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Criminal - Sentencing - Remedy. R. v. Habib
In R. v. Habib (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal appeal, here regarding gun possession offence guilty pleas, and considered the appropriate fairness remedy - particularly in light of Cardinal v Kent Institution:[27] Because the sentencing judge breached the right to be heard, we must sentence the appellant afresh and without deference to the existing sentence. Under this remedial rule, which this court endorsed in R. v. Cook, 2013 ONCA 467, 307 O.A.C. 280, at paras. 37-38 and 43, the appellant need not show that the breach impacted the sentence as Lacasse requires for errors in principle. This is a specific application of the general rule from Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643, that breaching the right to be heard invalidates decisions even if a new hearing is unlikely to lead to a different result. Cardinal adopted this rule because the right to be heard is an “independent, unqualified” entitlement to fair treatment that is distinct from the decision’s substantive appropriateness.[1] See at p. 661; see also Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653, at p. 674.
[28] The narrow exception to this remedial rule does not apply. Under that exception, there is no need to decide the matter afresh if it is inevitable that the result would be the same if a fair process were followed. See Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), [1994] 1 S.C.R. 202, at pp. 228-229; R. v. Papadopoulos (2005), 2005 CanLII 8662 (ON CA), 201 C.C.C. (3d) 363 (Ont. C.A.), at paras. 24-26. That is not inevitable here. While there was evidence supporting this finding, other evidence contradicted it. Further, the standard of proof barred the sentencing judge from making this finding unless he determined that there was no reasonable doubt on this issue. See Gardiner, at pp. 414-416. If the sentencing judge had given notice and heard the appellant’s submissions and, potentially, his testimony, he may have been convinced that the appellant did not intend to kill the employee or, even if he was not so convinced, it may still have raised a reasonable doubt. This, in turn, may have caused him to impose a lower sentence because he treated the finding as an important aggravating factor. That possibility is sufficient and, as Cardinal teaches, we should not speculate about what the result of a fair process might have been.
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