote separate opinions. Justice Antonio concluded the expert opinion was inadequate to establish the low gravity of the hypothetical. The expert did not exclude the possibility that rounds fired from an air-powered firearm could travel through a window. Nor did Justice Jerke consider the consequential psychological harms. Justice Antonio reasoned that if it was not grossly disproportionate to impose a forty month sentence for possession of a loaded firearm on the nineteen year old offender in Nur, it would not be grossly disproportionate to impose four years on Mr, Hills who actually discharged a firearm. She held that the appropriate sentence was four and a half years but reduced the sentence to the minimum four years to account for time on appeal.

Justice O’Ferrall agreed with Justice Antonio in the result. He stated, however, that he would simply impose the four year minimum sentence prescribed by the Code. He then went on to invite the Supreme Court of Canada to reconsider its s. 12 jurisprudence. Dismayed by the “air of unreality” associated with “reasonable hypotheticals” he suggested the analysis should proceed based solely on the offender before the court. “But for the approved reasonable hypothetical analysis, the accused could care less about the constitutionality of the law,” he said. He was not concerned about uncertainty in the law caused by “having unconstitutional laws on the statute books.” Indeed, “that may not be a bad thing” because uncertainty “about the punishment a crime might attract adds to the deterrence,” he concluded.

Justice Wakeling joined Justice O’Ferrall in calling for the Supreme Court to reconsider its s. 12 jurisprudence and reverse the progenitor ruling in R. v. Smith where the seven year minimum sentence for importing narcotics was struck down. (here) The main thrust of his opinion is that s. 12 only protects against cruel and unusual punishment. It does not protect against usual punishments like imprisonment. He was particularly vitriolic about the use of reasonable hypotheticals as an analytical tool reasoning that, in light of the plain language of the text, an offender can only challenge the particular sentence imposed on him or her. “I suspect that most informed and reasonable Canadians would be aghast to discover that the Supreme Court has constructed a protocol that requires adjudicators to populate make-believe scenarios that must be monitored to ensure that they are not too far-fetched,” he said. He threw up his hands and declared the Canadian sentencing regime “so unsatisfactory that no part of it should be incorporated into any test designed to identify cruel and unusual punishments.” He would have sentenced Mr. Hills to 5 years and 10 months imprisonment.

4. In the Supreme Court

On January 27, 2023, the Supreme Court of Canada reversed in an 8-1 opinion that restored the ruling of Justice Jerke and reinstated the sentence of three and a half years. (here) Writing for the majority, Justice Sheila Martin relied on the “pig’s eye test” to determine whether a barrelled weapon (like Mr. Hills’ rifle) is capable of causing serious bodily injury or death and thus fulfills the definition of “firearm” in the Code. The test asks whether a projectile fired from the device can rupture a pig’s eye. The expert evidence established that some air-powered devices, like a BB gun or a paintball gun, are capable of firing projectiles with enough velocity to rupture a pig’s eye and are therefore classified as firearms. An offender could be convicted of firing a BB gun at a shed and be subject to four years imprisonment although the gravity of the offence and the degree of moral blameworthiness of the offender are low. Justice Martin concluded that Justice Antonio had overstated the risks to the public.

Justice Martin emphasized that many of the arguments accepted by Justices O’Ferrall and Wakeling were previously argued and rejected in Nur. “The jurisprudence continues to provide a principled approach to assess when the effects of a penalty are so undermining of human dignity that the penalty qualifies as cruel and unusual punishment,” she said. As the court held in Nur, foreclosing consideration of the reasonably foreseeable impacts of a challenged 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.” The excision of reasonably foreseeable scenarios from the analytical framework suggested by Justices O’Ferrall and Wakeling was “completely contrary to both precedent and principle.”

Justice Martin went on to hold that Justice Wakeling’s opinion that s. 12 is limited to punishment that is both cruel and unusual “is simply wrong.” The conclusion in Smith was controlling. The phrase “cruel and unusual” represents a “compendious expression of a norm” that draws on broader fundamental social and moral values. Justice Martin was also critical of Justice Wakeling’s application of “his own personal method of fixing sentences” whereby “fact patterns” of “degrees of risk to human life or health” and “blameworthiness of the offender” are allocated to “subsets” representing sentencing ranges. Justice Martin described the approach as “personal and idiosyncratic” which failed to take into account “the legal requirements set out in the Criminal Code and in this Court’s authoritative jurisprudence.” I will add that Justice Wakeling’s particular failure to consider the circumstances of indigenous offenders, mandated by Parliament in s. 718.2(e) of the Code and applicable to Mr. Hills, was disgraceful and unbecoming a member of the Canadian judiciary. That is not textualism.

5. Conclusion

It is important to emphasize that, in the context of using reasonable hypotheticals to assess whether a specific punishment is grossly disproportionate, it is the nature of the law that is in issue, not the claimant’s status. It is sufficient for a claimant to assert either unconstitutional effects in their own case or on third parties. As the Supreme Court held in Nur, and affirmed in Hills, “[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.”  The use of reasonable hypotheticals also promotes the effective use of judicial resources by allowing one judge to consider a specific mandatory minimum penalty from different perspectives thus reducing multiple challenges that may otherwise emerge from different jurisdictions. This analytical approach also conserves costs that would otherwise be born by a succession of claimants. Although mandatory minimum sentences have been criticized because they remove the “safety valve” of judicial discretion, they are not presumptively unconstitutional. The Hills majority underscored the observation in Smith that lawmakers may provide for a compulsory term of imprisonment that survives s. 12 scrutiny as in R. v. Hilbach released concurrently. (here) Nevertheless, as Justice Martin suggested, the absence of judicial discretion, as well as the manner of how mandatory minimum sentences operate, will continue to expose their constitutional vulnerabilities.