Baptiste c. R., 2021 QCCA 1064
[32] Our criminal justice system is based on an adversarial process.
[33] Its fundamental nature was described in the following terms by Chief Justice Lamer in R. v. Swain[7]:
This Court has also recognized the constructs of the adversarial system as a fundamental part of our legal system. In Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, Sopinka J., in analyzing the doctrine of mootness, stated, at pp. 358-59:
The first rationale for the policy and practice referred to above is that a court's competence to resolve legal disputes is rooted in the adversary system. The requirement of an adversarial context is a fundamental tenet of our legal system and helps guarantee that issues are well and fully argued by parties who have a stake in the outcome.
Similarly, in R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, at p. 195, Sopinka J. referred to "our accusatorial and adversarial system of criminal justice". The Ontario Court of Appeal has also acknowledged the adversarial process as an integral part of our system of justice. In Phillips v. Ford Motor Co. of Canada Ltd. (1971), 1971 CanLII 389 (ON CA), 18 D.L.R. (3d) 641, Evans J.A. stated, at p. 661:
A trial is not intended to be a scientific exploration with the presiding Judge assuming the role of a research director; it is a forum established for the purpose of providing justice for the litigants.
[34] While a sentencing hearing is somewhat more flexible,[8] “the sentencing phase of proceedings retains a basic adversarial nature”.[9]
[35] A sentencing judge cannot assume “the combined role of advocate, witness and judge”.[10] He or she may not become “the prime source of information in respect”[11] of issues during the sentencing hearing or emerge as “the driving force pursuing those issues during the proceedings.”[12]
[36] The role of the sentencing judge was conveniently and thoroughly described by Doherty, J.A. in R. v. Hamilton:[13]
[66] No one suggests that a trial judge is obliged to remain passive during the sentencing phase of the criminal process. Trial judges can, and sometimes must, assume an active role in the course of a sentencing proceeding. Section 723(3) of the Criminal Code provides that a court may, on its own motion, require the production of evidence that "would assist in the determination of the appropriate sentence". Quite apart from that statutory power, the case law has long recognized that where a trial judge is required by law to consider a factor in determining the appropriate sentence and counsel has not provided the information necessary to properly consider that factor, the court can, on its own initiative, make the necessary inquiries and obtain the necessary evidence [References omitted].
[67] Recognition that a trial judge can go beyond the issues and evidence produced by the parties on sentencing where necessary to ensure the imposition of a fit sentence does not mean that the trial judge's power is without limits or that it will be routinely exercised. In considering both the limits of the power and the limits of the exercise of the power, it is wise to bear in mind that the criminal process, including the sentencing phase, is basically adversarial. Usually, the parties are the active participants in the process and the judge serves as a neutral, passive arbiter. Generally speaking, it is left to the parties to choose the issues, stake out their positions and decide what evidence to present in support of those positions. The trial judge's role is to listen, clarify where necessary and, ultimately, evaluate the merits of the competing cases presented by the parties.
[68] The trial judge's role as the arbiter of the respective merits of competing positions developed and put before the trial judge by the parties best ensures judicial impartiality and the appearance of judicial impartiality. Human nature is such that it is always easier to objectively assess the merits of someone else's argument. The relatively passive role assigned to the trial judge also recognizes that judges, by virtue of their very neutrality, are not in a position to make informed decisions as to which issues should be raised, or the evidence that should be led. Judicial intrusion into counsel's role can cause unwarranted delay and bring unnecessary prolixity to the proceedings.
[69] Judges must be very careful before introducing issues into the sentencing proceeding. Where an issue may or may not be germane to the determination of the appropriate sentence, the trial judge should not inject that issue into the proceedings without first determining from counsel their positions as to the relevance of that issue. If counsel takes the position that the issue is relevant, then it should be left to counsel to produce whatever evidence or material he or she deems appropriate, although the trial judge may certainly make counsel aware of materials known to the trial judge which are germane to the issue. If counsel takes the position that the issue raised by the trial judge is not relevant on sentencing, it will be a rare case where the trial judge will pursue that issue.
[70] It is also important that the trial judge limit the scope of his or her intervention into the role traditionally left to counsel. The trial judge should frame any issue that he or she introduces as precisely as possible and relate it to the case before the court. This will avoid turning the sentencing hearing into a de facto commission of inquiry.
[Emphasis added]
[37] These are the general principles applicable to any sentencing hearing.
Aucun commentaire:
Publier un commentaire