Baptiste c. R.					2021 QCCA 1064
COURT OF APPEAL
CANADA
PROVINCE OF QUEBEC
REGISTRY OF			MONTREAL
No.:	500-10-007340-209
(500-01-159108-171, 500-01-159109-179)
DATE:	June 29, 2021
CORAM:		THE HONOURABLE		MARIE-JOSÉE HOGUE, J.A. GENEVIÈVE COTNAM, J.A. GUY COURNOYER, J.A.
NICHOLAS BAPTISTE
APPELLANT - Accused
v.
HER MAJESTY THE QUEEN
RESPONDENT - Prosecutor
JUDGMENT

[1]           Mr. Baptiste was found guilty of offences related to the unauthorized possession of multiple weapons. He seeks to appeal the sentences imposed on May 12, 2020, by the Court of Québec, Criminal and Penal Division (Mr. Justice Dennis Galiatsatos).

I-          Overview

[2]           The frequency of gun offences and gun violence is a source of genuine concern.

[3]           As the Supreme Court of Canada noted in R. v. Nur: “Gun-related crime poses grave danger to Canadians”[1] and “[f]irearm-related offences are serious crimes. Parliament has sought to protect the public from firearm-related injuries and to deter crimes involving firearms through a combination of strict licensing and registration requirements”.[2]

[4]           In R. v. Felawka, the Supreme Court underlined the fact that “[a] firearm is expressly designed to kill or wound” and that “[n]o matter what the intention may be of the person carrying a gun, the firearm itself presents the ultimate threat of death to those in its presence”.[3]

[5]           This case addresses procedural fairness issues and only peripherally these legitimate preoccupations. It concerns mainly the encroachments on known principles of procedural fairness[4] during the appellant’s sentencing hearing, which ultimately resulted in an unfit sentence.

[6]           The parties agree that the sentencing judge never shared with them his concerns about their joint submission for 16 months of imprisonment. They never expected that he would depart from that submission, let alone double the sentence they had suggested, imposing a total sentence of 32 months on the appellant.

[7]           They also submit that the sentencing judge mischaracterized the nature of the offences committed by the appellant and wrongly selected the applicable sentencing range for these offences on the basis of an unreasonable finding of fact.

[8]            Ultimately, they part ways in how these errors impacted on the sentence inflicted.

[9]           Despite the known strictures on its ability to change position on a sentence appeal, the Crown repudiates the joint submission presented to the sentencing judge and argues that a sentence of 24 months is appropriate as opposed to the 32 months imposed by the judge.

[10]        The Crown also invites our Court to “set a new direction” on sentencing for gun offences.

[11]        However, the Crown agrees that it is incumbent upon our Court to determine the appropriate and fit sentence.

[12]        For the reasons that follow, we believe that the parties’ joint submission of 16 months of imprisonment was, and is, a fit sentence.

II-         Background

[13]        On November 23, 2017, on the basis of an ITO alleging that the appellant was in possession of a firearm, a justice of the peace issued a search warrant for his premises. The appellant was arrested the same day while he was exiting his sister’s residence and was driven to his home where the police were executing the search warrant. The appellant informed the police of the firearm’s location in the dwelling. The police found an SKS-762 in the basement unit of the dwelling. The search also located five 9-mm calibre bullets and a set of brass knuckles. All objects were found in the same hiding place.

[14]        The sentencing hearing followed a three-day trial exclusively focused on a Charter motion to exclude the evidence pursuant to s. 24(2), which motion was denied.[5]

[15]        It was agreed at the outset of the proceedings that the Charter motion was dispositive of the case.

[16]        On the basis of the statement of admissions that had been filed at trial, the appellant was found guilty of all seven offences committed on November 23, 2017 contained in the indictment: (1) unauthorized possession of an SKS-762 (s. 91(1)(a)); (2) possession of an SKS-762 knowing its possession is unauthorized (s. 92(1)(a)); (3) unauthorized possession of a cartridge magazine (s. 91(2)(3)(a)); (4) possession of a cartridge magazine knowing its possession is unauthorized (s. 92(2)(3)); (5) unauthorized possession of brass knuckles (s. 91(2)(3)(a)); (6) unauthorized possession of a cartridge magazine (s. 91(2)(3)(a)); and (7) contravention of storage regulations (s. 86(2)).

[17]        The appellant entered a guilty plea to three additional offences for possession of the SKS-762, the cartridge magazine and the brass knuckles contrary to a prohibition order issued under s. 110 in 2010, all offences contrary to s. 117.01(3)(a) of the Criminal Code.

[18]        The SKS-762 was a semi-automatic weapon with an illegal high-capacity magazine. The cartridge magazine which was the subject of a distinct count was not compatible with the SKS-762.

[19]        The firearm was not used in the commission of any crime.

III-        The sentencing hearing

[20]        The sentencing hearing was held on May 8, 2020 and was of short duration, lasting 33 minutes.

[21]        The parties presented a joint submission for a total sentence of 16 months. The Crown described it as fair and not contrary to the public interest.

[22]        The appellant drew the judge’s attention to the following circumstances: he is the sole provider for his five children, he has a job, he has dated criminal records, there was no aggravating context to the possession of the weapon, this would be his first custodial sentence, and he cooperated with the authorities during the execution of the search warrant in locating the items to be seized.

[23]        The sentencing judge asked about what impact, if any, media reports of recent shootings in Montreal could have on the sentencing process. He emphasized the fact that these shootings were constantly in the news.

[24]        The Crown responded that the parties considered the upward trend in formulating the joint submission and agreed that it could be taken into account “in a general sense” by the sentencing judge.

[25]        The judge then inquired if there had been any quid pro quo, exchange or concession made by either party.

[26]        The parties told the judge that they had met halfway from their respective initial positions.

IV-       The sentencing judgment

[27]        Four days later, on May 12, 2020, the sentencing judge issued a 47 pages decision.[6]

[28]        The overview of the judgment provides an understanding of the sentencing judge’s perspective:

[1]        This matter calls for the determination of a fit sentence for the possession of a semi-automatic assault rifle with an oversized magazine and a folding stock, seized by the police during the execution of a search warrant. No offence involving the use of the firearm was committed.

[2]        For the longest time in this country, gun violence was considered to be a foreign problem. Viewed as a predominantly American phenomenon, Canadians’ exposure to the dangers of illegal firearms was once limited - in large part - to what they saw on television. Canadians felt immune. They felt safe.

[3]        Alas, the times have changed. In recent years, various communities have been struggling to adjust to a newly emerging and pressing gun problem.

[4]        The City of Montreal, the country’s second-largest urban centre, is now one of them. In its sister metropolis of Toronto, it is well documented in the caselaw that gun crime has become nothing short of a cancer.¹ The situation appears to have spiralled out of control.

[5]        Montreal should not have to suffer the fate of Toronto. There is time to act in this city. The worsening situation compels firm action from the courts in an effort to curb the proliferation of gun-related crime. We are at a crossroads of sorts. While other government initiatives undoubtedly have their part to play, the message from the justice system must be firm and unequivocal: illegal guns will not be tolerated in this district.

[6]        As a preliminary matter, this case raises the question of whether or not the Court is required to follow the parties’ joint recommendation on sentence, which was negotiated post-verdict. As will be seen below, the Court declines to endorse the recommendation.

[29]        The sentencing judge cannot be faulted for explaining why he was departing from the joint submission of the parties, because he was required to do so; but the length of the judgment clearly establishes that the judge’s multiple concerns did not arise overnight.

[30]        It is also clear that almost none of them were shared with the parties. The judgment reveals the extent of the judge’s concerns, of which the parties were virtually totally unaware.

[31]        While the parties are on common ground and share the view that the process in this case strayed from the expected measure of procedural fairness in an adversarial process, it is nevertheless important to revisit the applicable principles before determining the fitness of the imposed sentence.

V-        The adversarial process and the sentencing hearing

[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] 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] 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), 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.

VI-       Prevalence of a crime and judicial notice

[38]        Of particular relevance in this case are the principles that ensure procedural fairness before a judge may take judicial notice of the prevalence of a crime.

[39]        The Supreme Court’s decision in R. v. Lacasse reaffirmed that the prevalence of a crime is a relevant sentencing consideration:

[90]      Although the fact that a type of crime occurs frequently in a particular region is not in itself an aggravating factor, there may be circumstances in which a judge might nonetheless consider such a fact in balancing the various sentencing objectives, including the need to denounce the unlawful conduct in question in that place and at the same time to deter anyone else from doing the same thing. It goes without saying, however, that the consideration of this factor must not lead to a sentence that is demonstrably unfit. [14]

[40]        However, taking judicial notice of a fact, which is “the acceptance of a fact without proof”,[15] must be done cautiously.

[41]        In R. v. Spence,[16] Binnie, J. pointed out three potential dangers stemming from judicial notice: (1) what “everybody knows” may be wrong; (2) procedural unfairness; and (3) disagreement among judges about some “fact” that “everybody” knows:

[51]      Thayer’s approach to judicial notice has its role but I do not think it helps us to solve the issue posed by the African Canadian Legal Clinic. There are at least three difficulties standing in its way. Firstly what “everybody knows” may be wrong. Until Parks, “everybody” knew the solemnity of a criminal trial and careful jury instructions from the judge meant there was little possibility that potential jurors in Toronto would be influenced by racial prejudice (Doherty J.A., at p. 360 of Parks, cites a number of trial decisions where race-based challenges for cause were rejected for that reason). Common law judges in early Tudor England would presumably have taken judicial notice of the “fact” that the sun revolves around the earth. Secondly, there is the problem of trial fairness. Where do these facts come from and how are the parties going to address them? How can parties who are prejudiced by the taking of judicial notice rebut what “everybody” knows unless a plausible source is put to them for their comment and potential disagreement? (See R. v. Parnell (1995), 98 C.C.C. (3d) 83 (Ont. C.A.), at p. 94.) A third problem is that judges occasionally contradict each other about some “fact” that “everybody” knows, even on the same court in the same case. Thus, in Campbell v. Royal Bank of Canada, [1964] S.C.R. 85, Martland and Ritchie JJ., dissenting, pointed out, at p. 91, that the majority and dissenting judges in the court below had taken judicial notice of flatly contradictory facts, namely whether it was usual or unusual to find water in substantial quantities on the floor of a Manitoba bank in wintertime. More dramatically, in Clinton v. Jones, 520 U.S. 681 (1997), where the issue before the Supreme Court of the United States was whether a sitting President is entitled to automatic immunity during his term of office with respect to private conduct prior to his election to the presidency, the court stated with confidence with respect to the Paula Jones affair that “it appears to us highly unlikely to occupy any substantial amount of petitioner’s time” (p. 702).

[42]        The sentencing judge relied partly on his own internet search[17] and on the apparent agreement of the parties to conclude that the recent upsurge in gun violence in the district of Montreal increased the need for general deterrence in this case to bring that violence under control.

[43]        Yet, upon reading the judgment under appeal, one notes that some of his findings are inconclusive: “[t]he situation appears to have spiralled out of control”, “[i]t appears that the gun culture that has afflicted Toronto for the last several years is now at our doorstep”, “[t]he citizens of Montreal are understandably appalled at what appears to be a proliferation of gun violence in the city”, and “the parties seemed to acknowledge that the situation was in fact worsening in the last year” [Emphasis added].

[44]        The judge’s own findings of fact reveal that the scant evidence before him merely established a perception of an increase in gun offences.[18]

[45]        They provide an unsteady foundation for general deterrence[19] as a justification for departing from a joint submission on sentence, especially given the importance of procedural fairness, even where the joint submission was made after trial.[20]

[46]        The fact that gun offences may or may not have increased recently is irrelevant to the procedural fairness issue. It would be equally unfair for our Court to rule on this matter absent a proper evidentiary hearing.

[47]        This is particularly so in a case where Crown counsel specifically informed the judge that the prevalence of this type of crime was factored into the joint submission. Caution was therefore markedly warranted.

[48]        Additionally, as our Court underscored in R. v. Ruel[21] − a case the sentencing judge did not refer to − and given the need for individualization,[22] the prevalence of a crime is one factor to consider with care but not the only one. That is the rule even where there is a scourge, a fact not properly demonstrated in this case.

[49]        As the judge failed to alert the parties that, in his view, the situation was such as to justify imposing double the sentence jointly submitted, they were prevented from making any additional submissions tailored to the judge’s preoccupations.

[50]        Furthermore, crime trends, even when based on official data, are notoriously difficult to interpret.[23] Statistics can be “misunderstood and misused absent proper expert evidence”,[24] hence, the need for robust probing of such data by the parties at a sentencing hearing.[25] Circumspection was in order.

[51]        Prior to Lacasse, some appellate courts expressed concerns and were reluctant to take judicial notice of the prevalence of a crime in a judicial district without reliable data.

[52]        In R. v. Priest, Rosenberg, J.A. of the Ontario Court of Appeal noted that “unlike some cases that have come before this court, there were no statistics placed before the trial judge and he based his opinion on the court dockets of persons accused of the crime of break and enter”.[26]

[53]        In R. v. Provost, Rowe, J.A. of the Newfoundland and Labrador Court of Appeal (as he then was) adopted the position put forward by the federal prosecution service that courts should be “cautious and avoid relying on unsubstantiated conclusions” and that “[t]he preferred course is for the court to provide the Crown and the offender with an opportunity to test the accuracy of the facts that the Court intends to rely on in sentencing”.[27]

[54]        Albeit in a different context, Arbour, J.A. of the Ontario Court of Appeal (as she then was) made the following relevant observations in R. v. Bennett: “Judges should be particularly wary of relying on nothing more than their own information and perceptions as to the current state of the criminal justice system and, more significantly, of the causes of this state of affairs”.[28]

[55]        Significantly, a close and proper reading of Lacasse reveals that the Supreme Court was similarly cautious.

[56]        In a carefully worded opinion, Wagner, J. (as he then was) noted that a sentencing judge is “in a position to observe and assess the magnitude of the problem in his region, especially given that it is well established in our law that judges can take judicial notice of the contexts in which they perform the duties of their offices”.[29]

[57]        Yet, Wagner, J. also emphasized the importance of a fair process before judicial notice can be taken of the prevalence of a crime.

[58]        Importantly, he wrote that “considerations of procedural fairness will generally require that a judge who intends to attach weight to the local reality and to the frequency of a crime in a given region offer the parties an opportunity to make representations on the subject”.[30]

[59]        The prudent approach endorsed in Lacasse is rooted in the pillars of the adversarial criminal justice system.

[60]        As Lauwers, J.A. of the Ontario Court of Appeal noted extra-judicially, given that “our adversarial system of justice and the rules of evidence have developed to counteract [confirmation] bias, judges and others in the legal profession must remain vigilant. Evidence on all sides must be fairly scrutinized and weighed”.[31]

[61]        With respect to the case at bar, we do not expect judges to surf the Internet in order to establish or confirm the latest upward or downward crime trends, especially when they do not notify the parties of their intention to do so.

[62]        Our Court was forcefully clear about this in the recent case of Drapeau v. R.:[32]

[15]      Il mérite de préciser que les règles de preuve et de procédure sont différentes de celle d’un procès lorsqu’il s’agit de déterminer la peine, le Code criminel (« C.cr. ») prévoyant d’ailleurs aux articles 720 à 729.1 des règles particulières et assouplies à cette fin. Le tribunal peut notamment exiger d’office la présentation des éléments de preuve qui pourront l’aider à déterminer la peine (723(3) C.cr.), de même que la comparution de toute personne contraignable pouvant lui fournir des renseignements utiles à cette fin (723(4) C.cr.). De plus, la preuve par ouï-dire est également admissible, mais le tribunal peut toujours contraindre à témoigner la personne qui a eu une connaissance directe du fait (723(5) C.cr.). [16]      Cela étant, cette souplesse ne permet tout de même pas au juge de mener sa propre enquête hors la présence des parties ou de tenir compte de faits sur lesquels les parties n’ont pas eu l’occasion de répondre, le par. 723(3) C.cr., prévoyant explicitement que la présentation des éléments de preuve à la demande du tribunal afin de déterminer la peine ne pouvant se faire « [qu’]après avoir entendu le poursuivant et le délinquant ». La règle voulant que dans le cadre d’un procès criminel un tribunal ne puisse ajouter à la preuve de son propre chef sans donner l’opportunité aux parties d’y répondre2, s’applique donc tout autant lors de la détermination de la peine.   [17]      Le juge en l’instance a donc commis une grave erreur en procédant à une recherche sur Internet comme il l’a fait sans en aviser les parties et leur permettre d’y répondre. Le ministère public en convient d’ailleurs. En mots clairs, cette démarche ou pratique est tout simplement à proscrire. Il ne revient pas au juge de la peine de faire sa propre enquête sans avoir entendu le poursuivant et le délinquant en conformité avec les dispositions du Code criminel (723(3)).

[15]      It should be noted that the rules of evidence and procedure for determining the sentence differ from those applicable to the trial; indeed, ss. 720 to 729.1 of the Criminal Code (“Cr.C.”) set out specific and flexible rules in that regard. In particular, the court may, on its own motion, require the production of evidence that would assist it in determining the appropriate sentence (723(3) Cr.C.), as well as compel the appearance of any person who is a compellable witness to assist the court for the same purpose (723(4) Cr.C.). Moreover, hearsay evidence is also admissible, but the court can still compel a person to testify where the person has personal knowledge of the matter (723(5) Cr.C.). [16]      That having been said, however, this flexibility does not entitle the judge to conduct his own investigation outside the presence of the parties or to take into account facts with respect to which the parties have not had the opportunity to respond; in that regard, s. 723(3) Cr.C. expressly states that the production of evidence at the court’s request in order to assist it in determining the appropriate sentence can occur only “after hearing argument from the prosecutor and the offender”. The rule to the effect that a court cannot, within the scope of a criminal trial, add to the evidence of its own initiative without giving the parties the opportunity to respond thereto,2 thus applies equally during sentencing. [17]      In the case at bar, the judge therefore committed a serious error in performing an Internet search as he did without so informing the parties and allowing them to respond to the search. The Crown, in fact, agrees that this was an error. Simply put, such an initiative or practice must be proscribed. It is not up to the sentencing judge to conduct his own investigation without having heard the prosecutor and the offender in accordance with the provisions of the Criminal Code (723(3)). [Unofficial translation]

[63]        The perception that there has been a rise in the frequency of a crime or the impressionistic portrait of a crime trend must be tested through the adversarial system.  As Binnie, J. explained in Spence, the parties must know where the facts come from and how they are going to address them. The source of the facts must be “put to them for their comment and potential disagreement”.[33]

[64]        Both parties agree that the sentencing judge did not forewarn them that, based on his perception of an increase in gun offences, he intended to depart from the joint submission, let alone substantially. Nor did he forewarn them that he would rely on that perception to disregard and double the sentence jointly submitted by the parties.   

[65]        The mere fact that the sentencing judge alluded to an upward trend in gun offences was insufficient to alert them to his preoccupations.

[66]        More specifically, the sentencing judge did not notify counsel of any concerns or invite them to present further submissions on the need for general deterrence and on any specific aggravating factors justifying a departure from the joint submission.

[67]        As Moldaver, J. noted in Anthony-Cook, “for joint submissions to be possible, the parties must have a high degree of confidence that they will be accepted. Too much doubt and the parties may choose instead to accept the risks of a trial or a contested sentencing hearing” [Emphasis added].[34]

[68]        To justify or support his departure from the joint submission presented by the parties, the sentencing judge purported to rely on our Court’s decision in Blondeau[35]. It is an unfortunate narrow reading of Blondeau.

[69]        The context in Blondeau differed significantly from the matter at hand. In Blondeau, the judge informed the parties of his concerns about the joint submission on sentence presented after verdict and he gave them the opportunity to respond. Our colleague Ruel J.A., concluded that, having acted fairly, the judge could therefore depart from a joint submission that would be contrary to the public interest and that could bring the administration of justice into disrepute.[36]

[70]        While it is true that our colleague recognized in his nuanced opinion the existence of a difference in the nature of the discretion of a sentencing judge before trial and after a verdict, nothing in his reasons suggests vesting the sentencing judge with an unbridled or untrammelled discretion to ignore at will the joint submission of the parties merely because it was made after trial.

[71]        The importance of preserving the high degree of confidence necessary to prevent an unnecessary contested sentencing hearings[37] and the important role of the Crown as the protector of the public interest, as the Supreme Court underlined in Anthony-Cook and recently in Ontario (Attorney General) v. Clark,[38] cannot be ignored and do not simply vanish after a trial.

[72]        Even though the benefits of an uncontested sentencing hearing after trial are different in magnitude from a guilty plea before trial, they too save “precious time, resources, and expenses, which can be channeled into other matters”.[39] 

[73]        The criminal justice system has many moving parts. Sentencing hearings are one of them. In the recent case of R. v. K.G.K.[40], Moldaver, J. referred to the compelling observations of Doherty, J.A. in R. v. Allen where he stated that “[n]o case is an island to be treated as if it were the only case with a legitimate demand on court resources”.[41]

[74]        Timely and efficient sentencing hearings are expected under s. 11(b) of the Charter.[42] So is cooperation between counsel,[43] including through joint submission after trial.  This “is no small benefit”[44] because it allows “our justice system to function more efficiently”.[45] Obviously, any time that “goes to one case cannot go to another”.[46]

VII-      Is the intervention of our Court warranted?

[75]        The applicable standard was delineated in Lacasse: where there is “an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor can justify the intervention of an appellate court and permit that court to inquire into the fitness of the sentence and replace it with the sentence it considers appropriate”.[47] To the extent that they are not affected by an error in principle, the sentencing judge’s findings of fact or identification of aggravating and mitigating factors are afforded deference on review.[48]

[76]        The parties have a common view that the sentencing judge erred in concluding that this case warranted the application of sentences involving a loaded weapon or an unloaded weapon with readily available ammunition, because he came to such a view through unreasonable inferences from the fact that the appellant possessed ammunition for a different firearm.

[77]        Even assuming those facts, gun offences cast their “net over a wide range of potential conduct”[49] and a judge must be able to “tailor proportionate sentences at the lower end of a sentencing range”.[50]

[78]        The sentencing judge overemphasized the need for general deterrence without a proper evidentiary basis for doing so. We reiterate that this is of particular importance in the present case, where the Crown informed the sentencing judge that the prevalence of gun offences had been taken into consideration by the parties and factored into the joint submission.

[79]        The sentencing judge completely disregarded any mitigating factors notwithstanding that they, at the very least, cumulatively supported the joint submission of the parties, particularly in the context of a first custodial sentence for an offender who had not committed any offence for some seven years.

[80]        While the offences committed by the appellant were indeed serious and worrisome,[51] a total sentence of 16 months is hardly a lenient sentence and it sits comfortably within the range reviewed recently by our Court in Nadeau c. R.[52]

[81]        We start our analysis from the assumption built into the Crown’s position (24 months), the 32-month sentence imposed by the trial judge was inappropriate.

[82]        Then, we note that the 16-month joint submission could hardly be described as “so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down”.[53]

[83]        We believe that the 16-month joint submission was a fit and proportionate sentence, but we must address one remaining issue: the Crown’s submission to set the sentence at 24 months.

VIII-     Repudiation of the Crown’s position

[84]        For the past 50 years, our Court has consistently held that the Crown may only repudiate its position on a sentence appeal in exceptional circumstances.[54]

[85]        This area of the law was handily summarized in R. v. S.(H.):[55]

[59]      […] While there is no rule or principle that precludes the Crown from repudiating its position taken at trial, jurisprudence has established that it may only be done in exceptional circumstances - where it can be shown that the public interest in the orderly administration of justice is outweighed by the gravity of the crime and the gross insufficiency of the sentence: See R. v. P.J.B. (1999), 141 C.C.C. (3d) 290 (Nfld. C. A.); R. v. Marks (1994), 91 C.C.C. (3d) 421 (Nfld. C.A.); Attorney General of Canada v. Roy (1972), 18 C.R.N.S. 89 (Que. Q.B.).

[60]      The public’s interest in the orderly administration of justice requires a consideration of any potential unfairness to the offender resulting from the Crown’s change of position as to sentence on appeal.

[61]      Appellate courts have refused to intervene in a sentence where the record demonstrated that the offender acted in reliance upon the Crown’s position below. Courts have been particularly reticent to give effect to increased Crown submissions on appeal where offenders have pleaded guilty after receiving sentencing assurances from the Crown, or where the parties have made a joint submission on sentence: See R. v. Agozzino (1969) 6 C.R.N.S. 147 (Ont. C.A.); R. v. Wood (1988), 43 C.C.C. (3d) 570, 29 O.A.C. 99 (Ont. C.A.); R. v. Simoneau (1978), 40 C.C.C. (2d) 307 (Man. C.A); R. v. Dubien (1982), 67 C.C.C. (2d) 341 (Ont. C.A.); Attorney General of Canada v. Roy (1972) 18 C.R.N.S. 89 (Que. Q.B.); R. v. Edwards (2001), 54 O.R. (3d) 737. In such cases, appellate courts have found that it would prejudice the offender to allow the Crown to repudiate its position on appeal. See also: R. v. Fleury (1971), 23 C.R.N.S. 164 (Que. C.A.); R. v. Wood (1975), 26 C.C.C. (2d) 100 (Alta. C.A.).

[86]        It is crucial to remember that “[t]he Crown is not an ordinary litigant.  As a minister of justice, the Crown’s undivided loyalty is to the proper administration of justice”.[56] The Crown is expected to act accordingly.

[87]        In the case at bar, we do not find any exceptional circumstances that would justify the Crown’s repudiation of the joint submission presented in first instance.

[88]        Perhaps the Crown’s new position is best understood through the filter of its invitation to our Court to modify the range of sentences applicable to gun offences.

[89]        Borrowing from the language of the Supreme Court’s decision in R. v. Friesen, the Crown invites the Court to seize the opportunity of this case to “set a new direction, bringing the law into harmony with a new societal understanding of the gravity of certain offences [here, gun offences] or the degree of responsibility of certain offenders”.[57]

[90]        We decline to do so because we believe that we must “[d]ecide only as much as is required to deal with the case at hand and wait for another case on different facts to decide more”.[58] 

[91]        This case, based on a joint submission on sentence, albeit after trial, is hardly the appropriate vehicle to determine whether case law applicable to gun offences “no longer [respond] to society’s current understanding and awareness of the gravity of [those] particular offence[s] and blameworthiness of particular offenders”.[59]

[92]        We leave this issue to be considered, if need be, in a case where a proper debate would have taken place in the court below and with the benefit of an appropriate evidentiary foundation.

[93]        The joint submission of the parties was both an appropriate proportionate sentence and one that does not bring the administration of justice into disrepute or is otherwise contrary to the public interest.  

[94]        In sum, the Court intervenes and sets aside the sentence imposed below because: the judge failed to notify the parties of his intention to depart from the joint submission;  he placed undue emphasis on general deterrence and on the prevalence of gun offences without proper evidence to support it; he selected the wrong range of sentences based on a unreasonable finding of fact;  he failed to consider the cumulative effect of some attenuating factors to support the joint submission; and he departed from a joint submission that was not contrary to the public interest and would not discredit the administration of justice.

FOR THESE REASONS, THE COURT:

[95]        GRANTS leave to appeal;

[96]        ALLOWS the appeal;

[97]        REVERSES the judgment rendered by the Court of Québec, and, proceeding to render the judgment that should have been rendered, REPLACES the conclusions of the judgment under appeal with the following:

In file 500-01-159108-171

 

IMPOSES a total sentence of 16 months imprisonment on counts 1, 2, 3 and 4:

 

-       unauthorized possession of the firearm (s. 91(1) Cr.C.);

-       knowingly unauthorized possession of the firearm (s. 92(1) Cr.C.);

-       unauthorized possession of the high-capacity magazine (s. 91(2) Cr.C.);

-       knowingly unauthorized possession of the high-capacity magazine (s. 92(2) Cr.C.);

 

IMPOSES a sentence of 3 days imprisonment on counts 5 and 6:

 

-       unauthorized possession of the brass knuckles (s. 91(2) Cr.C.);

-       knowingly unauthorized possession of the brass knuckles (s. 92(2) Cr.C.);

 

IMPOSES a sentence of 5 months on count 7:

-       careless storage of a firearm (s. 86(2) Cr.C.);

 

In file 500-01-159109-179

 

IMPOSES a sentence of 8 months imprisonment on all three counts of contravening a weapons prohibition (s. 117.01 Cr.C.);

 

DIRECTS that all the above-mentioned sentences be served concurrently;

 

TAKES INTO ACCOUNT the 62 days of pre-sentence custody already served by the accused;

 

GRANTS a credit for that pre-sentence custody pursuant to s. 719(3.1) Cr.C., equivalent to 93 days;

 

ORDERS the accused to submit to a probation period of 2 years following his release, including, in addition to the compulsory provisions set out in the Criminal Code (section 732.1(2)), an obligation to complete, within the probationary period, 240 hours of community service;

 

ORDERS, pursuant to s. 109(1)(d) Cr.C., that the accused is hereby prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance:

 

-       For life, for the weapons listed at s. 109(2)(b) Cr.C.;

-       For a period of 10 years starting from the accused’s release from imprisonment, for the weapons listed at s. 109(2)(a) Cr.C.;

 

ORDERS, pursuant to s. 487.051(3) Cr.C., that the accused provide samples of bodily substances that are reasonably required for the purpose of forensic D.N.A. analysis;

 

ORDERS, pursuant to s. 491 Cr.C.,that the firearm, ammunition and brass knuckles seized be forfeited to the Crown and disposed of as the Attorney General directs.

		MARIE-JOSÉE HOGUE, J.A.
		GENEVIÈVE COTNAM, J.A.
		GUY COURNOYER, J.A.
Mtre Mathieu Corbo
For the Appellant
Mtre Geneviève Langlois
DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS
For the Respondent
Date of hearing:	April 30, 2021