In June 2017, Mr. Hilbach and his 13-year-old accomplice robbed a convenience store in Edmonton with an unloaded sawed-off rifle (Hilbach, para 20). Mr. Hilbach pointed the weapon at two store employees and demanded cash, while his accomplice punched one employee and kicked the other (Hilbach, para 20). They escaped with lottery tickets worth $290 before their apprehension. At the time of the offence, Mr. Hilbach was a 19 year old Indigenous man, multi-time offender, on probation, and subject to a firearms prohibition.
He pleaded guilty to and was convicted of robbery using a prohibited firearm.
At his sentencing, Mr. Hilbach raised a s. 12 Charter challenge.
He argued that the mandatory minimum punishment of five years prescribed by s. 344(1)(a)(i) was grossly disproportionate given his identity and the circumstances of his offence. The sentencing judge’s assessment of Mr. Hilbach’s claim took into account a pre-sentence and Gladue report, which analyzed detailed circumstances related to his upbringing and life as an Indigenous person that contributed to bringing him before the court. In particular, he noted Mr. Hilbach’s struggles with alcohol and substance addiction, having grandparents that attended residential schools, financial hardship, physical abuse, family violence, chronic unemployment, and gang involvement. Additionally, he had an 18 month old daughter at the time of sentencing. Thus, the sentencing judge reasoned that “while the gravity of the offence was high, and deterrence and denunciation were important, the effects of a five-year penitentiary sentence were ‘severe’, as a longer sentence increased the likelihood of ‘a life of criminal and other anti-social behavior’”. Instead, a fit and proportionate sentence for Mr. Hilbach was two years less a day.
In other words, the five-year mandatory minimum sentence was grossly disproportionate and thereby violated s. 12 of the Charter.
The Crown appealed to the Alberta Court of Appeal.
In assessing the fit and proportionality of the sentence, the court increased Mr. Hilbach’s sentence to three years. The majority noted that the sentencing judge erred in placing significant weight on Mr. Hilbach’s Gladue factors and failed to appropriately balance the co-existing sentencing principles of deterrence and denunciation, which were aggravating factors for his offence.
The Supreme Court emphasized that the threshold for establishing a grossly disproportionate sentence is high. The majority explained that the mandatory minimum sentence must be “so excessive as to outrage standards of decency” and noted that both the sentencing judge and the court of appeal erred in concluding there was no valid objective behind the penalty in this case.
In this instance, the mandatory minimum sentences emphasized deterrence, denunciation, and retribution over rehabilitation and other sentencing purposes. The majority gave deference to these objectives set by Parliament and concluded that the mandatory minimum sentence prescribed by the relevant provisions was not unconstitutional.
Robbery while using a prohibited firearm
The defendant robbed a convenience store with an unloaded sawed-off rifle.
Possession of a prohibited firearm while banned by reason of an order pursuant to s 109
The defendant was in possession of an unloaded sawed-off rifle.
Supreme Court of Canada
The Supreme Court reinforced and emphasized the high threshold to be met for striking down mandatory minimum sentences.