R v Hilbach: One Step Forward, One Step Back
Emily Chu, 2L, Volume 82 Articles Editor
On Jan. 27, 2023, the Supreme Court of Canada (SCC) released two decisions on mandatory minimum sentencing: R v Hills, 2023 SCC 2 (CanLII) (Hills) and R v Hilbach, 2023 SCC 3 (CanLII) (Hilbach). Hills and Hilbach address mandatory minimum sentences in a contradictory manner, demonstrating that the SCC continues its problematic patchwork approach towards the constitutionality of mandatory minimums. In other words, some mandatory minimums are constitutional while others are not, and often it is impossible to predict which way courts will rule in any given case.
In this context, the two cases shed light on the intersection between sentencing and Indigeneity—and more broadly, race—raising questions about whether courts should fully embrace individualized sentencing principles which give judges discretion to grant reduced sentences below prescribed mandatory minimums (for example, in response to systemic discrimination in the penal system). I argue that they should.
Gladue Principles and Mandatory Minimums
In 1996, s. 718.2(e) was added to the Criminal Code. Its purpose was to address Indigenous over-incarceration by allowing sentencing judges to consider the unique circumstances of Indigenous offenders:
718.2 A court that imposes a sentence shall also take into consideration the following principles:
[…]
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
Three years later, in R v Gladue, [1999] 1 SCR 688, 1999 CanLII 679 (SCC) (Gladue), the SCC gave content to the provision by laying out general instructions for its interpretation, requiring the court to consider: (1) the unique systemic or background factors which may have played a part in bringing the particular offender before the courts; and (2) the types of sentencing procedures and sanctions which may be appropriate for the offender because of their Indigenous heritage. Obviously, a court’s ability to consider these factors is limited if the offender faces a mandatory minimum sentence, which does not give the court any discretion to vary the sentence. However, constitutional challenges to mandatory minimum sentences, like in Hilbach, allow courts to consider the Gladue principles.
Hills and Hilbach: the SCC’s Patchwork Approach
Hills and Hilbach demonstrate that the SCC’s reluctance to reject mandatory minimum sentences limits the value of Gladue and Gladue-like analyses and leads to inconsistent outcomes. In Hills, the SCC declared a mandatory minimum sentence for firearm discharge in an occupied place unconstitutional. Indigeneity, though relevant, did not play a significant role in the decision. Although Mr. Hills had Métis status and argued that the Court of Appeal of Alberta (ABCA) failed to consider this and his Gladue report in re-sentencing him, the SCC did not find it necessary to consider this potential error because sentencing decisions are entitled to a “high level of deference on appeal,” and no argument was made that the sentence was “demonstrably unfit” (Hills at para 172). By contrast, in Hilbach, two mandatory minimum sentences regarding a robbery with a firearm were upheld as constitutional. Gladue principles were discussed more extensively in this case; the titular offender is a member of the Ermineskin Cree Nation who robbed a convenience store in Edmonton with a firearm and was 19-years-old when the offence was committed.
The majority in Hills held that determining the proportionality of a mandatory minimum sentence requires considering its effects on the “particular offender” in question, which can import individualized considerations of race (Hills at para 135). For example, prison may be a harsher experience for some due to systemic racism. Taken together with s. 718.2(e), Indigeneity and, more generally, race are key considerations for the courts when dealing with Indigenous or other racialized offenders facing mandatory minimum sentences.
In Hilbach, the majority considered several Gladue factors in its s. 718.2(e) analysis but nonetheless upheld Mr. Hilbach's mandatory minimum sentence for robbery with a firearm. Despite recognizing that Indigenous offenders are severely impacted by incarceration, the majority ultimately held that the sentence was not grossly disproportionate because Mr. Hilbach’s actions imparted a high degree of “moral blameworthiness” (Hilbach at para 51). Parliament, in mandating the minimum sentence, was justified in prioritizing denunciation and deterrence over rehabilitation for this particular offence.
Karakatsanis and Jamal JJ disagreed with the majority. In their dissent, they argued that considering Mr. Hilbach’s situation through a Gladue lens inevitably leads to the conclusion that the mandatory minimum is grossly disproportionate. Mr. Hilbach was raised by his grandparents, who were both residential school survivors, and his childhood was marked by poverty. His motivation to commit the robbery was indeed motivated by poverty, as he needed money to return home to his reserve. Karakatsanis and Jamal JJ recognized these factors, relating to poverty on reserves and the legacy of colonialism, as exactly the kind of background or systemic factors that have a mitigating effect on sentencing (Hilbach at para 139). Sending Mr. Hilbach to prison for five years would do more harm to both the offender and society; more judicial discretion is required to arrive at a just sentence than what is available. Thus, they rightly argued that the mandatory minimum sentence was grossly disproportionate in Mr. Hilbach’s case.
The Failure of Hilbach
The majority’s treatment of Indigeneity in Hilbach caused confusion by effectively departing from the foundation laid out in the companion Hills decision. Eric Gottardi of Vancouver’s Peck and Company, who acted as counsel for the Canadian Bar Association (CBA), an intervener in both Hills and Hilbach, called Hilbach “disappointing in its application” of principles of rehabilitation and Indigeneity emphasized in Hills. As mentioned in “What is cruel and unusual punishment?” by Dale Smith, Chantelle van Wiltenburg of Vancouver’s Hunter Litigation Chambers, who acted alongside Gottardi for the CBA, said that Hilbach “reaffirms, or perhaps even heightens, the significant threshold required to strike down mandatory minimum penalties in practice.”
Although the SCC signals support for individualized sentencing principles in Hills, upholding the mandatory minimum sentence in Hilbach undermined its message in Hills. Mandatory minimums are wholly incompatible with a justice system founded on individual sentencing principles. If the SCC wants to make room for reconciliation and racial justice, as it signals in Hills, it must fully embrace an individual sentencing approach which does not involve standardized sentences incapable of considering the unique legacies of harm and oppression.
Perhaps no injustice is committed when a court considers Gladue principles and does not find them compelling enough to reduce a sentence or render a mandatory minimum unconstitutional, as exhibited by the Hilbach majority. However, the majority’s reluctance to strike down Mr. Hilbach’s mandatory minimum sentence is disappointing. Systemic factors directly connected Mr. Hilbach to the robbery, and sending him to jail for two more years (to meet the minimum sentence requirement) will likely only cause additional trauma and complicate his rehabilitative efforts, as discussed by the minority (Hilbach at para 140). Endorsing a three-year sentence was the more just outcome in this scenario.
Nothing prevents the SCC from recognizing that Gladue principles may occasionally overwhelm the need for punishment, retribution, or deterrence, given that they have already rejected the idea that Gladue provides a blanket discount for Indigenous offenders. The dissenting justices rejected the ABCA’s suggestion that Gladue factors were overemphasized by the sentencing judge (R v Hilbach, 2020 ABCA 332 (CanLII) at para 49). Is it possible to overemphasize Gladue factors? Perhaps. However, the Court's wariness of issuing race-based discounts should not dismiss the valid deployment of a Gladue analysis because it was compelling enough to justify a reduced sentence for an Indigenous offender. In this case, the sentencing judge reasonably concluded that, when weighing all the factors as part of an individualized sentencing approach, a reduced sentence for Mr. Hilbach would leave society better off.
Hills: The Unrealized Promise of Individualized Sentencing
Fortunately, Hilbach is only one decision, and the promise of increased individualized sentencing principles in Hills could be more influential than its counterpart, particularly in its potential to open up Gladue principles for other racialized groups in Canada. As stated in “What is cruel and unusual punishment?” Van Wiltenburg said that the SCC “has not yet opined on how Gladue applies to those other racialized groups but seems to be endorsing it implicitly [in Hills].”
Some judges have already contemplated this. In R v Jackson, 2018 ONSC 2527 (CanLII) (Jackson), Nakatsuru J discussed that while there is potential for Gladue-like principles to extend to other racialized groups, each group’s situation requires a unique approach. Nakatsuru J rejected the mere application of a Gladue template to African Canadians because the situations of each group vary. However, when considering Mr. Jackson’s decision to commit the offence in light of historical and systemic factors such as slavery, policies of segregation, and the disproportionate incarceration experienced by African Canadians, Mr. Jackson was given a reduced sentence.
It is an open question whether the language in Hills would support an approach like the one taken in Jackson. But what is clear from Jackson is its explicit endorsement of an individual sentencing paradigm. Courts will be able to genuinely explore the fulsome impacts of race on criminal sentencing only through this approach. If that is the future Hills is leading us towards, mandatory minimum sentences should not be a part of it.
To conclude, I agree with Nakatsuru J on this point: “[W]hat is wrong in paying particular attention to the circumstances of the African Canadian offender to achieve a truly proportionate sentence? The answer is self-evident. Nothing.” (Jackson at para 115).