When the difference between a fit sentence and a mandatory minimum is grossly disproportionate, it violates human dignity and amounts to cruel and unusual punishment thus becoming unconstitutional.

1. The underlying purpose of section 12 of the Canadian Charter of Rights and Freedoms (the Charter) was to prevent the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment. It was meant to protect human dignity and respect the inherent worth of individuals. Section 12 of the charter protected individuals against imposition of punishment which was cruel and unusual because, by their very nature, they were intrinsically incompatible with human dignity.
2. The first stage of inquiry on section 12 of the Charter involved the individualized process of determining what a fit and proportionate sentence was for the particular or representative offender under consideration using the general sentencing principles set out by parliament.
3. The second stage required a contextual comparison between the fit sentence and the impugned mandatory minimum to see whether the latter complied with the widely worded right set out in section 12 of the Charter. Courts ought to consider the uniform and mandatory minimum sentence parliament had selected for particular crimes. A mandatory minimum was a penal provision of a very different type in which parliament had intentionally removed discretion and had instead given priority to certainty, deterrence, denunciation and sometimes removing of the offender from the society. It had not only specified a minimum penalty, it anticipated that the minimum penalty would apply automatically regardless of how the crime was committed or by whom. The same punishment or period of incarceration applied both to the full breadth of the conduct criminalized to everyone who committed it no matter how diversely situated.
4. When comparing the sentence produced from the individual process under general sentencing principles with the uniform standard under the mandatory minimum, some mismatch or disproportion was very likely. Mandatory minimum sentences were not the norm in the country. They departed from the general principles of sentencing expressed in the Criminal Code, 1985 (Criminal Code), the case law and in the literature on sentencing. In particular, they detracted from the principle of proportionality which parliament had expressed as the fundamental principle of sentencing.
5. It was not the existence of some disproportion which offended the grossly disproportionate requirement of section 12 of the Charter. The analysis of the grossly disproportionate standard posed the question, whether the difference between the fit sentence and the mandatory minimum sentence was so grossly disproportionate that it violated human dignity and amounted to cruel and unusual punishment. The challenged penalty could be unfit, excessive and disproportionate, but it only crossed the constitutional line when it became grossly disproportionate.
6. Assessing gross disproportionality could be more challenging in certain circumstances. That was because sometimes the difference between stage one and two of inquiry on section 12 of the Charter would involve penalties which were of different type or fell within distinct categories. For example, there could be cases where a fine would be a fit sentence but the impugned provision imposed imprisonment, or cases in which a discharge or conditional sentence would be fit but instead a custodial sentence was mandated by law.
7. The disparity in such cases was more readily apparent because the comparison involved two different types of punishment and the effects were often more extreme. Other cases could involve a comparison between the term of a proportionate period of incarceration and the term of imprisonment contained in the mandatory minimum. In such cases the type of punishment was the same. Such cases required the court to engage in normative reasoning and make a judgment. When a sentence was too long it became grossly disproportionate.
8. When the constitutional challenge to a mandatory minimum proceeded on the basis of the particular circumstances of the individual offender charged and convicted, the task for the court at stage one of section 12 of the Charter inquiry was to determine a fit and proportionate sentence for the particular offender before the court.
9. To assist in evaluating what constituted a just and appropriate punishment in a given case, parliament enacted section 718 of the Criminal Code or section 38 of the Youth Criminal Justice Act. Where appropriate, proper consideration was to be given to various objectives such as denunciation, deterrence, rehabilitation, providing reparations for harm done to victims, promoting a sense of responsibility and, when necessary, separating offenders from society. No sentencing objective was to be applied to the exclusion of all others. Courts were to also consider any aggravating and mitigating circumstances relating to the offence or to the offender.
10. Proportionality was a central tenet of sentencing with roots that predated its recognition as a fundamental principle of sentencing in section 718 of the Criminal Code. Whatever weight a court wished to accord to the objectives for sentencing prescribed in section 718 of the Criminal Code, the resulting sentence ought to respect the fundamental principle of proportionality.
11. The purpose of proportionality was founded in fairness and justice. It was to prevent unjust punishment for the sake of common good and it served as a limiting function to ensure that there was justice for the offender. As a sine qua nun of a just sanction, the concept expressed that the amount of punishment which an offender received ought to be proportionate to the gravity of the offence and the offender’s moral blameworthiness.
12. The gravity of the offence referred to the seriousness of the offence in a general sense and was reflected in the potential penalty imposed by parliament and in any specific features of the commission of the crime. The gravity of the offence was to be measured by taking into account the consequences of the offender’s action on victims and public safety, and the physical and psychological harm that resulted from the offence. In some cases where there was bias, prejudice or hatred, the motivation of the offender could also be relevant. The offender’s moral culpability or degree of responsibility ought to be measured by gauging the essential substantive elements of the offence including the offence’s mens rea, the offender’s conduct in the commission of the offence, the offender’s motive for committing the offence, and aspects of the offender’s background that increased or decreased the offender’s individual responsibility for the crime, including the offender’s personal circumstances and mental capacity.
13. The sentence imposed ought to be commensurate with the responsibility and moral blameworthiness of the offender. The sentence ought to be no greater than the offender’s moral culpability and blameworthiness.
14. Sentencing was a highly individualized and discretionary endeavor. Each sentence was to be custom tailored to match the particular offence, as well as the offender. There was no one size fits all penalty as sentencing was an inherently individualized and profoundly subjective process. The determination of a just and appropriate sentence was a delicate art which attempted to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community.
15. Sentencing was not an exact science. It could be difficult for the sentencing court to select the exact fit punishment as there was often more than one correct sentencing response to a crime. However, that was the burden which the sentencing court confronted daily. At the first stage of inquiry on section 12 of the Charter, while there could be reference to sentencing ranges and starting points for the offence to assist in the determination of the fit penalty, there ought to be no approximation in the final sentence. The key question was what specifically what the fit sentence for the individual offender was.
16. Precision and certainty about the legal penalty was required because one ought to know exactly what punishment was imposed and when it would end. Scrupulously selecting a precise and defined sentence also supported an analytically fair and principled result at the second stage of the inquiry on section 12 of the Charter.
17. With the development of jurisprudence on section 12 of the Charter, the court had consistently accepted that punishments could be impugned not only on the basis that they infringed section 12 of the Charter’s rights of a particular offender but also on the basis that they infringed those of a reasonably foreseeable offender. The court had established the use of a reasonable hypothetical in assessing whether a punishment was grossly disproportionate.
18. Reasonably hypothetical situations had either been expressly used by the court to invalidate sentencing provisions or affirmed as a matter of principle where they were not relied upon. It followed that in cases where the court had struck down mandatory minimum sentences, it had done so on the basis of a reasonable hypothetical offender.
19. Foreclosing the consideration of the reasonably foreseeable impacts of an impugned law would dramatically curtail the reach of the Charter and the ability of the courts to discharge their duty to scrutinize the constitutionality of legislation and maintain the integrity of the constitutional order. Since it was the nature of the law that was in issue and not the claimant’s status, it sufficed for a claimant to allege unconstitutional effects in their case or on third parties. In crafting reasonable hypotheticals, the court was examining the scope of the impugned law and not merely the justice of a particular sentence imposed by a judge at trial. If the only way to challenge an unconstitutional law was on the basis of precise facts before the court, bad laws could remain on the books indefinitely.
20. The effective use of judicial resources also favoured the use of reasonable hypotheticals as they allowed one judge to consider an impugned mandatory minimum from multiple vantage points and they helped reduce the number of challenges that would be heard or in or among jurisdictions. They promoted the rule of law by underscoring how no one was to be convicted or sentenced under an unconstitutional law. Therefore, allowing an accused to employ reasonable hypothetical scenarios was more likely to further the purpose of the Charter and protect citizens from abuse of state power.
21. A reasonable hypothetical scenario needed to be constructed with care. While it could be tempting to allow the word hypothetical to overwhelm, it was the reasonableness of the scenario that ought to be underscored. While earlier case law did not often explain or explore what went into the construction of a reasonable hypothetical, or tended to consider hypotheticals more narrowly and at a higher level of generality, the recent analytical approach permitted more detailed hypotheticals.
22. There was a legitimate concern that the hypotheticals ought to be reasonable. They were not to be far-fetched or marginally imaginable cases, nor were they to be remote extreme examples.
23. What was to be considered was how the provision impacted other persons who could reasonably be caught by it and the reasonably foreseeable situations in which the law could apply.
24. Given mandatory sentencing provisions and modern realities, there was no principled reason why race and indigeneity could not be relevant legal personal characteristics for reasonable hypothetical scenarios. Section 718.2(e) of the Criminal Code was mandatory and was enacted to address the over incarceration of indigenous people and their disproportionate representation in Canada’s criminal justice system. The unfortunate truth was that Indigeneity was an offender characteristic that was more than theoretically possible. Indigenous offenders were not only reasonably foreseeable but also the statistics over the years demonstrated that indigenous people were vastly overrepresented before the courts. The same was true for Blacks and other racialized offenders who were overrepresented in the criminal justice system and whose experiences of historic and systemic disadvantage could reduce their moral blameworthiness.
25. Including immutable personal characteristics in hypothetical scenarios strengthened the analytical device by helping courts explore the reach of the mandatory penalty. Individuals with reduced culpability could find themselves subject to mandatory minimum penalties. It was possible parliament set penalties with a certain offender in mind without fulsome consideration of how the mandatory penalty could apply to offenders with reduced moral blameworthiness due to their disadvantaged circumstances, including marginalization or systemic discrimination.
26. Reasonable hypotheticals were best tested through the rigour of the adversarial process. There were benefits to providing parties with the opportunity to submit on who constituted a realistic and reasonably foreseeable offender. In that way, parties could help the court determine what type of hypothetical was reasonable in the circumstances. However, while testing the reasonable hypothetical through the adversarial process was to be encouraged, it was not mandatory in the sense that its absence presented a reviewable error.
27. The same general sentencing principles applied when fixing a sentence for a reasonably foreseeable offender. As with cases which involved actual offenders, courts ought to fix as narrowly defined a sentence as possible for a reasonably foreseeable offender. A court, however, could find it somewhat more difficult to fix a specific sentence for a reasonably foreseeable offender, given that hypotheticals were advanced without evidence or detailed facts. In fixing the fit sentence for reasonably foreseeable offenders, some latitude could be necessary. While the court could not be able to necessarily arrive at a single figure, broad statements were not very helpful either. Fixing a sentence for reasonably foreseeable offenders required essentially the same approach that courts took in the daily tasks of sentencing offenders.
28. Setting too wide a scope for what would be a fit sentence could skew the analysis and distort the gross disproportionality assessment by unfairly reducing the disparity between the sentence imposed and the mandatory minimum. Since the purpose of the reasonable hypothetical was to test the limits of the scope of application of a mandatory minimum, the lowest fit sentence that was reasonably foreseeable would figure prominently in the assessment. The large margin of appreciation embedded into the gross disproportionality standard meant there was no need to build flexibility into the fit and proportionate sentence.
29. Imprisonment was the harshest form of punishment in Canada. Apart from death, imprisonment was the most severe sentence imposed by the law. Incarceration entailed not only a complete removal of an offender’s liberty, but also had a ripple effect that touched nearly every aspect of the offender’s life including physical and mental health, employability children and community.
30. Since the purpose of section 12 of the Charter was to safeguard human dignity, it protected against grossly disproportionate term of imprisonment. It ensured that offenders did not suffer completely unwarranted or utterly undeserved punishments including grossly disproportionate and abusive periods of incarceration. Given the potentially devastating impacts of incarceration on an offender, its heavy costs could not be imposed without limit, scrutiny or justification. There was no reason for the court to alter course and remove grossly excessive imprisonment from the reach of section 12 of the Charter.
31. When comparing a mandatory minimum sentence to the fit sentence, the focus ought to be in the sentence itself. Courts ought not to consider parole eligibility as a factor reducing the actual impact of the impugned sentence because the possibility of parole could not cure a grossly disproportionate sentence.
32. Factoring the possibility of parole into the comparison inappropriately tilted away from what was to be an apple to apples comparison between sentences and introduced unwarranted speculations. Parole was a statutory privilege rather than a right that turned on a discretionary decision of the parole board. Therefore, there was no guarantee that offenders would be granted parole when their ineligibility period expired. Parole also involved a process that was distinct and independent from the sentencing process. It was the role of the court and not that of the parole board, to ensure that a sentence imposed was not grossly disproportionate.
33. For a punishment to offend section 12 of the Charter, it ought to be first, different from and disproportionate to a fit and proportionate sentence. The first part of the comparative task was to articulate what, if any, differences existed between a fit sentence, identified at stage one, and a mandatory minimum. Thereafter, courts were to gage the effect of the disparity.
34. Whether a sentence outraged standards of decency, was abhorrent or intolerable, shocked the conscious or undermined the human dignity, was a normative question. Such a conclusion did not turn on the court’s opinion of whether a majority of the Canadians supported the penalty. Rather, the views of Canadian society on the appropriate sentence were to be assessed through the values and objectives that underlay the sentencing and Charter jurisprudence.
35. In every section 12 of the Charter case, the court had used gross disproportionality as the applicable standard and there was no reason to upset well settled law. It represented a workable and balanced principle, well grounded in human dignity and basic sentencing norms. It also had the benefit of being a balanced standard which recognized parliament’s authority to pursue sentencing objectives and options which did not amount to cruel and unusual punishment. A mandatory term of imprisonment ought not to be grossly disproportionate to what would have otherwise been a fit sentence in order to violate section 12 of the Charter.
36. The three crucial components that were to be assessed when considering the validity or vulnerability of mandatory minimum sentences were:
    1. The scope and reach of the offence;
    2. The effects of the penalty on the offender; and
    3. The penalty, including the balance struck by its objectives.
37. Those components had particular relevance to mandatory minimum sentences. In selecting mandatory minimums as a sentencing tool, parliament had decided to make the sentence uniform across a range of circumstances and had chosen to remove the constitutional safety valve of judicial discretion to deal with individual cases. It had defined the offence subject to a particular minimum sentence and set its nature, gravity, scope, and reach. It had determined who would be subject to the mandatory minimum whether explicitly or implicitly by how the offence was defined or the penalty was imposed. It had prescribed the penalty or sentence for each mandatory minimum it imposed.
38. A court was to assess to what extent the offence’s mens rea and actus reus captured a range of conduct as well as degree of variation in the offence’s gravity and the offender’s culpability. In characterizing the offence’s scope, a court could consider whether the offence necessarily involved harm to a person or simply the risk of harm, whether there were ways of committing the offence that posed relatively little danger, and to what degree the offence’s mens rea required an elevated degree of culpability of the offender. In characterizing the breadth of the offence, one was also to remember that section 12 of the Charter was not so exacting a standard that it required a sentence to be perfectly tailored to every moral nuance of an offender’s circumstance.
39. The severity of the mandatory minimum sentence’s effect on the people subject to it was to be taken into account when assessing the degree to which the sentence was disproportionate. In measuring the overall impact of the punishment on the actual or reasonably foreseeable offender, courts were to aim at identifying the precise harm associated with the punishment. That called for an inquiry into the effects that the impugned punishment could have on the actual or reasonably foreseeable offender both generally and based on their specific characteristics and qualities. That component was central to the underlying purpose of section 12 of the Charter. If the effect of a mandatory punishment was to inflict mental pain and suffering on an offender such that the offender’s dignity was undermined, the penalty could not stand.
40. A court ought to certainly consider the additional period of imprisonment imposed by the mandatory minimum. Given the profound impact of imprisonment, the level and length of the sentence was of great personal and societal importance, when quantitatively comparing the proportionate term of imprisonment to that which was mandated by the mandatory minimum sentence provisions, it was important to keep in mind that the assessment was not merely some abstract mathematical calculation, but involved precious time that an offender could be unwarrantedly (and possibly unconstitutionally) spending in prison.
41. Courts were to consider the effect of a sentence on the particular offender. The principle of proportionality implied that where the impact of imprisonment was greater on a particular offender, a reduction in sentence could be appropriate. For that reason, courts had reduced sentences to reflect the comparatively harsher experience of imprisonment for certain offenders, like offenders in law enforcement, for those suffering disabilities or for those whose experience of prison would be harsher due to systemic racism. To ensure that the severity of a mandatory minimum sentence was appropriately characterized under section 12 of the Charter, it was necessary to consider the impact of incarceration in light of those individualized considerations.
42. The effects of a sentence were not measured in numbers alone. They were often a composite of many factors and included the sentence’s nature and the conditions under which it was applied. A sentence of 20 years for a first offence against property would be grossly disproportionate, but so would be 3 months of imprisonment if the prison authority decided it would be served in solitary confinement. When presented with sufficient evidentiary record, courts ought to consider how the conditions of confinement would affect an individual offender.
43. In relation to the punishment imposed under the mandatory minimum, parliament set the length of the minimum sentence based on its sentencing objectives. Similarly, when assessing gross disproportion, courts assessed the severity of the punishment mandated by parliament to determine whether and to what extent the minimum sentence went beyond what was necessary to achieve parliament’s sentencing objectives relevant to the offence while having regard to the legitimate purposes of punishment and the adequacy of possible alternatives.
44. Denunciation and deterrence, both general and specific, were valid sentencing principles. Denunciatory sentences expressed a collective statement that the offender’s conduct ought to be punished for encroaching on the society’s basic code of values. The need for denunciation was closely tied to the gravity of the offence. Where the consequences of the offence clearly offended Canadian’s basic code of values and called for a strong condemnation, the court had afforded parliament greater deference in enacting a mandatory minimum. Likewise, general deterrence could support a stiffer sentence within a range of sentences which were short of cruel and unusual punishment. General deterrence could not however, justify a mandatory minimum alone. No person could be made to suffer a sentence that was grossly disproportionate to what they deserved in order to deter others. It could be unnecessary to punish a small offender in order to deter the serious offender.
45. While rehabilitation had no standalone constitutional status, the strong connection between the objective of rehabilitation and human dignity was that rehabilitation reflected the conviction that all individuals carried within themselves the capacity to reform and re-enter society.
46. The objective was not to have rehabilitation prevail over other sentencing objectives but rather to ensure it remained a component in a penal system based respect for the inherent dignity of every individual. It followed then, that in order to be compatible with human dignity, and therefore respect section 12 of the Charter, punishment or sentencing was to take rehabilitation into account.
47. Courts were to evaluate the punishment in light of the principles of parity and proportionality. As an expression of proportionality, parity assisted courts in fixing a proportionate sentence. Where a mandatory minimum imposed a relatively shorter term of imprisonment, the mandatory minimum would still be grossly disproportionate if it represented an intolerable departure from the proportionate sentence. That would correspond to circumstances where even the smallest difference between the proportionate sentence and the mandatory minimum would outrage the standards of decency and shock the conscious of Canadians.
48. It was reasonably foreseeable that a young person could intentionally discharge a firearm into or at a residence, knowing that or being reckless as to whether a person was present, and the firearm discharged was an air-powered pistol or rifle that was classified as a firearm under section 2 of the Criminal Code but was incapable of perforating a typical residential wall.
49. There was no need to set out when a reviewing court could come to its own conclusion about a fit sentence for reasonably foreseeable offenders. A fit sentence for the hypothetical offender would involve probation and certainly no such offender would receive a four year penitentiary term or a sentence approaching anywhere near that. The gravity of the offence and the culpability of the offender were low in that scenario, focusing on the offences consequences and the offender’s mens rea. The consequences for public safety were relatively low in that scenario. The actus reus for that offence did not require any person to be present at the place where the firearm was discharged. Even if another person was present, the expert evidence established the minimal danger posed by the offender’s actions given the firearms power was substantially reduced.
50. Youth was a mitigating factor in sentencing. The hypothetical scenario was an example of criminalized conduct that could reflect a lack of guidance or supervision more than criminal intent on the part of the offender. In the context of youthful offenders, the principles of general deterrence and denunciation ought to come secondary to that of rehabilitation.
51. Since the gravity of the offence and the culpability of the offender in that scenario were low, and the youthfulness of the offender was a mitigating factor, the fit and proportionate sentence was a suspended sentence of up to 12 months probation.
52. Based on that reasonable hypothetical, the four-year mandatory minimum term of imprisonment imposed by section 244.2(3)(b) of the Criminal Code was grossly disproportionate. It would shock the conscious of Canadians to learn that an offender could receive four years of imprisonment for an activity that posed more or less the same risk to the public as throwing a stone at the window of a residential home.
53. A four-year custodial sentence was so excessive as to be significantly out of sync with sentencing norms and went far beyond what was necessary for parliament to achieve its sentencing objectives for that offence. A four-year minimum term of imprisonment for a youthful offender who short a paintball gun at a residence was draconian. It was a sentence that far exceeded what was necessary to protect the public, condemn the offender’s behavior, or discourage others from engaging in similar conduct. The need for denunciation was closely tied to the gravity of the offence.
54. Section 244.2(3)(b) of the Criminal Code was grossly disproportionate. It applied an offence that captured a wide spectrum of conduct, ranging from acts that presented little danger to the public to those that posed a grave risk. Its effect at the low end of the spectrum was severe. Denunciation and deterrence alone could not support such a result. The punishment showed a complete disregard for sentencing norms and the mandatory prison term would have significant deleterious effects on a youthful offender.
55. The trial court did not err in finding that section 244.2(3)(b) of the Criminal Code was unconstitutional. There was no basis for interfering with the sentence imposed on the appellant by the trial court. Parties did not argue that the trial court’s sentence was demonstrably unfit nor that it made any other error in principle which impacted the sentence.
56. Section 244.2(3)(b) of the Criminal Code infringed on section 12 of the Charter and the infringement was not justified under section 1 of the Charter. The mandatory minimum sentence set out in that provision was of no force or effect under section 52 (1) of the Constitution Act, 1982.

1. Section 244.2(1)(a) of the Criminal Code had a double mens rea requirement. First, the intentional discharge of a firearm, and second, knowledge of or recklessness as to the presence of occupants. An offender could not know or even think that nobody was around or be thoughtless as to whether any one was present, when he intentionally discharged a firearm into or at a building or other place. Rather, he ought to know that it was occupied or be reckless, which required knowledge of a danger or risk and persistence in a course of conduct which created a risk that the prohibited result would occur. The culpability and recklessness was justified by consciousness of risk and proceeding in the face of it. At minimum, an offender under section 244.2(1)(a) of the Criminal Code was to have knowledge of the occupants and nonetheless proceed in the face of that risk, to intentionally shoot into or at a building or other place.
2. The double mens rea required under section 244.2(1)(a) of the Criminal Code was also to be interpreted in light of the objects and purpose of that section. Through section 244.2(1) of the Criminal Code, parliament intended to capture the discharge of firearms in situations which jeopardized the lives or safety of others. It did so by enacting two offenses. First, where an offender intentionally shot into or at a building or other place, knowing of or being reckless as to the presence of occupants, and second, in other situations where an offender intentionally shot while being reckless as to the lives or safety of others. Section 244.2(1)(a) of the Criminal Code was an enumerated example of a shooting into a building or other place, with knowledge of or recklessness as to the presence of occupants which jeopardized lives and safety of others.
3. It would be nonsensical and contrary to parliament’s expressly stated intent to interpret section 244.2(1)(a) of the Criminal Code to apply to shootings where an offender did not, at minimum, subjectively and recklessly disregard the possibility of risks to the lives and safety of others. Knowledge of or recklessness as to the mere presence of occupants was insufficient to attract liability. Rather, both prongs of section 244.2(1) of the Criminal Code were intended to target shootings in which the offender had turned his mind to the fact that he was placing others at risk.
4. Section 244.2(1) of the Criminal Code ought not to be interpreted to capture a person firing a paintball gun at a house when nobody was around. That broad interpretation of the scope of the conduct which fell within section 244.2(1) of the Criminal Code was divorced from the legislative context and the object and purpose of the provision. Interpreted correctly, the double mens rea requirement of section 244.2(1)(a) of the criminal Code captured only offenders who intentionally discharged a firearm into or at a building or other place with knowledge or recklessness as to the presence of occupants, and thus, who had turned their mind to the fact that shooting the firearm could put the lives or safety of others at a risk. That interpretation gave effect to the presumption of constitutional compliance and the real intention of parliament which explicitly targeted offenders with a subjective appreciation of the fact that discharging their firearm would jeopardize lives and safety.
5. The hypothetical case presented by the appellant was that of a young person described intentionally discharging an air-powered pistol or rifle at a residence. That scenario did not involve the kind of conduct that the law could reasonably be expected to catch. That was because, first, the young offender described by the appellant was crafted primarily on the offence’s actus reus. There was no sufficient basis on which to conclude that the requisite mens rea would be satisfied. The actus reus on its own could extend to a wide range of conduct including the air-powered pistol or rifle hypothetically framed by the appellant. It was section 244.2(1)(a)’s of the Criminal Code double mens rea requirement that served to limit the scope of conduct properly caught within its ambit. That double mens rea rendered offenders highly culpable and blameworthy.
6. Firing a hunting rifle at a house was very severe and blameworthy conduct irrespective of whether a bullet from that rifle could in fact, go through the wall of a given home. The relevance of a residential home distinction was undercut by the fact that even conventional weapons, including commonly used hunting rifles, could not penetrate typical brick-based walls. While air-powered rifles were undoubtedly less dangerous than conventional firearms, they remained capable of inflicting serious injury or death. Whether certain firearms could in fact penetrate a particular residential wall ought not be the dispositive factor in assessing the constitutionality of section 244.2(1)(a) of the Criminal Code.
7. The mandatory minimum sentences in the Criminal Code did not apply to youth offenders under the Youth Criminal Justice Act, 2002. While age could be a mitigating factor in determining a fit and proportionate sentence and while rehabilitation remained an important principle in sentencing, the focus on youthful offenders ought to be placed in context.
8. Intentionally shooting any firearm which was capable of causing serious injury or death into or at a building or other place, with knowledge of or recklessness as to the presence of occupants, was highly dangerous and culpable conduct. In such cases, the absence of serious injury or death would just be a matter of luck. An offence committed under section 244.2(1)(a), of the Criminal Code properly interpreted, could not be at most, a minor form of mischief or that the offence otherwise posed little or no danger given the requisite mens rea and the gravity of the conduct.
9. Mere probation was not a fit and proportionate sentence in a reasonably foreseeable application of section 244.2(1)(a), of the Criminal Code.
10. In the case of hypothetical offenders, courts needed not, and could not possibly fix a sentence or range at a specific point. Rather, courts were to consider, even implicitly the rough scale of the appropriate sentence. The inquiry into cases that section 244.2(1)(a), of the Criminal Code could reasonably be expected to capture ought to be grounded in judicial experience and common sense. That excluded the use of far-fetched or remote examples and the use of personal characteristics to construct the innocent and sympathetic case imaginable.
11. On a proper interpretation of the impugned provision, the court had difficulties conceiving of a reasonably foreseeable case in which less than a multi-year sentence would be fit and proportionate based on the gravity of the offence and the degree of responsibility of the offender under section 718.1 of the Criminal Code. The fundamental principle of sentencing, proportionality, required a sentence that was severe enough to denounce the offence but that did not exceed what was just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence.
12. A sentence of two years was to be properly considered at the low end of the range of fit and proportionate sentences in reasonably foreseeable applications of section 244.2(1)(a) of the Criminal Code.
13. The minimum four-year sentence imposed by section 244.2(3)(b) of the Criminal Code would at the floor of the range of fit and proportionate sentences, double the period of incarceration in reasonably foreseeable cases. The effects of that were not to be minimized and could be devastating. However, the court could not conclude, as a constitutional matter, that additional period of imprisonment would meet the high threshold established by the court for cruel and unusual punishment.
14. It was only on rare and unique occasions that a court would find, and had found, a sentence to be so grossly disproportionate that it violated section 12 of the Charter. Court ought to properly show deference to parliament’s policy decisions with respect to sentencing.
15. A four-year sentence could not be said to be so excessive as to be incompatible with human dignity or otherwise outrage standards of decency. The section 12 of the Charter’s threshold was necessarily high in cases where the issue was the length of the punishment, in contrast to punishments which were cruel and unusual by nature, such as torture or castration. Parliament was within its rights to emphasize the objectives of deterrence and denunciation in the context of firearms offences. A firearm presented the ultimate threat of death to those in its presence. The court had repeatedly affirmed the denunciatory role of minimum sentences for conduct which offended the society’s basic code of values. The intentional shooting of such a life-threatening firearm into or at a building or other place, with knowledge of or recklessness as to the presence of occupants, was a clear example of conduct which offended Canadian society’s basic code of values.
16. Section 244.2(1)(a) of the Criminal Code did not go beyond that which was necessary to achieve a valid penal purpose. That section only captured conduct that in all circumstances would be highly blameworthy and antithetical to the peace of the community.
17. The hypothetical scenario presented by the appellant had not resulted in a conviction under section 244.2(1)(a) of the Criminal Code, nor would it, in the court’s interpretation of the offence, unless the accused had turned his mind to the fact that discharging the firearm would jeopardize the lives or safety of others. The hypothetical was more imaginary than real and was not a sound basis on which to nullify parliament’s considered response to a serious and complex issue.

1. The judgment of the Alberta Court of Appeal was set aside.
2. The mandatory minimum sentence set out in section 244.2(3)(b) of the Criminal Code was grossly disproportionate as it infringed section 12 of the Charter and could not be saved by section 1 of the Charter.
3. Section 244.2(3)(b) of the Criminal Code was declared of no force or effect pursuant to section 52 (1) of the Constitution Act, 1982 and the declaration applied retroactively.
4. The three-and-a-half-year sentence imposed on the appellant by the trial court was reinstated.

 Such sentences, in my view, do not permit the Court to consider the peculiar circumstances of the case in order to arrive at an appropriate sentence informed by those circumstances as the Court is deprived of the discretion to consider whether a lesser punishment would be more appropriate in the circumstances. In those circumstances, it is my view that such provisions do not meet the constitutional dictates.

 However, to treat offences as the same notwithstanding the aggravating circumstances, clearly violates the right to dignity as the offenders are thereby treated as a bunch rather than as individuals.

 The principle governing imposition of punishment would depend upon the facts and circumstances of each case. An offence which affects the morale of the society should be severely dealt with.[Also, while exercising its discretion in sentencing, the court should bear in mind the principles of proportionality, deterrence and rehabilitation and as part of the proportionality analysis, mitigating and aggravating factors should also be considered.