His Majesty the King v. Ocean William Storm Hilbach, et al.
(Alberta) (Criminal) (By Leave)
Canadian charter (Criminal) - Criminal law, Sentencing, Cruel and unusual treatment or punishment (s. 12) - Constitutional law — Charter of Rights and Freedoms — Criminal law — Sentencing — Mandatory minimum — Cruel and unusual treatment or punishment — Constitutionality of mandatory minimum sentences for robbery with a prohibited firearm and robbery with a firearm — Where an offender commits the offence of robbery with a firearm, does the mandatory minimum sentence of four years pursuant to s. 344(1)(a.1) of the Criminal Code infringe s. 12 of the Charter of Rights — Where an offender commits the offence of robbery with a restricted or prohibited firearm, does the mandatory minimum sentence of five years pursuant to s. 344(1)(a)(i) of the Criminal Code infringe s. 12 of the Charter of Rights?
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Both respondents pled guilty to charges stemming from armed robberies of convenient stores. Mr. Hilbach was sentenced to imprisonment of two years less a day for robbery while using a prohibited firearm, contrary to s. 344(1)(a)(i), and having in his possession that prohibited firearm while banned by reason of an order pursuant to s. 109, contrary to s. 117.01(1) of the Code, on each count to be served concurrently. Mr. Zwozdesky was sentenced to three years’ imprisonment for robbery with a firearm and one year imprisonment for the second robbery, to be served consecutively. Both respondents brought a constitutional challenge to the respective mandatory minimum sentences alleging that the sentences breached section 12 of the Charter. Each sentencing judge declared the relevant mandatory minimum sentence to be unconstitutional and of no force and effect pursuant to section 52 of the Constitution Act, 1982. The majority of the Alberta Court of Appeal upheld the lower courts’ declarations of unconstitutionality. The appeal with respect to Mr. Zwozdesky was dismissed. The appeal with respect to Mr. Hilbach was allowed in part, and a sentence of three and one-half years was substituted. Justice Wakeling dissented and would have set aside the respective declarations of unconstitutionality.
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