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Fairness - Criminal. 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.
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