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Fairness - Criminal. R. v. Gorges
In R. v. Gorges (Ont CA, 2024) the Ontario Court of Appeal allowed a conviction appeal from charges of "kidnapping, assault, assault with a weapon, uttering death threats and a human trafficking", here on the trial court's application of CCC 276 ['Evidence of complainant’s sexual activity'].
Here the court applies the originally-administrative doctrine of 'procedural fairness' to the criminal context, here where the trial judge made an important ruling without the parties having an oppourtunity to make submissions on it:[62] In this case, I find that the trial judge’s decision to exclude all of the evidence “in relation to [the complainant]’s sexual practices and alleged involvement in a sex trade, possibly encompassing the origin of the debt” fundamentally jeopardized the fairness of the appellant’s trial. As such, it is an irregularity that constitutes a miscarriage of justice.
[63] The trial judge’s rejection of this evidence after closing submissions without giving notice of her concerns and without an opportunity to make submissions breached the appellant’s right to a fair trial. As noted above, the evidence was elicited through cross-examination of the complainant, at which time neither the court nor the Crown raised any significant objections. The appellant’s defence was premised on attacking the complainant’s credibility. In doing so, he relied heavily on the inconsistencies in her evidence, including the portions of her evidence that the trial judge ultimately excluded. The appellant’s reliance on these portions of the complainant’s evidence was clear from the cross-examination of the complainant and, most notably, from his closing submissions.
[64] The trial judge’s decision to exclude the evidence at issue without giving the parties notice or an opportunity to make submissions does not fall within her authority to control the trial proceedings. Such authority is not absolute and requires compliance with the law and procedural fairness: R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 49. In the context of proceedings leading to a conviction, even the exercise of a “highly discretionary” judicial power can constitute a miscarriage of justice when it causes unfairness: Tayo Tompouba, at para. 73.
[65] In this case, the trial judge’s approach breached the appellant’s right to procedural fairness because he was never given an opportunity to address the admissibility of the evidence even after it was clear from his closing submissions that it constituted a significant aspect of his attack on the complainant’s credibility: see R. v. Perkins, 2016 ONCA 588, 339 C.C.C. (3d) 438, at para. 35; R. v. Foisy (2000), 2000 CanLII 16959 (ON CA), 51 O.R. (3d) 161 (C.A.), at para. 7; R. v. Wetzel, 2013 SKCA 143, 427 Sask. R. 261, at para. 98. Throughout the trial, and especially on receipt of the appellant’s closing submissions, it would have been clear to the trial judge that excluding the evidence as she did could reasonably be expected to impair his defence. When the trial judge decided to exclude evidence that was heard at trial and relied on in closing submissions, she should have at least invited the parties to make submissions on this issue.
[66] The procedural unfairness in this case closely resembles that which caused the Alberta Court of Appeal to quash the convictions and order a new trial on the basis of miscarriage of justice in R. v. Arens, 2016 ABCA 20, 334 C.C.C. (3d) 379. In that case, a voir dire was held to determine whether some evidence had been obtained in breach of the accused’s rights under the Canadian Charter of Rights and Freedoms. The Crown conceded breaches of ss. 8 and 9, but the trial judge admitted the evidence despite these breaches following the analysis prescribed by R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. Then, without giving advance notice to the parties, the trial judge stated in his reasons for conviction that he had reversed his earlier voir dire ruling and held that there had been no Charter breach. In the eyes of the majority on appeal, the trial judge’s failure to invite submissions before reversing himself was a “fundamental procedural error” that amounted to a miscarriage of justice and the proviso could not apply: at paras. 16-19, 25-29, and 34.
[67] I acknowledge that the improper exclusion of evidence does not always amount to a miscarriage of justice. In some cases, such an exclusion may be more properly characterized as an error of law. In those circumstances, appellate courts can consider whether the curative proviso in s. 686(1)(b) of the Criminal Code should apply, including whether the error is so minor that it would not be expected to affect the result or whether the evidence against the appellant is overwhelming. However, the legal error in this case is compounded by the lack of procedural fairness. This case is therefore distinguishable from those in which cross-examination was improperly curtailed, but the reviewing court can still determine that further cross-examination on the areas that should have been permitted would have made no difference to the verdict: see e.g., R. v. R.V., 2021 SCC 10, 402 C.C.C. (3d) 295; R. v. Samaniego, 2022 SCC 9, 412 C.C.C. (3d) 7. Here, the appellant’s ability to cross-examine the complainant was not meaningfully impaired. Rather, the unfairness arises out of allowing him to elicit evidence through cross-examination and rely on that evidence in his defence only to find out, as the trial judge is delivering her reasons for judgment, that a significant portion of the evidentiary foundation for his closing was excluded without notice or an opportunity to address the issue.
[68] Ultimately, the total exclusion of evidence related to the complainant’s alleged involvement in the sex trade without notice, and without an opportunity to make submissions or for the appellant to re-orient his defence undermined the fairness of the trial. This was a miscarriage of justice. The proviso cannot be applied to uphold the convictions. . 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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