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SENTENCING - Discharging a firearm with intent to cause bodily harm - Maximum or minimum sentence available

Friday, August 21, 2020 @ 6:12 AM  

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Appeal by the Crown from a declaration the mandatory minimum penalty of four years’ imprisonment in s. 244.2(3)(b) of the Criminal Code was unconstitutional and the three-and-a-half-year sentence imposed on the respondent. After ingesting alcohol and prescription medication, the respondent swung a baseball bat and fired a shot with his rifle in the direction of a vehicle. He then smashed the window of a parked vehicle and shot into an occupied home three times. The respondent pleaded guilty to discharging a firearm, pointing a firearm at the occupant of a vehicle, possession of a firearm without a licence and mischief to property under $5,000. The respondent had no previous criminal record. He complied with bail conditions for five years and maintained steady employment. He was genuinely remorseful. The hypothetical case proposed at trial was a young adult who intentionally discharged an air-powered pistol at a residence.

HELD: Appeal allowed. The sentencing judge erred in concluding the mandatory minimum sentence violated s. 12 of the Canadian Charter of Rights and Freedoms (Charter). The declaration of invalidity was set aside. The sentence for the discharging a firearm offence was increased. The remaining custodial portion of the respondent’s sentence was stayed. Three concurring judgments were provided. Per Justice Antonio: Psychological and social harm was inherent in the reckless use of a firearm, even where the risk of physical harm was somewhat reduced. The mandatory minimum penalty was not grossly disproportionate for the reasonable hypothetical proposed. A fit sentence that gave effect to general deterrence and denunciation while recognizing the respondent’s mitigating factors was four years’ imprisonment. Per Wakeling: There was no principled basis for striking down the mandatory minimum sentence based on a hypothetical offender. A fit sentence for the respondent was 5.9 years’ imprisonment. The offender’s conduct fell within the most egregious subset of s. 244.2(1) offences. Sentence: time served; DNA order; 10-year firearms prohibition; restitution order — Criminal Code, ss. 87(1), 91(1), 244.2(3)(a), 430(1)(a).

R. v. Hills, [2020] A.J. No. 740, Alberta Court of Appeal, B.K. O'Ferrall, T.W. Wakeling and J. Antonio JJ.A., July 10, 2020. Digest No. TLD-August172020010