Canada’s top court has reaffirmed its willingness to strike down mandatory minimum sentences on the basis of hypothetical scenarios involving imaginary offenders, rejecting a call from two Alberta judges for it to abandon the practice.
The idea behind the scenarios is that if a sentence would be grossly excessive for a person in a reasonably foreseeable set of circumstances, it’s cruel and unusual punishment and should not stand. The courts do not wait indefinitely for the right set of facts to arise before they determine whether a law is bad.
On Friday, the Supreme Court of Canada upheld two mandatory minimum sentences for gun crimes – five years for a first armed robbery using a prohibited weapon, and four years for a robbery with an ordinary firearm – saying it is difficult to imagine armed robberies that would not amount to serious crimes. (Lower courts in Alberta had ruled both minimum sentences unconstitutional, partly on the basis of reasonable hypotheticals.)
But the Supreme Court did rule unconstitutional a four-year mandatory minimum sentence for discharging a firearm into an occupied place. The court threw out the sentence because the judges could foresee a scenario in which the mandatory minimum would apply to a minor crime. The scenario involved a young person firing a paintball gun at a house.
Taken together, the court’s rulings reaffirm that mandatory minimums will fall if they cover a broad range of activity, rather than focusing narrowly on serious crime.
“Most mandatory minimum sentences are going to be unconstitutional because they cover a range of offending and offenders,” said University of Alberta law professor and criminal-defence lawyer Peter Sankoff, who was not involved in the cases.
The Supreme Court’s distinctive approach to using hypothetical scenarios is unheard of in the United States, where minimums can be decades long.
In the U.S., a lawyer who tried to argue against a four-year minimum using the hypothetical paintball example would probably receive a “succinct and concise rejection,” said Michael McAuliffe, a former federal prosecutor and former elected state attorney in Florida.
Outside of death-penalty cases, challenging a mandatory minimum over its lack of proportionality to the case at hand almost never succeeds in American courts, Mr. McAuliffe said.
“In contrast to the Canadian system, our system lacks mercy and restraint, and frankly, rationality,” said Amy Fettig, executive director of the Sentencing Project, a U.S. group that advocates for humane responses to crime that minimize imprisonment.
Decisions of the U.S. Supreme Court have limited the Eighth Amendment’s protections against cruel and unusual punishment, she added.
The result: “We’ve got the world’s largest prison system but we don’t have the world’s safest country, nor do we have the world’s most just country.”
The use of hypotheticals has led to scores of successful constitutional challenges to mandatory punishments in federal law.
The federal Justice Department said in an e-mail to The Globe and Mail that it is aware of 174 mandatory minimum penalties struck down by lower courts since 2016, including 43 by appellate courts. Canada now has a patchwork of sentencing rules, because constitutional rulings in one province do not apply in others.
The Supreme Court was ruling Friday on three cases involving gun crimes and mandatory minimums. In each, a trial judge had used “reasonable hypotheticals” to determine whether the sentence was grossly excessive, and therefore a form of cruel and unusual punishment.
One of the cases dealt with Jesse Hills, of Lethbridge, Alta. Mr. Hills had been using prescription drugs and drinking alcohol when he shot into an occupied house with a hunting rifle, terrifying a family inside. Firearms experts testified that other types of guns, such as BB guns, wouldn’t penetrate walls.
Because the four-year mandatory minimum sentence would have been grossly excessive in a hypothetical case involving one of those less dangerous guns, the trial judge struck down the law and gave Mr. Hills three and a half years. (The federal government has since repealed this mandatory minimum and about 20 others.)
But when the Hills case reached the province’s appeal court, two judges, Justice Thomas Wakeling and Justice Brian O’Ferrall, slammed the use of hypotheticals as “bizarre” and “make-believe,” and urged the Supreme Court to throw out its 30-year-old principles on cruel and unusual punishment.
The Supreme Court responded to the extraordinary challenge with an unusually direct response.
“Justices O’Ferrall and Wakeling’s desire to excise the use of reasonably foreseeable scenarios [is] … completely contrary to both precedent and principle,” Justice Sheilah Martin of Alberta wrote.
Reasonable hypotheticals, she said, “promote the rule of law by underscoring how no one should be convicted or sentenced under an unconstitutional law.”
All nine Supreme Court judges accepted the use of reasonable hypotheticals, though Justice Suzanne Côté, the lone dissenter in the Hills case, said shooting a paintball gun would not have been covered by the minimum penalty.
A second case before the Supreme Court concerned Ocean William Hilbach, 19, who robbed an Edmonton convenience store using a sawed-off shotgun and accompanied by a 13-year-old. The trial judge struck down the five-year mandatory minimum partly on the basis of hypotheticals, and gave Mr. Hilbach two years in prison.
The Alberta Court of Appeal upheld the trial judge’s finding that the mandatory minimum was unconstitutional, but raised Mr. Hilbach’s prison sentence to three years.
In Mr. Hilbach’s case, a Supreme Court majority said three years would have been a fit and proportionate sentence. But the court found that five years was not grossly disproportionate, for him or in hypothetical cases. It upheld the minimum punishment’s constitutionality, by a 7-2 count.
Justice Mahmud Jamal and Justice Andromache Karakatsanis dissented, saying Mr. Hilbach had a tragic background and had been raised by his paternal grandparents, both of them residential school survivors.
“It shocks the conscience to send a youthful Indigenous offender to prison for five years when, as the sentencing judge determined, doing so would harm both the offender and society,” Justice Jamal and Justice Karakatsanis said in their co-written dissent.
The third case before the court involved Curtis Zwozdesky, 53. The Supreme Court majority restored his four-year minimum armed robbery sentence, by a 7-2 count.