CRIMES, COURTS, AND COMMENTARY
Interviews, current events, recommendations, and more --
all geared to the criminal law student community.
all geared to the criminal law student community.
Nik Khakar (3L)6 Takeaways
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, his struggles with addiction and mental health, 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 decision in R v Hills reaffirms the importance of the principles of sentencing, particularly the concept of proportionality. Sentences must be proportional both to the gravity of the offence and the offender's degree of responsibility, with the aim of ensuring a just sanction. This case invited the Court to clarify the interpretation of s. 12 of the Canadian Charter of Rights and Freedoms. In this blog post, I will focus on six takeaways from the Hills decision. 1. Reasonable hypothetical scenarios are valid ways of assessing 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 considering the constitutionality of provisions using the circumstances of a hypothetical offender rather than those of the actual offender before the court. In this case, Mr. Hills used a reasonable hypothetical scenario to illustrate that the mandatory minimum sentence was grossly disproportionate and therefore violated s. 12 of the Charter. 2. Low moral blameworthiness and risk of harm can be considered in reasonable hypotheticals. The SCC held that low moral blameworthiness and risk of harm are factors that 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. Therefore, the sentencing judge concluded that the impugned provision was unconstitutional. 3. Psychological and social harm should also be considered. The SCC clarified that psychological and social harm from reckless use of a firearm should also be taken into account in determining the constitutionality of provisions. At the court below (the Alberta Court of Appeals), Antonio J. found that the expert evidence was insufficient for the purposes to which it was applied, and held that an appropriate sentence for Mr. Hills was four and a half years of imprisonment. 4. 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 was the affirmation that proportionality is a bifurcated approach that considers the gravity of the offence and the offender's responsibility separately. The gravity of the offence refers to the seriousness of the offence in a general sense and is reflected in the potential penalty imposed by Parliament and in 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 their individual responsibility for the crime, including 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. 5. There is a difference in the standard of proportionality when evaluating mandatory minimum sentences compared to judicially imposed sentences. LaForest 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 standard of gross disproportionality is intended 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. It is likely that the lower standard for reversing a judicial sentence is attributable to their unelected nature. 6. Mandatory minimum sentences can violate s 12 of the Charter. The SCC held that s 244.2(3)(b) of the Criminal Code, mandating a four-year minimum sentence for an aggravated form of the offence of intentionally discharging a firearm, violated s. 12 of the Charter. The provision was found to be grossly disproportionate in its effects on offenders whose moral blameworthiness and risk of harm were low. In conclusion, the SCC decision in R v Hills provides clarity on 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 clarifies the importance of considering psychological and social harm in assessing the constitutionality of provisions.
The Supreme Court's decision in Hills clarified the principles of sentencing, particularly the concept of proportionality. The court 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, with the purpose of preventing unjust punishment for the common good and ensuring justice for the offender.
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