Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
R v Hilbach  SCC 3 (27 January 2023)
Unsuccessful appeal from Alberta CA – On June 9, 2017, 19-year old H and 13-year-old accomplice robbed convenience store with unloaded sawed-off rifle - With face concealed, H pointed rifle at two employees and demanded cash – Accomplice punched one employee and kicked other – Left with $290 in lottery tickets and apprehended shortly after – H on probation, subject to firearms prohibition order, having been sentenced for several other offences three months earlier –
H pleaded guilty to robbery using prohibited firearm contrary to section 344(1)(a)(i) Criminal Code – H challenged five-year mandatory minimum sentence under section 12 Canadian Charter of Rights and Freedoms – Section 12 Charter guaranteed right not to be subjected to cruel and unusual punishment – H said section 344(1)(a)(i) grossly disproportionate to him as Indigenous person and member of Ermineskin Cree Nation – Before sentencing H filed report indicating family members attended residential schools, struggled with addictions to alcohol or other substances, and suffered financial difficulties – Judge said mandatory minimum sentence violated section 12 – Sentenced H to two years less a day –
On September 13, 2016, in an unrelated case, Z and two masked accomplices robbed convenience store – One accomplice pushed employee, pointed sawed-off shotgun at her, and demanded cash – Shot was fired into shelf – Z never entered store during robbery, but drove accomplices to and from store –
Z pleaded guilty to robbery with firearm contrary to section 344(1)(a.1) Criminal Code – At time, law imposed mandatory minimum sentence of four years in prison – Z challenged mandatory minimum sentence under section 12 Charter – Judge said mandatory minimum sentence not grossly disproportionate – Sentenced Z to three years’ imprisonment – However, she concluded mandatory minimum would be grossly disproportionate in reasonably foreseeable hypothetical scenarios and declared law of no force or effect –
Alberta CA heard cases together and dismissed appeals – Also added one year to H’s sentence – Did not change Z’s sentence – Crown appealed both cases to SC –
SC majority allowed appeals – Said mandatory minimum sentences for Z and H did not constitute cruel and unusual punishment – Applied framework set out in companion appeal Hills appeal (see below) on challenges to constitutionality of mandatory minimum sentence under section 12 Charter – Regarding H, added section 12 analysis made it mandatory for judges to consider Indigenous offenders’ unique situation when sentencing – Appeals allowed.
R v Hills [2023 SCC 2 (27 January 2023)
Successful appeal from Alberta CA - On May 6, 2014, H consumed prescription medication and alcohol – Intoxicated, later left home with baseball bat and loaded big game hunting rifle – Swung bat at passing car and then fire shot at it – Driver called 9-1-1 – Before police arrived, H smashed unoccupied car’s windows then approached house – He fired round that went through living room window and wall into computer room before it stopped in drywall stud and bookcase –
Couple and their children in house – Father called 9-1-1, then went to basement with family where they waited for police to arrive – Police discovered several rounds penetrated walls and windows, into places where someone could have been hit –
Following preliminary inquiry, H pleaded guilty to four offences, including discharging firearm into or at a house contrary to section 244.2(1)(a) Criminal Code – At time, offence carried four-year mandatory minimum sentence set out in section 244.2(3)(b) – H challenged sentence under section 12 Canadian Charter of Rights and Freedoms which guarantees right not to be subjected to cruel and unusual punishment – Said mandatory minimum sentence grossly disproportionate and therefore constituted cruel and unusual punishment – Challenge relied on hypothetical scenario, where young person intentionally discharged air-powered pistol or rifle at residence that was incapable of perforating walls –
Sentencing judge found said sentence in hypothetical scenario grossly disproportionate – Sentenced H to three and a half years prison – Crown appealed – Alberta CA allowed appeal on both finding and sentence – Restored mandatory minimum sentence and sentenced H to four years prison – H appealed to SC –
SC majority allowed appeal – Said four-year mandatory minimum sentence set out in section 244.2(3)(b) grossly disproportionate in hypothetical scenario H raised – Infringed section 12 Charter and s 1 could not save it – Declared of no force or effect and declaration applied retroactively – Reinstated three-and-a-half-year sentence –
Evidence showed that many air-powered rifles, such as paintball guns, were considered “firearms”, even though they could not perforate typical residence walls – Majority said provision applied to wide spectrum of conduct, ranging from acts that presented little danger to public, to those that posed grave risk – Also reasonably foreseeable was that young person could intentionally discharge such “firearm” into home – As Justice Martin said for majority, “it would shock the conscience of Canadians to learn that an offender can receive four years of imprisonment for firing a paintball gun at a home” –
Majority further developed framework applying to challenges to constitutionality of mandatory minimum sentence under section 12 Charter – To determine if mandatory minimum sentence grossly disproportionate, court had to take two steps – First, court must determine fit and proportionate sentence for offence, in line with Criminal Code sentencing objectives and principles – Court must then decide if mandatory sentence grossly disproportionate to fit and proportionate sentence – Outcome depended on scope and reach of offence, effects of punishment on offender, as well as penalty and its objectives – Appeal allowed.
Barton and ors v Morris and anor  UKSC 3 (25 January 2023)
Foxpace Limited (Foxpace) owned property known as Nash House in London – Appeal concerned oral agreement between Foxpace and B about Nash House – HC said Foxpace agreed to pay B £1.2 million if he introduced purchaser for Nash House who bought it for £6.5 million – £1.2 million represented deposits and other expenses B lost on two previous attempts to buy Nash House –
Barton introduced Western UK (Acton) Limited (Western) to Foxpace – Documents drawn up for sale of Nash House to Western for £6.55 million – However, it came to light that Nash House fell within area safeguarded for purpose of constructing HS2 rail link – Consequently, Western acquired Nash House for £6 million plus VAT – Oral contract between Foxpace and B did not address what would happen if Nash House sold for anything less than £6.5 million – Foxpace said no contractual obligation to pay anything to B – B claimed for reasonable value of his services –
First instance judge said B not entitled to any payment – In case he was wrong, judge assessed reasonable fee for B’s services as being £435,000 – CA allowed B’s appeal – Said entitled to reasonable fee – M appealed to SC –
SC majority allowed appeal – Said Foxpace could be contractually bound to pay fee to B in three different ways: (1) an express term; (2) a term implied on facts; and (3) a term implied by law – Alternatively, Foxpace could be obliged to pay a fee to B under law of unjust enrichment – Majority said none of these avenues led to conclusion that B should be paid fee – Appeal allowed.