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Criminal - Appeals - Remedy. R. v. Snowden
In R. v. Snowden (Ont CA, 2023) the Court of Appeal considered the criminal law of appellate remedies:I. THE REMEDY
[120] The Crown submitted that, if successful on this appeal, a new hearing under Part XXIV should be ordered. This is due to the fact that, after determining the SPIO issue, the sentencing judge did not consider the further criteria in s. 753(1)(a) and (b).
[121] Typically, appellate courts have no power to remit a case back to the sentencing judge for a new hearing or further consideration: see R. v. Abdelrazzaq, 2023 ONCA 231, at para. 5. Section 687(1) of the Criminal Code empowers the court to either allow the appeal and “vary the sentence within the limits prescribed by law”, or dismiss the appeal.
[122] Appeals taken under Part XXIV are different. Section 759(3) provides:(3) The court of appeal may
(a) allow the appeal and
(i) find that an offender is or is not a dangerous offender or a long-term offender or impose a sentence that may be imposed or an order that may be made by the trial court under this Part, or
(ii) order a new hearing, with any directions that the court considers appropriate; or
(b) dismiss the appeal. [Emphasis added.] [123] This is an appropriate case in which to order a new hearing. I have identified the legal error in the sentencing judge’s interpretation of an SPIO, turning on the causation issue. But this marks only the beginning of the required analysis. Sentencing judges must then engage in a qualitative analysis of the manner and circumstances in which the predicate offences were committed, as discussed above. This is a factual inquiry, best left to a judge of first instance for determination.
[124] Moreover, given her conclusion on the SPIO issue, the sentencing judge, understandably, did not address the other criteria in ss. 753(1)(a) and (b). These too must be addressed at the new hearing, not for the first time on appeal.
[125] Lastly, it was somewhat less than clear what items of child pornography in the representative sample applied to which offence committed by the respondent – in particular, which formed the making available offence. This may need to be qualified in order to permit the contextual analysis that is required.
[126] If it is feasible, the case should be remitted back to the same sentencing judge. She has already considered the voluminous evidence adduced at the hearing, and has made certain factual findings, including some relating to credibility. With the cooperation of the parties, significant efficiencies might be achieved before the same sentencing judge.
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