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Appeal - Grounds - Court's Failure to Test Issue. R. v. Habib
In R. v. Habib (Ont CA, 2024) the Ontario Court of Appeal allows a sentencing appeal, here regarding gun possession offence guilty pleas.
Here the court found a fairness breach when, during a 'Gardiner hearing', the judge found that they 'intended to shoot' someone without requiring that such evidence being presented or cross-examined on:(1) The Sentencing Judge Breached the Right to Be Heard
[20] The appellant argues that the sentencing judge breached the right to be heard by finding as an aggravating fact that he intended to shoot the pizza store employee during the altercation. I agree. Because the Gardiner hearing did not address this issue, the appellant was not given an opportunity to make submissions or adduce rebutting evidence concerning it before the sentencing judge made this finding. Thus, the finding breached the appellant’s right to procedural fairness. This on its own requires us to sentence the appellant afresh because it is not inevitable that the sentencing judge would have made the same finding and imposed the same sentence if he had followed a fair process.
[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.
[23] The sentencing judge understood the importance of fairness and tried to honour the appellant’s right to be heard. That is why, when the parties advised him that they could not agree whether the appellant cocked the handgun, he held a hearing and heard submissions before deciding this issue.
[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. . Elkins v. Van Wissen
In Elkins v. Van Wissen (Ont CA, 2023) the Court of Appeal considers (and allows) an appeal from an earlier Divisional Court RTA s.210 appeal on an RTA 57(1) ['Former tenant’s application where notice given in bad faith'] compensation application.
In these quotes the court finds legal error where the tribunal fails to grapple with key required legal issues:(3) Failure to grapple with the issues and the evidence
[67] An administrative decision maker’s reasons must “meaningfully account for the central issues and concerns raised by the parties” and be responsive to the parties’ submissions: Vavilov, at para. 127. The Board reasons do neither. Consequently, they prevent meaningful appellate review and constitute an error of law: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 28; Hanna & Hamilton Construction Co. Ltd. v. Robertson, 2021 ONCA 660, at para. 6.
[68] In this case, among other things, the T5 Application presented the Board with two issues for resolution: (1) did the Vendor Landlords give the s. 49 Termination Notice in bad faith? and (2) did the Purchasers, in good faith, require possession of the Residence for residential occupation? The Board reasons make no mention of the second issue nor the evidence relating to it. Clearly, appellate review was prevented on that issue and, for that reason alone, the Board erred in law.
[69] In addition, however, the Board reasons on the first issue are so deficient as to constitute legal error. The Board made no attempt to grapple with the body of evidence adduced, or the Tenants’ submissions on whether the Vendor Landlords gave the s. 49 Termination Notice in bad faith. Instead, the Board simply recited the Vendor Landlords’ assertion that when they gave the Tenants the s. 49 Termination Notice, there was no reason to believe it was not the purchasers’ intention to have a family member reside in the Residence.
[70] Even on the improperly narrow view of the test for bad faith used by the Board, it failed to address the evidence adduced on this issue. That evidence includes: (1) the Vendor Landlords’ receipt of the Form 160, in which one of the Original Purchasers stated that he was a real estate salesperson as well as one of the Original Purchasers, and stated, “Being a partner, we are buying this property as a future development”; and, (2) the Original Purchasers’ bald assertion that they intended the Residence for personal use.
[71] Had the Board approached the first issue correctly, it would have considered the relevant circumstances both before and after serving the s. 49 Termination Notice. In addition to the two evidentiary considerations noted above, the Board would have had to consider that: prior to closing, the Vendor Landlords and/or their lawyer knew title to the Property was to be taken in the name of a corporation and a corporation cannot personally occupy residential premises; the Residence remained vacant for five months after closing; it was then occupied for only about 25 days by one of the Original Purchasers’ sons; and, thereafter, the Residence was rented out for a higher price than that which the Tenants had paid.
[72] The failure of the Board to address the evidence on the central issue of the Vendor Landlords’ bad faith prevents appellate review and constitutes an error of law.
C. Result
[73] Because the Board failed to make the factual findings necessary to fairly resolve the Tenants’ T5 Application, this court is not in a position to decide it. Accordingly, I would remit it to the Board for a redetermination in accordance with these reasons. . Puma SE v. Caterpillar Inc.
In Puma SE v. Caterpillar Inc. (Fed CA, 2023) the Federal Court of Appeal cites authority that courts are presumed to consider all the evidence adduced:[32] ... First, it is a well-established principle that a judge is presumed to have considered all of the evidence (Housen at para. 46; Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, 387 C.R.R. (2d) 1 at para. 67 (Mahjoub)). ... . Hayward v. Hayward
In Hayward v. Hayward (Ont CA, 2021) the Court of Appeal considered the appeal argument that failure of the trial judge to allow argument on an issue was good grounds for appeal:[4] We agree with the appellant that it was not open to the trial judge to find that the funds Alex paid for the Malibu were a gift and not a loan. As Doherty J.A. noted in Rodaro v. Royal Bank of Canada (2002), 2002 CanLII 41834 (ON CA), 59 O.R. (3d) 74, at paras. 61-63, a trial judge’s reliance on a ground that was not argued is fundamentally unfair and potentially unreliable because it was not tested through the adversarial process. The law prescribes tests for determining when the payment of funds is a gift, but the trial judge did not apply or allow the parties to address those tests before determining that Alex’s payment for the Malibu was a gift, not a loan. The appeal on this ground is allowed, and we remit the issue to the Superior Court for trial.
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