A Year of Sentencing at the Supreme Court of Canada
By Jocelyn Heaton, Articling Student
One of the most important aspects of criminal law for accused persons is their sentencing, determining what sanctions are to be placed upon them, and for how long. However, due to the nature of sentencing case law, requiring sentencing judges be given significant deference on appeal, it is not common that we see sentencing cases make their way to the Supreme Court. However, in March of 2022, four sentencing cases did just that, leading to significant media attention on issues of sentencing. But what actually happened in these cases and what are the impacts on accused persons rights?
In the release of twin decisions in R v. Hills [1] and R v. Hilbach[2] the court considered if s. 244.2(3)(b) and s. 344(1)(a.1) of the Criminal Code respectively, which created a mandatory minimum sentence for gun related offences, were unconstitutional. While the mandatory minimum in Hills was deemed to be cruel and unusual punishment contrary to s. 12 of the Charter, the minimum in Hillbach was upheld as constitutional, however, the section of the Criminal Code was repealed after the appeal was heard, but before the decision was released and therefore the minimum is no longer in place. Importantly, however, the decisions uphold the longstanding sentencing principle of “reasonable hypotheticals” in which defence lawyers are able to argue that a mandatory minimum is contrary to s. 12 because there is a “reasonable hypothetical” in which the sentence would be cruel and unusual, even if those are not the facts and circumstances of the accused before the court. While this often does not change the ultimate sentence of individuals before the court, the use of reasonable hypotheticals allows defence lawyers to challenge mandatory minimums that have the potential to be imposed on accused persons when doing so would be cruel and unusual punishment.
In R v. Sharma [3] the court considered the constitutional validity of the two-year mandatory minimum sentence under s. 6(3)(a.1) of the CDSA and of ss. 742.1(b) and 742.1(c) of the Criminal Code, which make conditional sentences unavailable in certain situations. The Supreme Court held that the legislation was constitutional, and therefore disallowed Ms. Sharma from receiving a conditional sentence. Of note in this case was the defences position that as an Indigenous woman, a conditional sentence would be more suited to the principles of sentencing for Ms. Sharma, and its unavailability violated s. 15 and s. 7 of the Charter. Similar to Hill and Hillbach, this case considered if a statutory limit on sentencing, in this case unavailability of conditional sentences, fails to account for reasonable hypotheticals, or in Ms. Sharmas case the accused before the court, leading to unjustifiable punishment given certain mitigating circumstances. This case, along with Hillbach, indicate that while many mandatory minimums and legislative limiting of sentencing judge’s discretion have been regularity held to be unconstitutional, there are instances in which the court deems such minimums and limitations appropriate. Being aware of any mandatory minimums or legislative limits on sentencing should be an important part of preliminary discussions with clients and counsel, in order to canvass what is at stake should a client plead guilty or be found guilty at trial.
In R v. Bissonette [4] the court considered if s. s. 745.51 of the Criminal Code, which allowed for the stacking of periods of parole ineligibility for multiple murders, was unconstitutional. Prior to this legislation, a murder conviction carried an automatic life sentence, with second degree having 10 year parole ineligibility, and first degree having 25 years. After this legislation, the Crown would be able seek and the court would be able to grant, for example, 100 years of parole ineligibility for an accused convicted of four first degree murders, effectively barring the possibility of parole in their lifetime. As the Queens Prison law Clinic submitted as an intervener, the psychological impacts of this are dire, and the discretion for release ought to be left to the parole boards that are already designed to consider all factors when considering granting parole. The Court agreed with these submissions, as well as the defences submissions, and struck down the legislation. While this does not mean it is even likely that those convicted of multiple murders will be granted parole, it does remove the psychological cruelty of stripping such people of hope and the procedural fairness of parole hearings.
[1] https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19638/index.do
[2] https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/19639/index.do
[3] https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19540/index.do
[4] https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19405/index.do