|
Criminal - Appeals - Bifurcation. R. v. D.L.
In R. v. D.L. (Ont CA, 2024) the Ontario Court of Appeal considered bifurcation of criminal appeals, here between conviction and sentence:[9] This court ordinarily hears conviction and sentence appeals together. As Tulloch J.A. (as he then was) noted in R. v. M.W., 2015 ONCA 644, 340 O.A.C. 399, at para. 6:It is preferable that the appeals be heard together. The advantages of this order of proceeding are clear. It enhances the efficient use of the court’s resources, avoids the possibility of contradictory outcomes, and ensures that the panel hearing the sentence appeal has the benefit of the full context for the appeal.
Tulloch J.A. also recognized that this rule is not absolute, but as he explained, “[a]ppeals from conviction and sentence should only be bifurcated where there are compelling reasons to do so”: M.W., at para. 6. [10] D.L. argues that in the particular circumstances of this case there are compelling reasons to order that the Crown’s sentence appeal be heard after the non-sentence appeals have been heard and decided. He agrees that the non-sentence appeals should still be heard together.
[11] The core of D.L.’s argument is that if one or both of the non-sentence appeals is successful, either in whole or in part, this could significantly alter the sentencing landscape by changing the number or nature of his convictions. He submits that since counsel cannot anticipate or address all the possible permutations of potential outcomes, it would be both fairer and more efficient to postpone the sentence appeal hearing until counsel know exactly on what offences sentence is being imposed.
[12] There is some force to this argument, since there are indeed multiple possible sentencing scenarios that neither party has addressed in their appeal factums. As I have noted, the Crown’s appeal factum only addresses the sentences it seeks to have imposed if D.L.’s conviction appeal is dismissed in its entirety, and its own request to have his acquittals on three of the sexual offences set aside and convictions entered on these charges either succeeds or fails. D.L.’s appeal factum also only addresses these two scenarios, although he also invites the panel to request further submissions from counsel if it allows the Crown’s appeal from his acquittals.
[13] In his factum on this motion, D.L. goes further and argues that if the Crown’s appeal from his acquittals is allowed and convictions are entered on the three disputed sexual offence charges, “[t]he evidentiary record from the sentencing hearing would be insufficient”, and he would “very likely request leave from this Court to pursue and adduce fresh evidence to support submissions for this entirely different sentencing landscape.” He also contends that the panel would likely require further submissions from counsel if his own conviction appeal were allowed in part and acquittals were entered on only some, but not all, of the non-sexual offence counts.
[14] In essence, D.L.’s argument is that because there is a possibility that the panel may decide to hear further submissions on sentence, or receive further evidence, after the non-sentence appeals have been heard and decided, it would be more efficient to bifurcate the sentence appeal from the non-sentence appeals in advance, rather than requiring the panel “to be reconstituted at a later date to review further materials, including potential fresh evidence, and possibly for oral argument.” D.L. also points out that since there are possible scenarios in which the sentence appeal is not reached at all – e.g., if a new trial is ordered – ordering bifurcation now could avoid the panel having to review materials for what turns out to be a moot sentence appeal.
[15] While I agree with D.L. that there are imaginable scenarios in which having the sentence and non-sentence appeals heard together by the same panel could prove to be more cumbersome and inefficient than bifurcating the non-sentence and sentence appeals, the potential advantages of bifurcating the appeals from the outset must be balanced against the potential disadvantages.
[16] Among other things, if the sentence appeal ultimately does have to be decided on its merits, bifurcating the appeals would require two different panels to review the same trial record. This would be particularly inefficient if none of the scenarios materialize that might require the panel hearing the sentence appeal to request further submissions or permit further evidence to be adduced. Moreover, as Crown counsel points out, delaying the hearing of the Crown’s sentence appeal to a time when D.L. will have already served a substantial portion of his conditional sentence may make it more difficult for the Crown to successfully argue that he should now be incarcerated: see e.g., R. v. M.M., 2022 ONCA 441, at para. 20.
[17] Another significant consideration that weighs against D.L.’s argument for bifurcating the sentence appeal from the non-sentence appeals is that even if the panel hearing the combined appeals were to decide that it cannot properly or fairly decide the sentence appeal without receiving further submissions or permitting the parties to adduce fresh evidence, the panel will have the option of remitting any further sentencing proceedings to be conducted in the trial court.
[18] The scenarios where D.L. maintains that bifurcating the appeals would be more efficient are all ones where at least one of the non-sentence appeals is not entirely dismissed. If his own conviction appeal is allowed in its entirety and all of the non-sexual offence convictions are set aside, the Crown’s sentence appeal will become moot. If D.L.’s conviction appeal is only partly successful, and only some of the non-sexual offence convictions are set aside, the panel will have the option of remitting his case to the trial court for resentencing pursuant to ss. 686(1)(b)(i) and 686(3)(b) of the Criminal Code, R.S.C. 1985, c. C-46. Similarly, if the Crown’s appeal from D.L.’s acquittals is allowed and the panel substitutes convictions on one or more of the sexual offences, the panel would also have the option of remitting the matter to the trial court for sentencing pursuant to s. 686(4)(b)(ii) of the Criminal Code.
[19] Accordingly, I do not agree with D.L. that on these scenarios the sentence appeal would inevitably need to be adjourned for a further hearing before the same panel at a later date. Even if the panel decides that further sentencing submissions or evidence are necessary – which is itself not a certainty – the panel will have the choice of remitting the case to the trial court for further sentencing proceedings.
[20] It follows that I am not persuaded that the significant potential disadvantages of bifurcating the appeals are outweighed by the potential advantages. In my view, this is not a case where there are “compelling reasons” for having the sentence appeal heard separately from the non-sentence appeals: M.W., at para. 6.
|
