Mr. Hills consumed a large amount of prescription drugs and alcohol, before leaving his home in Alberta with a loaded big game hunting rifle and a baseball bat (for details of the facts, see Hills, paras 16-20). The driver of a passing car called the police after Mr. Hills swung his bat at the car and fired a shot at it. Before the police arrived, Mr. Hills had smashed the windows of a parked car and fired his gun at a residential home; the round of shots went through the house’s living room window, through a wall and into another room, before it stopped in a drywall stud and bookcase. The shots were fired into parts of the home where a person could have been hit.
The house was occupied at the time by two parents and their two children. The father was in the room at which Mr. Hills had fired his first shot. When he heard Mr. Hills trying to break through the front door, the father opened the door and yelled at him to get away. Mr. Hills fired again. The father managed to flee to the basement with the rest of the family until the police arrived.
Mr. Hills could not recall any of these events and did not know why he had acted as he did.
Court of Queen’s Bench of Alberta
Mr. Hills pled guilty to four offences related to causing property damage, pointing and discharging a firearm, and possession of a firearm without a licence (for details of the judgments below, see Hills, paras 21-28).
At sentencing, Mr. Hills challenged the constitutionality of s. 244.2(3)(b) of the Code, which imposes a four-year mandatory minimum sentence for intentionally discharging a non-restricted firearm into or at a house. To do so, Mr. Hills employed a reasonable hypothetical scenario to illustrate that the minimum sentence was grossly disproportionate and therefore, violated s. 12 of the Charter.
The reasonable hypothetical is a device used to assess the constitutionality of provisions based on the circumstances of a reasonable hypothetical offender, rather than those of the actual offender before the court. Mr. Hills relied on a scenario where a hypothetical offender intentionally discharges a firearm that is incapable of penetrating a typical residence’s wall, and therefore, is unlikely to pose a significant threat. A firearms expert testified that eight different types of air-powered guns like BB guns and paintball markers fit this criterion, thereby falling within the scope of the impugned provision.
Because the wording of the provision captures circumstances of low moral blameworthiness and risk of harm as described in the hypothetical scenario, the sentencing judge concluded that the impugned provision was unconstitutional. The judge imposed a lesser sentence of three and a half years of imprisonment for Mr. Hills.
The Crown appealed both the finding that the impugned provision violated s. 12 and the sentence imposed. The Alberta Court of Appeal allowed the appeal on both grounds.
Justice Antonio found that the expert evidence was insufficient for the purposes to which it was applied. She held that the psychological and social harm from reckless use of a firearm should also have been considered, concluding that an appropriate sentence for Mr. Hills was four and a half years of imprisonment. In their concurring opinions, Justices O’Ferrall and Wakeling called for the SCC to revisit its s. 12 jurisprudence, and that reasonable hypothetical scenarios ought not to be used in s. 12 challenges.
The Court laid out the framework for assessing the constitutionality of a mandatory minimum sentence, which consists in a two-stage inquiry. The first stage of the analysis requires to determine what the fit sentence for either the actual offender or a reasonably foreseeable offender in a reasonable hypothetical would be.
Once the fit sentence is determined in the first stage, the second stage of the analysis is determining whether the difference between the fit sentence and the mandatory minimum is so grossly disproportionate that it amounts to cruel and unusual punishment. This is a three-part questioning which analyzes the scope and reach of the offence; the effects of the penalty on the offender; and the penalty itself, including the balance struck by its sentencing objectives such as denunciation, deterrence, and rehabilitation.
In the circumstances of the case at hand, the Court found that the mandatory minimum sentence was grossly disproportionate, as it applied to a wide spectrum of conduct, including acts that present little danger to the public, while disregarding sentencing norms and the harmful impact on a youthful offender. The Court reinstated the sentencing judge’s lesser sentence for the defendant and struck down the provision providing the mandatory minimum.
intentionally discharging a firearm into or at a place, knowing that or being reckless as to whether another person is present in the place
The defendant fired his gun at a residential home; the round of shots went through the house’s living room window, through a wall and into another room, before it stopped in a drywall stud and bookcase. The shots were fired into parts of the home where a person could have been hit.
pointing a firearm at the occupant of a car
The driver of a passing car called the police after Mr. Hills swung his bat at the car and fired a shot at it.
possession of a firearm without a license
The defendant was in possession of a loaded .303 Enfield bolt action rifle, for which he didn't have a licence
mischief to property under $5,000
Mr. Hills smashed the windows of a parked car and fired his gun at a residential home; the round of shots went through the house’s living room window, through a wall and into another room, before it stopped in a drywall stud and bookcase.
Supreme Court of Canada
The Supreme Court clearly set out the test to be applied when assessing the constitutionality of a sentence, providing a detailed clarification of the framework for challenging a mandatory minimum sentence.