R v Hilbach (Bonus)

On June 9, 2017, a 19-year-old Mr. Ocean Storm Hilbach covered his face with his shirt and entered an Edmonton Convenience store with a sawed-off rifle, pointing it at two employees and demanding cash. He and his 13-year-old accomplice escaped with $290 in lottery tickets. Mr. Hilbach plead guilty and was convicted of robbery with a prohibited firearm, contrary to section 344(1)(a)(i) of the Criminal code.

In September of 2016, a 53-year-old Mr. Curtis Zwozdesky drove the getaway vehicle for his accomplices who robbed two convenience stores. Mr. Zwozdesky plead guilty and was convicted as a party to the offences of robbery, and robbery with a firearm contrary to section 344(1)(a.1) and 344(1)(b) of the Criminal Code.

After pleading guilty, both Mr. Hilbach and Mr. Zwozdesky filed charter applications seeking declarations that the mandatory minimums of 5-years and 4-years under section 344 were of no force or effect, as they amounted to cruel and unusual punishment contrary to section 12 of the Charter.

Both sentencing judges agreed and granted the declarations of unconstitutionality.

In Mr. Hilbach’s case the sentencing judge relied on a Gladue report which outlined a family history of residential school system attendance, violence, abuse, chronic unemployment, and substance abuse. Mr. Hilbach was sentenced to 2-years less 1-day, well below the mandatory minimum of 5 years for a first offence.

In Mr. Zwozdesky’s case, the sentencing Judge took into consideration the individual circumstances of the offender, including a lack of a criminal record, late age, health issues and substance abuse. Nevertheless, the sentencing Judge found that the mandatory minimum was appropriate for the offences before the Court and Mr. Zwozdesky received a sentence of 4-years for both offences.

The Crown appealed both sentencing decisions, arguing that the mandatory minimums are consistent with the provisions of the Charter and accordingly, the sentences imposed were unfit. The appeals of Mr. Hilbach and Mr. Zwozdesky were heard together by the Court of Appeal of Alberta.

A majority of the Court of Appeal of Alberta agreed with the sentencing Judges and found that the mandatory minimum sentences set out in section 344(1)(a)(i) and section 344(a.1) were unconstitutional and of no force or effect. The Court of Appeal of Alberta dismissed the appeal against Mr. Zwozdesky’s sentence but would have increased Mr. Hilbachs sentence to 3.5-years. Justice Wakeling dissented and would have allowed the crown appeals and set aside the declarations of unconstitutionality.

The Crown appealed to the Supreme Court of Canada and leave was granted.