R. v. Habib, 2024 ONCA 830
[21] Judges owe an “elevated duty of procedural fairness” to every litigant. See Fontaine v. Canada (Attorney General), 2018 ONCA 1023, at para. 21. This duty originated and applies with greatest force in criminal law and at sentencing because the stakes to the defendant and society are the highest. See Gardiner, at pp. 414-415; Supermarchés Jean Labrecque Inc. v. Flamand, 1987 CanLII 19 (SCC), [1987] 2 S.C.R. 219, at pp. 233 and 237; and A. (L.L.) v. B. (A.), 1995 CanLII 52 (SCC), [1995] 4 S.C.R. 536, at para. 27. Honouring this duty ensures better decision-making, which increases the likelihood that everyone involved feels fairly treated and causes them to accept the decision’s legitimacy, while also strengthening public confidence in the justice system, the rule of law, and our democratic system of government. See Guy Régimbald, Canadian Administrative Law, 3rd ed. (Toronto: LexisNexis Canada Inc., 2021), at pp. 267-270.
[22] Sentencing judges observe the duty of procedural fairness by respecting criminal defendants’ rights to be heard. Parliament has directed courts to honour this human right whenever they apply the Criminal Code, R.S.C. 1985, c. C-46. See Canadian Bill of Rights, S.C. 1960, c. 44, s. 2(e); Lowry and Lepper v. The Queen, 1972 CanLII 171 (SCC), [1974] S.C.R. 195, at pp. 200-202. This right entitles defendants to know the case against them and respond to it by making submissions, calling evidence, and challenging any evidence against them. See R. v. Flett, 2015 MBCA 59, 319 Man. R. (2d) 194, at para. 14; Lowry and Lepper, at p. 204. It bars sentencing judges from finding aggravating facts that the Crown did not advance and the defence did not admit without notifying the parties and giving them an opportunity to make submissions and call responsive evidence. See R. v. Huon, 2010 BCCA 143, at paras. 5-6. To be clear, sentencing judges sometimes can and should raise new issues, but they must respect the right to be heard if they do so. See Baptiste c. R., 2021 QCCA 1064, 73 C.R. (7th) 321, at paras. 38, 46, and 57-59.
[24] But despite his best intentions, the sentencing judge breached this right by finding that the appellant intended to shoot and kill the employee. This was a significant finding because intending to kill another person is one of the “most morally blameworthy state[s] of mind.” See R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636, at p. 645. Its significance underscored the importance of honouring the right to be heard. But unlike the case the Crown relies on (LeBreton v. R., 2018 NBCA 27, 47 C.R. (7th) 435, at para. 21), the Crown did not ask the sentencing judge to make this finding. Thus, the sentencing judge should have notified the parties that he might make such a finding and allowed them to respond. He did not do so because he did not realize that it was a new issue. If he had, he would have followed the same process that he had used to find whether the appellant cocked the handgun.
[25] I disagree with the Crown’s argument that it gave fair notice of this issue. The only aggravating fact Crown counsel sought to prove at sentencing was whether the appellant cocked the handgun. While she submitted that his statements concerning his mental state supported this finding, she never asked the sentencing judge to also find that he expected to shoot and kill the employee. That issue is factually and legally distinct from whether the appellant cocked the handgun. See R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 30. Not all defendants who cock handguns expect to kill other people. Sometimes they intend to intimidate, as in R. v. A.S.D., 2019 BCSC 147, at para. 140, aff’d, 2020 BCCA 208, leave to appeal refused, [2020] S.C.C.A. No. 427. This intent, while still gravely blameworthy, is less grave than expecting to kill.
[27] Because the sentencing judge breached the right to be heard, we must sentence the appellant afresh and without deference to the existing sentence. Under this remedial rule, which this court endorsed in R. v. Cook, 2013 ONCA 467, 307 O.A.C. 280, at paras. 37-38 and 43, the appellant need not show that the breach impacted the sentence as Lacasse requires for errors in principle. This is a specific application of the general rule from Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643, that breaching the right to be heard invalidates decisions even if a new hearing is unlikely to lead to a different result. Cardinal adopted this rule because the right to be heard is an “independent, unqualified” entitlement to fair treatment that is distinct from the decision’s substantive appropriateness.[1] See at p. 661; see also Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653, at p. 674.
[28] The narrow exception to this remedial rule does not apply. Under that exception, there is no need to decide the matter afresh if it is inevitable that the result would be the same if a fair process were followed. See Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), [1994] 1 S.C.R. 202, at pp. 228-229; R. v. Papadopoulos (2005), 2005 CanLII 8662 (ON CA), 201 C.C.C. (3d) 363 (Ont. C.A.), at paras. 24-26. That is not inevitable here. While there was evidence supporting this finding, other evidence contradicted it. Further, the standard of proof barred the sentencing judge from making this finding unless he determined that there was no reasonable doubt on this issue. See Gardiner, at pp. 414-416. If the sentencing judge had given notice and heard the appellant’s submissions and, potentially, his testimony, he may have been convinced that the appellant did not intend to kill the employee or, even if he was not so convinced, it may still have raised a reasonable doubt. This, in turn, may have caused him to impose a lower sentence because he treated the finding as an important aggravating factor. That possibility is sufficient and, as Cardinal teaches, we should not speculate about what the result of a fair process might have been.
Aucun commentaire:
Publier un commentaire