LILLEY: Supreme Court issues conflicting, ridiculous rulings on mandatory minimum sentences

On May 6, 2014, Jessie Hills shot at a car driving past him and then into a home where a couple and their two young children were in for the night.

Hills was high on prescription drugs, drunk on copious amounts of booze and very reckless, but a judge said sentencing him to four years as the law demanded would be cruel and unusual punishment.

On Friday, the Supreme Court of Canada upheld that ruling.

It was one of a pair of court rulings dealing with mandatory minimum sentences for gun crimes that had very different outcomes.

In the case of Hills, the court struck down the mandatory minimum; in another case involving armed robbery, they upheld the minimum sentence.

That second case involved two men who had both been convicted of armed robbery, which comes with a mandatory minimum sentence.

In the case of Ocean Hilbach, who robbed a convenience store with an illegal sawed-off rifle, the judge found the five-year mandatory sentence to be a violation of his section 12 Charter rights and struck down the law, sentencing him to two years less a day.

In the other case, appealed at the same time, Curtis Zwozdesky was found guilty in an armed robbery but the judge in his case struck down the mandatory minimum sentence and gave him three years behind bars.

While the Supreme Court struck down the mandatory minimum for shooting at a dwelling, it upheld the other one. If you’re confused by this, you aren’t alone.

What makes one mandatory minimum constitutional and not another?

There is a mistaken belief that courts have ruled all mandatory minimums unconstitutional or that they have all been taken off the books by recent reforms by the Trudeau government. Neither of those statements are true, though the courts have struck down some mandatory minimums and several for gun and drug offences were recently removed under Bill C-5.

Writing for the majority, Justice Sheila Martin argued a five-year mandatory minimum for armed robbery was not too harsh a sentence.

“To start, even when committed without a firearm, robbery is a serious offence,” Justice Martin wrote. “Adding a firearm to the equation simply increases the gravity of the offence. Further, mere possession of the firearm is not sufficient for conviction. The offender must use the firearm in the commission of the offence.”

She dismissed arguments from lawyers for both Hilbach and Zwozdesky that the minimum sentence was cruel and unusual punishment.

In the Hills case, Justice Martin said the four-year mandatory minimum for firing the gun into the moving car and the house did violate the Charter protection against cruel and unusual punishment because the sentence was “so excessive as to be incompatible with human dignity.”

When you look at the facts, it’s hard to see how they would arrive at that conclusion. An intoxicated Hills fired into a car and a home that were occupied, people could have easily been killed, while in the armed robberies, no shots were fired.

This case wasn’t decided by the case in front of them though, or by the facts in front of them, but using a judicial trick called “reasonable hypothetical.” In that instance, the court imagined that a young person who fired an airsoft gun at a residence could also face a four-year mandatory minimum.

By finding that scenario unacceptable, the trial judge found the sentencing of Hills to four years unacceptable and struck down the law. The Supreme Court sided with the trial judge on Friday backing up a ridiculous scenario not at all the same as what Hills did in 2014.

Is it any wonder our justice system is a mess with rulings like this?

blilley@postmedia.com