Six takeaways from the case
Nik Khakhar (3L) is Editor at the Criminal Law Students’ Association.
In January, the Supreme Court of Canada (SCC) delivered a landmark ruling on the principles of sentencing in the case of R v Hills, 2023 SCC 2. The case involved a 38-year-old man named Jesse Dallas Hills, who was convicted of possession of a loaded prohibited firearm, possession of drugs for the purpose of trafficking, and breach of probation. Hills was sentenced to five years and seven months in prison, which he argued was a disproportionate sentence given the nature of his offences and his personal circumstances.
In determining the appropriate sentence for Hills, the Court considered both the gravity of the offence and his degree of responsibility. The gravity of the offence was found to be high, given the serious risks posed by the possession of a loaded firearm and the harm caused by drug trafficking. However, the Court also considered Hills’ personal circumstances, including his difficult upbringing, struggles with mental health and addiction, and his efforts to turn his life around.
The Court ultimately found that the sentence imposed on Hills was disproportionate to his degree of responsibility for the offences, and reduced his sentence to three years and one month. The Hills decision reaffirms the importance of the principles of sentencing, particularly the concept of proportionality. To ensure a just sanction, sentences must be proportional to the gravity of the offence and the offender’s degree of responsibility.This case invited the Court to clarify the interpretation of s. 12 of the Canadian Charter of Rights and Freedoms (the Charter). I outline six takeaways from the Hills decision below.
- Reasonable hypothetical scenarios are valid ways to assess the constitutionality of provisions
The SCC reaffirmed that reasonable hypothetical scenarios are a valid device to assess the constitutionality of provisions. A reasonable hypothetical scenario involves assessing the constitutionality of provisions based on the circumstances of a hypothetical offender rather than those of the actual offender before the court. Hills used a reasonable hypothetical scenario to illustrate that the mandatory minimum sentence was grossly disproportionate and therefore violated s. 12 of the Charter.
- Low moral blameworthiness and risk of harm can be considered in reasonable hypotheticals
The SCC held that low moral blameworthiness and risk of harm can be considered in reasonable hypotheticals. The wording of the firearms provision captured circumstances of low moral blameworthiness and risk of harm as described in the hypothetical scenario. Thus, the sentencing judge concluded that the impugned provision was unconstitutional.
- Psychological and social harm should also be considered
The SCC clarified that psychological and social harm from the reckless use of a firearm should also be considered in assessing the constitutionality of provisions. Antonio J found that the expert evidence was insufficient for the purposes to which it was applied. She held that an appropriate sentence for Hills was four and a half years of imprisonment.
- Proportionality is a central tenet of Canada’s sentencing regime
The SCC reaffirmed that proportionality is a central tenet of Canada’s sentencing regime. Courts should fix sentences in light of the principles of parity and proportionality. Imprisonment is the “penal sanction of last resort.”
Central to its analysis of proportionality was the SCC’s affirmation that proportionality is a bifurcated approach that considers both the gravity of the offence and the offender’s responsibility separately. The gravity of the offence refers to the general seriousness of the offence, which is reflected in the potential penalty imposed by Parliament and in any specific features of the commission of the crime. 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.
In addition, the sentence imposed must be commensurate with the responsibility and moral blameworthiness of the offender, and must not be greater than the offender’s moral culpability and blameworthiness. Proportionality requires consideration of both gravity and responsibility, with the aim of ensuring a just sanction.
- There is a difference in the standard of proportionality when evaluating mandatory minimum sentences compared to judicially handed sentences
In R v Lyons, 1987 CanLII 25 (SCC), La Forest J explained that the word “grossly” in the standard of s. 12 reflects the Court’s concern not to hold Parliament to an exacting standard that accommodates every crime and offender. In Hills, the gross disproportionality standard intends to reflect deference to Parliament in crafting sentencing provisions. The word “grossly” signals that Parliament is not required to impose perfectly proportionate sentences—especially in mandatory minimum sentences—where there is likely to be some disproportion between the individually fit sentence and the uniform mandatory minimum.
On the other hand, sentences that are products of judicial discretion can be overturned if they are simply disproportionate—they do not need to meet the standard for gross disproportionality to be overturned. The lower standard for reversing a judicial sentence is likely attributable to their unelected nature.
- Mandatory minimum sentences can violate s. 12 of the Charter
The SCC held that s. 244.2(3)(b) of the Criminal Code violated s. 12 of the Charter by requiring a four-year minimum sentence for an aggravated form of the offence of intentionally discharging a firearm. The Court found the provision grossly disproportionate in its effects on offenders whose moral blameworthiness and risk of harm were low.
Conclusion
In conclusion, Hills clarifies the use of reasonable hypothetical scenarios to challenge the constitutionality of Charter provisions. The decision reaffirms the importance of proportionality in Canada’s sentencing regime and explains the importance of considering psychological and social harm in assessing the constitutionality of provisions.
The decision also further clarified the principles of sentencing, particularly the concept of proportionality. The SCC noted that proportionality is a bifurcated approach that considers both the gravity of the offence and the offender’s responsibility separately. The concept of proportionality is rooted in fairness and justice to prevent unjust punishment for the common good and ensure justice for the offender.
