B.C. Civil Liberties Association argues fixed sentences without personalization 'cruel and unusual'
The hot topic of mandatory minimum sentences came front and centre at the Supreme Court of Canada Tuesday when it heard arguments on sentences relating to firearms offences, including that of the British Columbia Civil Liberties Association.
“Sentencing is, and should always be, a very personal process based on the person and the circumstances,” says Osler Hoskin & Harcourt LLP lawyer Emily MacKinnon, representing BCCLA, which has intervenor status. “Mandatory sentences for relatively small crimes are inherently unconstitutional, we believe.”
This week, the Court will have the opportunity to hear arguments on whether the mandatory minimum sentences for robbery with a firearm constitute cruel and unusual punishment, as well as the question of the constitutionality of a "tough on crime" law that prevents a judge from allowing an offender to avoid jail time by imposing a conditional sentence for certain crimes.
In the Hilbach case, Ocean Hilbach pleaded guilty and was convicted of robbery while using a prohibited firearm.
Hilbach, aged 19 at the time of the offence, robbed a convenience store in Edmonton with an unloaded sawed-off shotgun. With his face covered, he pointed the gun at two employees and demanded cash. His accomplice punched one of the employees and kicked the other. They fled with $290 in lottery tickets.
The sentencing judge found that the mandatory minimum five-year sentence, in the case of a first offence, was cruel and unusual in Hilbach’s circumstances. While his actions were undoubtedly wrongful and deserving of punishment, the judge noted several factors warranted a lighter sentence.
Hilbach was an Indigenous teenager with a family history of residential school attendance. He had an 18-month-old daughter, a grade 10 education, and “a history of physical abuse, family violence, chronic unemployment, and gang involvement.”
The sentencing judge determined that five years in prison would do far more harm to this young man than good. He sentenced Hilbach to two years less a day instead so that the offender could be eligible for probation.
In the other case, Curtis Zwozdesky pleaded guilty and was convicted of using a firearm, as a party to the offence, in the course of two robberies. Zwozdesky was the driver of the “getaway vehicle” when he and two others robbed a convenience store in Caslan, Alberta. At the time of the offence, Mr. Zwozdesky was 53 years of age, had no prior record, and had a grade 9 education.
Due to a serious motor vehicle accident some decades ago, he was unemployed and had been diagnosed with severe post-traumatic cognitive dysfunction, fibromyalgia, nerve damage and chronic pain. He used prescription drugs and hard and soft illegal drugs for pain management. He said he had no memory of the first robbery.
The sentencing judge in Zwozdesky’s case also found the offender’s blameworthiness to be “medium to high,” but found that the mandatory minimum sentence of four years was cruel and unusual. A wide variety of people in various circumstances may commit the offence of robbery with a prohibited firearm, and not all of those people are of equal blameworthiness.
However, the sentencing judge determined that the mandatory minimum was appropriate for the offender before. Zwozdesky was sentenced to a total of four years for both offences.
The majority of the Alberta Court of Appeal agreed with the sentencing judges, though they would have increased Hilbach’s sentence to three years. A dissenting judge would have allowed the Crown’s appeals and set aside the declarations of unconstitutionality.
MacKinnon says the BCCLA has advocated against mandatory minimum sentences for nearly two decades. It argues that such minimums lead to unjust outcomes because they deny judges the discretion to craft a fit and proportionate sentence.
She adds that mandatory minimums have a “disproportionate impact” on Indigenous people and people with mental disabilities and don’t do much to achieve the purported goals of deterrence, certainty, and transparency.
In this appeal, MacKinnon says the BCCLA argues that a prison sentence exceeding a fit sentence by any length is cruel and unusual and contrary to s. 12 of the Charter. “Incarceration is the most severe punishment and has serious consequences for the individual and society,” she says.
Therefore, a law that requires a judge to impose a jail sentence that fails to account for the unique circumstances of the person being sentenced is unconstitutional.
The BCCLA’s factum for the SCC case also states: “Imprisonment should not be imposed for reasons that are divorced from the prisoner.” When an incarceration sentence arises by operation of a mandatory jail term, applied in a manner divorced from any consideration of that offender’s circumstances, the result is a grossly disproportionate sentence if it is any more than that offender deserves. A merely excessive . . . sentence does not exist.”
The BCCLA’s factum says: “There is no such thing as a merely excessive imprisonment. “An excessive period of imprisonment is either unfit, in which case it can be corrected on appeal, or else it is unconstitutional, which arises if it is not imposed for reasons connected to the individual offender.”
The factum also argues that incarceration “has a ripple effect, touching nearly every aspect of the offender’s life and community.” These range from the health and wellbeing of the offender to the impact of incarceration on an offender’s family and the impact on communities.
“The collateral costs of increasingly punitive approaches to sentencing – the human and social costs – are difficult to measure, but necessary to appreciate.”
According to MacKinnon, courts have long recognized the importance of using “discretionary and extremely individual” sentencing principles. The necessity of considering individual circumstances is particularly acute for Indigenous offenders, and courts must consider the unique systemic or background factors which may have played.
Using a personalized approach would also not prohibit lawmakers from legislating mandatory sentences: it would merely require that any mandatory sentence be tied to an individual assessment and individual characteristics. The factum points out that “just as Parliament may legislate mandatory aggravating factors, Parliament may attach mandatory minimum consequences to such factors.”
The Supreme Court has looked at section 12 of the Charter recently, expanding the definition of what types of sentences meet the definition of cruel and unusual punishment. In R. v. Boudreault, the Court struck down the mandatory victim surcharge that added a relatively small fine onto every charge of which a person was convicted. Boudreault was the first time section 12 was successfully used to strike down a monetary penalty.
In December, the federal government introduced a bill in the House of Commons that would repeal mandatory minimum penalties for drug offences and some gun-related crimes.
It would allow a judge to exercise discretion in imposing sentences that relate to the facts of the case, including considerations of the individual’s experience with systemic racism and whether they pose a risk to public safety.
The legislation would allow for greater use of conditional sentences, including house arrest, counselling or treatment, for those who do not threaten public safety.
It also would require police and prosecutors to consider alternative measures for simple drug possession cases, such as diverting individuals to treatment programs, instead of laying charges or prosecuting.
These reforms have been long called for by advocates, who have argued that current measures perpetuate systemic racism in Canada’s justice system, leading to disproportionately higher imprisonment rates for Indigenous peoples, Black Canadians, and those struggling with substance use and addiction.
The bill revives legislation previously tabled in February, did not receive parliamentary approval before Prime Minister Justin Trudeau called a federal election in August.
Indigenous adults represent five percent of the Canadian population but 30 percent of federal prisoners, double what it was 20 years ago, and the figure is even higher in some provinces.
Black Canadians account for three percent of the population but 7.2 percent of federal offenders, added Lametti.
Justice Minister David Lametti said, at the time the proposed legislation was introduced, that mandatory minimum sentences create a rigid, one-size-fits-all approach. This makes it hard for judges to consider mitigating factors and impose a sentence that fits the crime. He added the legislation is not aimed at “hardened criminals” but first-time, low-risk offenders.
Mandatory minimums would remain for serious convictions such as murder, sexual offences including child sexual offences, impaired driving, and severe firearm offences, including those linked to organized crime.
Despite the proposed legislation, MacKinnon says it is essential for the SCC to rule on important constitutional issues such as cruel and unusual punishment, even if plans are in the works to change the law to conform to that. She adds that these mandatory sentences have been increasingly imposed as part of a “tough on crime” agenda that doesn’t consider unique circumstances.
As well, today the SCC will hear the case of Cheyenne Sharma, who pleaded guilty to importing cocaine in exchange for $20,000. The BCCLA argues that a law enacted in 2012 under the Conservative government of Stephen Harper, which prevents judges from allowing an offender to avoid jail by imposing a conditional sentence for certain crimes, is unconstitutional. The organization also says the law perpetuates a "colonial" approach to justice against Indigenous people, leading to higher rates of incarceration, and that conditional sentences should be available to more people,especially Indigenous people, given the systemic racism they have faced. Vincent Larochelle of Larochelle Law is counsel for the BCCLA.