Case information

Charter of Rights — Criminal law — Sentencing — Mandatory minimum sentence — Whether the Alberta Court of Appeal erred in finding that s. 244.2(3)(b) of the Criminal Code does not constitute cruel and unusual punishment that violates s. 12 of the Charter — Whether the Alberta Court of Appeal erred in failing to consider the appellant’s Métis status in re-sentencing him — Criminal Code, R.S.C. 1985, c. C-46, s. 244.2(3)(b).

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(PUBLICATION BAN)

The appellant, Jesse Dallas Hills, pled guilty to four charges from an incident in May 2014 where he swung a baseball bat and fired a shot with his rifle at an occupied vehicle, smashed the window of a parked vehicle and shot a few rounds into an occupied family residence. One of the charges was the intentional discharging of a firearm into or at a place, knowing that or being reckless as to whether another person is present in the place under s. 244.2(1)(a) of the Criminal Code, which carries a minimum four-year imprisonment sentence. Mr. Hills alleged that the minimum sentence under s. 244.2(3)(b) of the Criminal Code violated his constitutional right to not be subjected to any cruel and unusual treatment or punishment by virtue of s. 12 of the Charter.

At trial, Mr. Hills presented a scenario that he claimed could reasonably occur and for which the four-year mandatory minimum sentence would constitute cruel and unusual punishment. Taking into account this hypothetical case proposed by Mr. Hills where a young person intentionally fires an air-powered pistol or rifle at a residence, the trial judge found that despite the minimum four-year sentence not resulting in a grossly disproportionate sentence for Mr. Hills, it is reasonably foreseeable that it would result in a grossly disproportionate sentence for other potential offenders. The trial judge therefore found that the mandatory minimum sentence contravened s. 12 of the Charter and could not be saved by s. 1. As a result, he declared s. 244.2(3)(b) of the Criminal Code to be of no force and effect. Mr. Hills was sentenced to imprisonment for a term of three and a half years.

The Alberta Court of Appeal overturned the trial judge’s finding of unconstitutionality and set aside the declaration of invalidity in a judgment containing three separate concurring reasons. Justices O’Ferrall and Wakeling were critical of the expansive usage of hypotheticals in this Court’s s. 12 Charter jurisprudence and invited this Court to abandon it. The appeal against the sentence for discharging a firearm was allowed and the sentence was increased to four years imprisonment.