Canadian Criminal Appeals - Week of July 13, 2020

Cases:

R v Hills, 2020 ABCA 263 could have been just another case where an appellate court reversed the decision below and restored the MMS for intentionally discharging a firearm at a place: see also R v Itturiligaq, 2020 NUCA 6; R v Oud, 2016 BCCA 332. Instead, two members of the otherwise unanimous panel (O’Ferrall & Wakeling JJA, writing separately) argued that Canadian law should ‘do away’ with the “reasonable hypothetical” approach under s. 12 of the Charter (eg 102-113 per O’Ferrall). Justice Wakeling, once described as a “rising conservative star”, issued a remarkably intemperate screed and Justice O’Ferrall, well, said some things too. The high/low lights:

  • For Wakeling JA, a prison sentence can never be “cruel and unusual” - a view not shared by O’Ferrall JA (or likely anyone else) - and potentially protecting offenders from the death penalty “was the only role section 12 was intended to serve” (135 & 217). In the meantime, Justice Wakeling thinks it is an open question whether the death penalty would be “cruel” (216 & 207-210). As one of my colleagues noted, he should blog about it.

  • Wakeling JA tears into R v Smith, [1987] 1 SCR 1045, a decision which “plague[s] the law to this day” because, among other things, it “based its decision on a make-believe problem that would never happen in real life”; this is because prosecutors would only ever act reasonably (128, 140 & 224). Justice Lamer also engaged in a “completely irrelevant and unhelpful” analysis and “had no qualms about undermining the constitutional foundation by disregarding the existence of prosecutorial discretion and, going further, relying on a fanciful unrealistic hypothetical” (228 & 258). And, “judicial heresy” has its “fingerprints […] all over” Smith (187).

  • And what does Wakeling JA think about the binding precedent from Nur and Lloyd? It “completely eviscerated” the concept of gross disproportionality, committed “a blatant attack on democratic values” and opened the floodgates (146: “Even the liberal United States Supreme Court justices would probably be uncomfortable with such a blatant attack on democratic values”). They acted “without a valid doctrinal basis and invade[d] a field of legislative decision-making when entirely ill-equipped to do so”; “a sad state of affairs” (291-292). “Some judges are wanna-be legislators” and “it is obvious” that the majority in Nur and Lloyd intentionally “constructed a model for identifying cruel and unusual punishment that it knows will invalidate sentencing decisions made by both Conservative and Liberal governments over the last approximately fifty years” (299 & 291).

  • Justice Wakeling is “convinced that most Canadians would be extremely upset to learn that some judges would conclude that a one-year sentence for these drug traffickers “would shock the conscience of Canadians”. They would worry about the judge’s perception of the real world” (289). Editorial Note: I am not sure what Justice Wakeling precisely means by “these” drug traffickers but it seems like he is treating all drug traffickers as if they are cut from the same cloth, a richly monolithic statement given the next bulleted point.

  • “[O]ur sentencing regime is broken”, Justice Wakeling insists, and the assumption that “our sentencing regime is rational and meritorious and can be relied on to produce fit sentences […] is unfounded” (298 & 141-142). According to Justice Wakeling “[a] one-year sentence for these [drug trafficking] criminals would not cause the consciences of most Canadians to even tingle” (288). In jest, is this the ASMR approach to sentencing? Although buried in footnotes, Justice Wakeling favours statutory-based sentencing guidelines to reduce the “outrageous” disparity that he claims exist (142, footnotes 29-32. See: R v Ryan, 2015 ABCA 286 at 65-82).

  • O’Ferrall JA chimed in that “even a grossly disproportionate sentence may not necessarily constitute cruel and unusual punishment” particularly where the purpose of that sentence is to protect society or “to send a message…to those who might transgress” (116-118). Wait, what?

  • O’Ferrall JA endorsed uncertainty as a sentencing goal: “to the extent that doing away with reasonable hypothetical analysis leads to uncertainty, that may not be a bad thing. Sentences are prescribed to deter. Uncertainty about the punishment a crime might attract adds to the deterrence” (113). This is why, in his view, MMS that communicate - if not randomly impose - grossly disproportionate sentences should “remain intact” (118). You can’t make this stuff up: a Russian roulette or Rota Fortunae approach to sentencing?

You would be forgiven for thinking that Wakeling JA’s impudent harangue was penned by Justice Antonin Scalia, well-known for savaging his colleagues (eg “The opinion is couched in a style that is as pretentious as its content is egotistic”), and whose name incidentally appears 13 times in Wakeling JA’s broadside. Albeit Scalia had a sense of humour. My guess is that O’Ferrall & Wakeling JJA see an opportunity to tempt the dissenters from Nur/Lloyd - at least those who remain on the SCC (Wagner CJ, Moldaver & Brown JJ.) - to ‘revisit’ the current jurisprudence (102). My hope is that the SCC relegate this invitation to a place familiar to Justice Wakeling: a footnote. After all, in Nur, Justice Moldaver did not question the validity of the reasonable hypothetical approach generally (125), even if he has been willing to depart from decades of established precedent in Jordan and Poulin, and even if there has been some recent judicial push-back to uphold certain MMS. While Nur and especially Lloyd unquestionably lowered the bar for section 12 applicants, it is hyperbole to suggest that the bar has been "completely eviscerated"; indeed, this is shown by the result in Hills itself, if not other recent cases: see for instance R v Bernarde, 2018 NWTCA 7; R EJB, 2018 ABCA 239; R v Plange, 2019 ONCA 646.

NB: When you refer to the late, great Justice Cory, spell his name correctly (ie not Corey). Also, this case can be cited as R v Over the Hills and Far Way or perhaps R v Glory Days (well they'll pass you by).

Have you ever wondered what happens to someone who “is not a Canadian citizen” but who commits a criminal offence while “on any aircraft, while the aircraft is in flight if the flight terminated in Canada”? Well, for one, the Attorney General of Canada (“AGC”) is bound by an 8-day “limitation period”: “no proceedings in respect of which courts have jurisdiction by virtue of this section shall be continued unless the consent of the Attorney General of Canada is obtained not later than eight days after the proceedings are commenced” (section 7(7), Code). And so it was in R v Aloise Hoch, 2020 CanLII 46157 that the SCC denied the Crown leave to appeal 2019 QCCA 2182 which had nullified the sexual assault/interference prosecution because the AGC’s consent had not been obtained within eight days of the original commencement of the proceedings.

The gist: the allegations stem from a transatlantic flight (Paris to Montreal) on 23 Feb/18; the accused was charged on 24 Feb/18; the accused delayed his bail hearing until 6 Mar/18 at which time his lawyer successfully moved to have the charges nullified due to an absence of consent under s. 7(7); the Crown laid a new information on the same day; and the AGC consented on 7 Mar/18. Nice try (!) is basically what the QCCA said (in Google translation): “It would also be illogical for Parliament to impose such a short period if it could be renewed at the discretion of the Crown” (28). The second proceeding was no less a nullity. NB: the QCCA relies on R v Patel, 2016 ONCJ 172 where Copeland J. (as she then was) notes that s. 7(7) was “designed by Parliament to ensure that charges for extraterritorial offences against people who are not Canadian citizens are screened at an early stage by the Attorney General of Canada in order to minimize the risk that international relations issues will arise from such prosecutions” (34). Also, if the aircraft is registered in Canada under regulations made under the Aeronautics Act it does not matter whether the flight terminates in Canada or in some foreign destination (section 7(1)(a), Code). Remember the days when you could travel to another country by air?

In R v Thanabalasingham, 2020 SCC 18, the SCC upheld, in brief reasons, the trial judge’s stay of proceedings for unreasonable delay on the charge of second degree murder. The procedural history of this appeal is convoluted and noteworthy.

On June 29, 2012, ST, then a permanent resident to Canada, was released on bail pending sentencing for an assault against his wife. Within 6 weeks of his release, his wife was founded dead and he was charged with her murder, a charge which was eventually stayed on April, 7 2017 on the basis of unreasonable delay: 2017 QCCS 1271. On July 5, 2017, ST was deported to Sri Lanka, a country that does not have an extradition treaty Canada. In 2018 QCCA 197 a five-member panel of the QCCA divided (4:1), with the majority (per Hilton JA) holding that the appeal was moot and that there were no exceptional circumstances to justify adjudication even if the appeal was not moot. In dissent, Duval Hesler CJQ held that the appeal was not moot and that the trial judge erred in finding a violation of 11(b) and staying the proceedings. In brief reasons, the SCC agreed that the appeal was not moot - “the mere fact that an individual has been deported…to a country with which Canada does not have an extradition treaty does not render a case moot” - and the matter was remitted to the QCCA for a decision on its merits: 2019 SCC 21. The same five-member panel of the QCCA divided again (3:2), with the majority (per Vauclair JA) holding that the trial judge did not err in finding a violation of 11(b) and staying the proceedings: 2019 QCCA 1765.

In reaffirming the message that Jordan and Cody sought to convey - that “practices that were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by s. 11 (b) of the Charter” - the SCC found that the net delay of 45 months “far exceeded the 30-month presumptive ceiling established in Jordan” and, given that it was a transitional case, it “would certainly have qualified for a stay under” Morin. The Court rejected the dissenting view from the QCCA that the Crown’s decision to pursue a first degree murder charge at the preliminary inquiry - which lasted more than one year “due in no small measure to systemic delay” which had “reached epidemic proportions across many parts of this country” - was a “discrete exceptional event”. While the SCC did not endorse the trial judge’s criticism of this exercise of Crown discretion, it reminded that “Crown counsel must be alive to the fact that any delay resulting from their prosecutorial discretion must conform to the accused’s s. 11 (b) right”. The accused, the SCC noted, had spent nearly 5 years in custody waiting for his trial.

Ryan Clements