What is cruel and unusual punishment?

In a pair of companion rulings, the Supreme Court of Canada struck down a mandatory minimum sentencing provision as cruel and unusual punishment while upholding another one for robbery with a firearm.

In the first decision, R. v. Hills, the 8-1 majority refined a two-stage process for determining whether a mandatory minimum sentence is fit and proportionate, initially introduced in R. v. Nur and finessed in R. v. Lloyd and R. v. Bissonnette last year. The court also found the provision unconstitutional based on a reasonably hypothetical situation—shooting an air-powered gun instead of a hunting rifle. The appellant, Jesse Dallas Hills, had conceded the mandatory minimum sentence was not grossly disproportionate on the facts of his case that involved a hunting rifle.

"Sentencing is not an exact science," wrote Justice Sheilah Martin for the majority. "It can be difficult for sentencing judges to select the exact fit punishment as there is often more than one correct sentencing response to a crime. However, that is the burden sentencing judges confront daily. […] The key question is: what specifically is the fit sentence for this individual offender?"

Chantelle van Wiltenburg, an associate with Hunter Litigation Chambers in Vancouver who acted as an intervenor for the CBA with Eric Gottardi of Peck and Company, calls the decision "very positive."

"We saw the court completely dismiss this counter-current of certain judges who were suggesting that the framework needed to be revised," says van Wiltenburg. "They reaffirmed the framework that had been established, and the court specifically said that factors like age, Indigeneity, mental health and addiction are relevant, and it amplified and centred the importance of Indigeneity specifically, and recognized the importance of those characteristics because it informs proportionality."

Also according to van Wiltenburg, the decision shows the importance of testing a hypothetical scenario in an adversarial process, which should encourage criminal defence lawyers to think about how to construct such a scenario.

Lisa Kerr, the director of the Criminal Law Group at Queen's University Law School, says that Hills puts an end to any lingering doubt about relying on reasonable hypotheticals to analyze the constitutionality of mandatory penalties.

"The entire court, including the dissenting justice, followed that approach," Kerr says. "The majority decision expressly rejects how Justice [Thomas] Wakeling of the Alberta Court of Appeal used his own 'personal method' rather than the clear law."

Kerr says that reasonable hypotheticals are used in this context because what's at issue is the law—not the particular offender's circumstances. What's more, not allowing hypothetical reasoning would insulate mandatory penalties from review and, therefore, could have unconstitutional effects in cases that cannot be challenged in court.

Surprisingly for some legal observers, the court identified racial justice as an essential factor in sentencing considerations and determining whether to uphold a mandatory minimum.

"Courts should consider the effect of a sentence on the particular offender," Martin wrote. "The principle of proportionality implies that where the impact of imprisonment is greater on a particular offender, a reduction in sentence may be appropriate. For this reason, courts have reduced sentences to reflect the comparatively harsher experience of imprisonment for certain offenders, like offenders in law enforcement, for those suffering disabilities, or for those whose experience of prison is harsher due to systemic racism. To ensure that the severity of a mandatory minimum sentence is appropriately characterized under s. 12, it is necessary to consider the impact of incarceration in light of these individualized considerations."

Joshua Sealy-Harrington, a law professor at the Lincoln Alexander School of Law, says that systemic racism is present at every stage of interaction between the state and different communities, from policing to the systemic disparities in bail.

"Those systemic disparities exist within prisons themselves," Sealy-Harrington says, pointing to systemic disparities in the correctional system, from granting parole to abuse and violence in prisons. "It would be fairly odd to extricate that from an analysis that is seeking to render a proportional punishment," he says.

"To not consider that would be to say that courts should not be considering the reality of punishments that are doled out from the state," Sealy-Harrington says. The choice for courts, he adds, is between "ignoring what are documented inequalities in carceral systems, or accounting for those documented inequalities in measuring out proportional sentences." 

"I think what the court is saying here is that we should be accounting for those disparities."

Kerr notes that the court found that judges should avoid thinking of imprisonment as an abstract mathematical calculation. They should instead consider how prison infrastructure and culture will impact those with particular vulnerabilities.

"Support for these ideas can be found in cases tracing back several decades, but this is the most forceful contemporary confirmation from the Supreme Court," says Kerr. "This decision sends a message to lower courts that will be relevant to all of their sentencing decisions." When deciding on the fitness of a sentence, they must "consider what prison will actually be like for this person, given how prisons operate and the consequences and impacts it delivers."

According to van Wiltenburg, it appears to be the first time that the Supreme Court has alluded to the application of Gladue factors to other racialized groups, including Black offenders. "The court has not yet opined on how Gladue applies to those other racialized groups but seems to be endorsing it implicitly in its analysis here," she says. "The fact that there is a recognition that a certain number of months doesn't impact all offenders equally is quite interesting."

van Wiltenburg notes that the Hills ruling also tackles the issue of dignity, as applied to mandatory minimums, building on its Bissonnette ruling.

Sealy-Harrington adds that Hills is a further signal from the court that counsel needs to consider race in their advocacy as a matter of competence.

"You can't really do effective racial justice work and be 'colour-blind' or race-evasive," Sealy-Harrington says. "Hills is the court echoing that call." When the court says that analysis should take account of systemic disparities in sentencing, it's essential to have racially-literate counsel. "You need lawyers who understand the significance of race everywhere, especially in settings like criminal punishment, because that is part of the argument that they need to inform the court of." 

If Black or Indigenous offenders are subject to the disproportionate use of solitary confinement, then that needs to be brought into the conversation, says Sealy-Harrington. "If you're not thinking of sentencing, prisons, or parole in the context of different communities that come before the courts, then you're missing a key part of what should be a very foreseeable aspect of your advocacy in fashioning a fit sentence," he concludes.

In the companion case of R. v. Hilbach, the Supreme Court applied the framework set out in Hills and upheld the mandatory minimum sentence for robbery with a firearm. 

"Although Hills is a robust and expansive articulation of the reasonable hypothetical test, which is a very positive result, it is important to keep in mind that in its application in Hilbach, the SCC left two mandatory minimum penalties standing," van Wiltenburg says. "What is more, the majority upheld one mandatory minimum penalty despite the fact that it mandated a term of imprisonment—five years—that was nearly double what the court found was proportionate for Mr. Hilbach, a youthful Indigenous offender—three years."

She finds it hard to square that conclusion with the statement in Hills about the need to assess "gross disproportionality" with due regard to Gladue factors, the systemic discrimination experienced by Indigenous offenders, and the distinct ways in which such individuals often experience punishment.

"Although Hills is very positive in its articulation of the reasonable hypothetical test, Hilbach reaffirms, or perhaps even heightens, the significant threshold that is required to strike down mandatory minimum penalties in practice," van Wiltenburg says. "There is a risk that this high standard will operate to the distinct detriment of disadvantaged offenders—the very same people whose rights are supposed to be vindicated by an expansive conceptualization of the reasonable hypothetical test."