New Zealand Law Society - Courts roundup 26 January - 1 February 2023

Courts roundup 26 January - 1 February 2023

Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.

Supreme Court NZLS 2017 06 13

Supreme Court of Canada

Constitutional law, Canadian Charter, criminal law, sentencing

R v Hilbach [2023] 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.

Constitutional law, Canadian Charter, criminal law, sentencing

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.

United Kingdom Supreme Court

Oral contract, terms of

Barton and ors v Morris and anor [2022] 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.


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