The Defence Toolkit – November 13, 2021

This week’s top three summaries: R v Parranto, 2021 SCC 46: #start-point sentence, R v Hudson, 2021 ONCA 772: order of #testimony, and R v Toews, 2021 BCCA 405: functus officio

R v Parranto, 2021 SCC 46

[November 12, 2021] Sentencing: Start-Point Sentences – Error in Principle to Fail to Follow or Not? [Plurality Reasons by Brown and Martin JJ., with Wagner C.J. and Kasirer concurring, Concurring  Reasons by Karakatsanis J. with Abella J. concurring. Dissent: Moldaver, Côté, Rowe JJ.]

AUTHOR’S NOTE: This is the latest salvo in the Alberta Court 20+ year legal insurrection regarding start-point sentences being a principled basis to intervene on appeal. SCC has continually said failure to follow a start-point is not an error in principle allowing appellate intervention. ABCA continually issues judgments saying the opposite quickly following on the heels of any SCC authority to the contrary. In this SCC addition to this dispute, the majority appears to be maintaining its core position, directly addressing the ABCA and specifically overruling a foundational sentencing decision in this province: R v Arcand, 2010 ABCA 363. Per reasons from the two Justices from this province, the plurality says that start-points and sentence ranges are fine for use as a mechanism in sentencing in aid to achieving proportionality as a first step before individualising a sentence. However, sentencing appeal courts must respect the deferential standard of review on sentencing, starting points are NOT binding precedents, and sentencing courts must not intervene unless the sentence is demonstrably unfit the sentencing judge made an error in principle that impacted sentence.

The disappointing aspect of this decision is that it highlights the flexibility of whether a sentence is “demonstrably unfit.” The Brown and Martin plurality held despite their outline of the principles that: a 7-year sentence was demonstrably unfit for Felix (increase to 10 years upheld), and an 11-year sentence was also demonstrably unfit for Parranto (increase to 14 years upheld). Despite agreeing with all these principles, the concurring reasons of Karakatsanis J. (Abella J. concurring) come to the opposite conclusion: the original sentences were not demonstrably unfit. If a majority of the Supreme Court cannot agree on what it means, lower courts will continue to struggle no doubt. Perhaps the real takeaway is in paragraph 9: “More of an art than a science, sentencing requires judges to consider and balance a multiplicity of factors.”

What remains to be seen is what the ABCA does with this. Should we expect a new restatement about start-point sentencing or some rapprochement? In the past, despite clear direction to the contrary, the ABCA has refused to budge from its firm start-point approach.

Facts

[2] The appellants, Patrick Douglas Felix and Cameron O’Lynn Parranto, pleaded guilty to various offences arising out of unrelated drug trafficking operations, including fentanyl trafficking contrary to s. 5(1) and s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). Both appellants were found to be operating at the “wholesale” commercial level. At sentencing, Mr. Felix received a global 7‑year sentence (2019 ABQB 183), and Mr. Parranto received a global sentence of 11 years (2018 ABQB 863). The Crown appealed the sentences to the Court of Appeal of Alberta, where a five‑member panel heard the appeals jointly for the express purpose of setting a “starting point” for wholesale fentanyl trafficking. In separate decisions released concurrently, the Court of Appeal set a 9‑year starting point for wholesale fentanyl trafficking and increased Mr. Felix’s sentence to 10 years (2019 ABCA 458, 98 Alta. L.R. (6th) 136), and Mr. Parranto’s to 14 years (2019 ABCA 457, 98 Alta. L.R. (6th) 114).

Overview

[3] The appellants and several interveners sought to discredit the starting‑point approach by arguing that it has undesirable results, including higher rates of incarceration for Indigenous and other offenders. These criticisms lose their force, however, if starting points are properly treated as non‑binding guidance by both sentencing and appellate courts. Further, such criticisms speak to the risks inherent in using any form of quantitative sentencing guidance, including sentencing ranges. But these risks can be avoided if appellate courts adhere to the deferential standard of review in sentencing appeals, and if this Court provides clear direction on how appellate courts should account for starting points when reviewing sentences for errors in principle and demonstrable unfitness. What follows, therefore, is not an endorsement of starting points as they have sometimes been enforced at the Court of Appeal of Alberta, but rather a revised understanding, bringing them into conformance with the standard of appellate review and principles and objectives of sentencing. [Emphasis by PM]

[4] Accordingly, there is no need to disavow the starting‑point approach to sentencing. Sentencing ranges and starting points are simply different tools that assist sentencing judges in reaching a proportionate sentence. It is not for this Court to dictate which of these tools can or cannot be used by appellate courts across the country. Provincial appellate courts should be afforded the respect and latitude to provide their own forms of guidance to sentencing judges, as long as that guidance comports with the principles and objectives of sentencing under the Criminal Code, R.S.C. 1985, c. C‑46, and with the proper appellate standard of review.

[5] Nor would we interfere with the sentences imposed upon Mr. Felix and Mr. Parranto at the Court of Appeal. In our respectful view, the sentences imposed on these offenders by the respective sentencing judges were demonstrably unfit. The Court of Appeal’s intervention was therefore appropriate.

Principles of Sentencing

[10] The goal in every case is a fair, fit and principled sanction. Proportionality is the organizing principle in reaching this goal. Unlike other principles of sentencing set out in the Criminal Code, proportionality stands alone following the heading “Fundamental principle” (s. 718.1). Accordingly, “[a]ll sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (R. v. Friesen, 2020 SCC 9, at para. 30). The principles of parity and individualization, while important, are secondary principles.

[11] Despite what would appear to be an inherent tension among these sentencing principles, this Court explained in Friesen that parity and proportionality are not at odds with each other. To impose the same sentence on unlike cases furthers neither principle, while consistent application of proportionality will result in parity (para. 32). This is because parity, as an expression of proportionality, will assist courts in fixing on a proportionate sentence (para. 32). Courts cannot arrive at a proportionate sentence based solely on first principles, but rather must “calibrate the demands of proportionality by reference to the sentences imposed in other cases” (para. 33). [Emphasis by PM]

[14] … provincial appellate courts must promote stability in the development of the law while providing guidance to lower courts to ensure the law is applied consistently in a particular jurisdiction (Lacasse, at para. 37). In carrying out this role, appellate courts may provide guidance to assist sentencing judges in reaching a proportionate sentence that properly balances parity and individualization (para. 2). Appellate courts are well‑positioned to provide such guidance because of their appreciation of “overall sentencing practices, patterns and problems” in their jurisdiction (R. v. Arcand, 2010 ABCA 363, 40 Alta. L.R. (5th) 199, at para. 153). Appellate guidance may take the form of quantitative tools (such as sentencing ranges and starting points), non‑quantitative guidance explaining the harms entailed by certain offences, or a mix of both (see, e.g., Friesen, at paras. 42‑105 and 114‑16; R. v. Williams, 2019 BCCA 295, at paras. 64‑66 and 71 (CanLII); R. v. Sandercock (1985), 1985 ABCA 218 (CanLII), 40 Alta. L.R. (2d) 265 (C.A.), at pp. 270-71).

[16] Quantitative appellate guidance generally takes one of two forms: starting points, or sentencing ranges. These tools are best understood as “navigational buoys” that operate to ensure sentences reflect the sentencing principles prescribed in the Criminal Code. Busy sentencing judges face a challenging task; the Code often provides for a wide range of possible sentences and the factual circumstances of each case vary infinitely. Sentencing must begin somewhere, and both starting‑point and range methodologies assist sentencing judges by providing a place to start in the form of either a single number or a range. As this Court has recognized, however, “there is no such thing as a uniform sentence for a particular crime” (M. (C.A.), at para. 92). Neither tool relieves the sentencing judge from conducting an individualized analysis taking into account all relevant factors and sentencing principles. [Emphasis by PM]

Alberta Process for Re-Consideration of Start-Point Sentences

[27]  In contrast, in Alberta, the Court of Appeal has required parties to formally apply for reconsideration of a starting point under r. 16.27 of the Alberta Rules of Court, A.R. 124/2010. Our colleague Rowe J. views this procedure as a judicial mandate and an expression of the Court of Appeal’s “aggressive enforcement” of starting points (para. 164). The reconsideration procedure, however, is a legislative requirement of general application (Alberta Rules of Court, r. 16.27). The process is a judicial one whereby the Court of Appeal weighs several criteria in deciding whether to “reconsider” the starting point, such as whether the starting point is new or old, has been disapproved of or is contrary to decisions of other courts of appeal, was created by overlooking binding statute or authority, contains some “simple, obvious, demonstrable flaw”, or was established in Reasons for Judgment Reserved or a Memorandum of Judgment (Arcand, at para. 199). With the exception of the final criterion, all of these considerations are relevant in determining whether the starting point for a particular offence should be recalibrated.

[28] While our colleague finds it difficult to reconcile the reconsideration procedure with the standard of review, the answer, in light of this Court’s direction on the standard of review and the non‑binding nature of starting points, is clear. Parties seeking to challenge a starting point need not have resort to the procedure, because starting points are not binding precedents. If the procedure is used, the effect of a successful reconsideration application is merely to re‑establish the point from which trial judges begin their thinking. Such applications provide the Court of Appeal with the opportunity to consider the sentencing landscape to determine if the starting point still provides relevant appellate guidance and accurately reflects the gravity of the offence. To the extent the reconsideration procedure is perceived to be necessary to change starting points because they are binding precedents (Arcand, at para. 199; R. v. Melnyk, 2014 ABCA 313, 580 A.R. 389, at para. 2), this perception cannot survive Lacasse and Friesen, as it is mistaken in law. [Emphasis by PM]

Basis for Appellate Intervention in Sentence

[29] It is trite law that appellate courts cannot interfere with sentencing decisions lightly (see R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 23, citing Shropshire, at para. 48; R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132, at para. 25; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 14; Nasogaluak, at para. 46; Lacasse, at para. 39; and Friesen, at para. 25). Sentencing judges are to be afforded wide latitude, and their decisions are entitled to a high level of deference on appeal (Lacasse, at para. 11). It remains the case that, where a judge deviates from a sentencing range or starting point, no matter the degree of deviation, this does not in itself justify appellate intervention. [Emphasis by PM]

[30] It bears emphasizing that the sentencing judge’s discretion includes the choice of a sentencing range or of a category within a range, and that this exercise of discretion cannot in itself constitute a reviewable error (Lacasse, at para. 51). It is an error of law for an appellate court to intervene merely on the ground that it would have placed the offence in a different range or category. Unless a sentence is demonstrably unfit or the sentencing judge made an error in principle that impacts the sentence, an appellate court must not vary the sentence on appeal (paras. 11 and 67). The focus of the demonstrable unfitness inquiry is on whether the sentence is proportionate, not whether the sentencing judge applied the correct starting point, sentencing range or category within a range (Lacasse, at paras. 51 and 53; Friesen, at para. 162). [Emphasis by PM]

[31] Following the recent judgments of this Court in Lacasse and Friesen, we are of the view that these appeals does not require the Court to chart a new path, but rather requires us to reiterate and reinforce the standard for appellate intervention. In particular, the Court must clarify the role that sentencing ranges or starting points play in appellate review of sentences.

[32] … In Lacasse, at para. 67, this Court stated that “a deviation from such a range or category is not an error in principle and cannot in itself automatically justify appellate intervention unless the sentence that is imposed departs significantly and for no reason from the contemplated sentences” (emphasis added).

[33] While we agree that the Court of Appeal’s comments in Arcand do closely mirror this Court’s direction in Lacasse,there is an important distinction between Arcand and this Court’s sentencing jurisprudence. The clear direction from this Court is that “[a]ppellate courts cannot treat the departure from or the failure to refer to a range of sentence . . . as an error in principle” (Friesen, at para. 37 (emphasis added)). The Court of Appeal in Arcand, however, suggested the contrary, stating “that sentencing judges will give due consideration to those starting points and the process that starting point sentencing entails” (at para. 273 (emphasis added)). To resolve any possible ambiguity that could have survived Friesen, we say this: the directions relating to the binding nature of starting points or the starting‑point approach as set out in Arcand have been overtaken by Lacasse and Friesen and no longer reflect the required standard of appellate review. [Emphasis by PM]

[34] … there is no one uniform approach to sentencing in Canada. Attempts to create a single uniform approach are therefore misguided. Different cases may require different methods, and selecting the method of sentencing is within the discretion of the sentencing judge. [Emphasis by PM]

The Core Principles Going Forward

1.      Starting points and ranges are not and cannot be binding in theory or in practice (Friesen, at para. 36);

2.      Ranges and starting points are “guidelines, not hard and fast rules”, and a “departure from or failure to refer to a range of sentence or starting point” cannot be treated as an error in principle (Friesen, at para. 37);

3.      Sentencing judges have discretion to “individualize sentencing both in method and outcome”, and “[d]ifferent methods may even be required to account properly for relevant systemic and background factors” (Friesen, at para. 38, citing Ipeelee, at para. 59); and,

4.      Appellate courts cannot “intervene simply because the sentence is different from the sentence that would have been reached had the range of sentence or starting point been applied” (Friesen, at para. 37). The focus should be on whether the sentence was fit and whether the judge properly applied the principles of sentencing, not whether the judge chose the right starting point or category (Friesen, at para. 162).

These principles settle the matter. Contrary to the Crown’s submission, it is not an open question whether sentencing judges are free to reject the starting‑point approach. Sentencing judges retain discretion to individualize their approach to sentencing “[f]or this offence, committed by this offender, harming this victim, in this community” (R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at para. 80 (emphasis in original)). There is no longer space to interpret starting points (or ranges) as binding in any sense. [Emphasis by PM]

[38] As we have already stated, sentencing is an individualized process, and parity is secondary to proportionality. Therefore, departures from the starting point or sentences above or below the range are to be expected. Even significant departures are not to be treated as a prima facie indication of an error or demonstrable unfitness. Fitness is assessed with reference to the principles and objectives of sentencing in the Code, not with reference to how far the sentence departs from quantitative appellate guidance.\

[40] … As noted, it is not an error in principle for the sentencing judge to fail to refer to a starting point. Since starting points and ranges reflect the gravity of the offence, however, the sentencing judge’s reasons and the record must allow the reviewing court to understand why the sentence is proportionate despite a significant departure from the range or starting point. This applies regardless of whether the reasons refer to the starting point or not. At the very least, the appellate court must be able to discern from the reasons and the record why the sentence is fit in the circumstances of the offence and the offender. We emphasize, however, that it is inappropriate for appellate courts to “artificially constrain sentencing judges’ ability to impose a proportionate sentence” by requiring “exceptional circumstances” when departing from a range (Friesen, at paras. 111‑12; R. v. Burnett, 2017 MBCA 122, 358 C.C.C. (3d) 123, at para. 26). Departing from a range or starting point is appropriate where required to achieve proportionality.

[41] In Arcand, the Court of Appeal asked whether “starting point sentencing has a meaningful function in Canada” (para. 116). The answer is that it does, but that function is not to bind trial judges or to licence boundless appellate intervention….

Sentencing at the Trial Level

[44] While not binding, however, sentencing ranges and starting points are useful tools because they convey to sentencing judges an appreciation of the gravity of the offence. And, as we have already observed, they offer judges a place to begin their thinking. When applying these tools, sentencing judges must individualize the sentence in a way that accounts for both aspects of proportionality: the gravity of the offence and the offender’s individual circumstances and moral culpability. At the stage of individualizing the sentence, the sentencing judge must therefore consider “all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them” (Ipeelee, at para. 75). Those factors and circumstances may well justify a significant downward or upward adjustment in the sentence imposed.

[45] Starting points also do not relieve the sentencing judge from considering all relevant sentencing principles. The principles of denunciation and deterrence are generally built into starting points and reflected in ranges, but those objectives “cannot be allowed to obliterate and render nugatory or impotent other relevant sentencing objectives” (R. v. Okimaw, 2016 ABCA 246, 340 C.C.C. (3d) 225, at para. 90). When conducting an individualized analysis, sentencing judges are expected to account for other relevant sentencing objectives, including rehabilitation and restraint. Indeed, this Court has held that the 1996 sentencing reforms were intended to both ensure courts consider restorative justice principles and to address the problem of over‑incarceration in Canada (Gladue, at para. 57; Proulx, at paras. 16‑20). Sentencing judges have discretion over which objectives to prioritize (Nasogaluak, at para. 43; Lacasse, at para. 54) and may choose to weigh rehabilitation and other objectives more heavily than “built-in” objectives like denunciation and deterrence. Appellate courts should not lose sight of these principles — nor the deferential standard of review — when reviewing sentences that depart from a starting point or range. [Emphasis by PM]

[46] … Appellate sentencing guidance ought not to purport to pre‑weigh or “build‑in” any mitigating factors (contra, Arcand, at para. 135). Likewise, since starting points are intended to reflect the gravity of the offence and the resulting need for deterrence and denunciation, they should not be viewed as incorporating sentencing principles such as restraint or rehabilitation, contrary to the suggestion in Arcand, at para. 293. Where sentencing judges choose to refer to the starting point or range, they are not precluded from considering any factor that is “built in” as mitigating in the individual circumstances, and they retain the discretion to consider and weigh all relevant factors in their global assessment of a fit sanction. This comports with the principle that the sentencing judge must always consider all relevant individual circumstances in reaching a fit sentence tailored to the offender before the court. [Emphasis added by PM]

[47] Moreover, when setting starting points and ranges, appellate courts must be mindful of what is built into those forms of guidance. Any inclusion of characteristics of an archetypal offender could impede individualization of sentences, rendering the guidance inconsistent with the standard of review (M. (C.A.), at para. 90; Nasogaluak, at para. 43) and with Parliament’s express choice to vest sentencing judges with the discretion to determine a fit sanction (Code, s. 718.3(1)). … [Emphasis by PM]

Start Points and Gladue

[49] … When applied properly, starting points do not prevent judges from giving effect to s. 718.2(e) and the principles in Gladue, as demonstrated by R. v. Skani, 2002 ABQB 1097, 331 A.R. 50, a case involving the three‑year starting point from Johnas, and R. v. Paul, 2016 ABPC 113, a case engaging the eight‑year starting point from R. v. Matwiy (1996), 1996 ABCA 63 (CanLII), 178 A.R. 356 (C.A.). In Paul, for example, Gladue factors played a central role in assessing the moral culpability of the offender, ultimately justifying a downward departure from the eight‑year starting point to a sentence of five years (para. 56). These examples show that starting‑point jurisdictions have been able to integrate Gladue principles into the starting‑point methodology (see also R. v. Beardy, 2017 MBPC 32, at paras. 9, 12 and 16 (CanLII), aff’d 2018 MBCA 52).

[50] When reviewing sentences imposed on Indigenous offenders, appellate courts must bear in mind that a “formalistic approach to parity” should not be allowed to “undermine the remedial purpose of s. 718.2(e)” (Ipeelee, at para. 79). Whether starting points or ranges are used, sentencing judges are under an obligation to factor in the “unique circumstances of an Aboriginal offender which could reasonably and justifiably impact on the sentence imposed” (para. 72; see also R. v. Park, 2016 MBCA 107, 343 C.C.C. 3(d) 347, at para. 24). As recognized by the Court of Appeal of Alberta in R. v. Swampy, 2017 ABCA 134, 50 Alta. L.R. (6th) 240, at para. 36, “[t]here can be no sound proportionality analysis in the case of an Aboriginal offender without considering the impact of the offender’s Aboriginal heritage on his moral culpability.” The Court of Appeal has also stated that it is an error in principle for a sentencing judge to refer to Gladue factors without considering the impact of those factors on moral blameworthiness (R. v. Bird, 2021 ABCA 243, at para. 20 (CanLII)).

Application Here

[55] In our view, the Court of Appeal did not err in setting a starting point for wholesale fentanyl trafficking. Relying heavily on para. 57 of Lacasse, in which this Court stated that sentencing ranges are “nothing more than summaries of the minimum and maximum sentences imposed in the past”, Mr. Felix argues that there was insufficient case law on sentencing for fentanyl trafficking to allow the Court of Appeal to create a “prospective” starting point (A.F. (F.), at paras. 86‑87). …

[57] It follows that provincial appellate courts are not restricted to providing guidance only where a historical body of precedent has developed; they may also revise the sentencing landscape. …

Concurring Reasons of Karakatsanis J (Abella J concurring):

[205] I have read the reasons of my colleagues Brown and Martin JJ. I agree with their analysis, from paras. 9 to 54, that starting points are a permissible form of appellate sentencing guidance, provided that starting points are not used to curtail the highly deferential sentencing standard of appellate review. However, I do not agree with their disposition to dismiss these two appeals. … [Note: Therefore the reasons at paras 9-54 constitute majority reasons for the decision. This includes all the analysis except the application to the Appellants]

[237]  In other words, whether a sentence is demonstrably unfit is a qualitative rather than a quantitative assessment. What matters is whether the trial judge imposed a proportionate sentence by reasonably appreciating the gravity of the offence and the degree of responsibility of the offender in the specific circumstances of the case: Lacasse, at paras. 58 and 67; Nasogaluak, at para. 44; L.M., at para. 36. If the trial judge has done so then appellate intervention is not justified, regardless of how far the sentence deviates from a range or starting point: Lacasse, at paras. 53 and 67; Brown and Martin JJ.’s reasons, at paras. 29-30 and 38.

[238] In my view, the Court of Appeal was not justified in intervening in either case. None of the purported errors in principle are borne out on a fair reading of the trial judge’s reasons and neither sentence was demonstrably unfit. …

[243] In sum, while the original sentence certainly could have been longer, the trial judge made no errors in principle that impacted the sentence and it was not demonstrably unfit. I would therefore allow the appeal and restore the original sentence.

[252] Again, Parranto certainly could have received a longer sentence but that is not the test. The trial judge did not err in principle and the sentence was not demonstrably unfit. The original sentence should be restored.

R v Hudson, 2021 ONCA 772

[November 2, 2021] Order of Defence Witnesses, Alternate Suspect Requirements [Reasons by Watt J.A., with Doherty, K. van Rensburg, M.L. Benotto, and I.V.B. Nordheimer JJ.A. concurring]

AUTHOR’S NOTE: There is an expectation that at trial where a defence is offered, an accused will testify before any other defence witness. While this is traditional and expected, this appellate authority clearly reinforces that it is not a principle of law. Nor can any trier of fact do anything with this to the detriment of the accused. No inferences are permissible or should be averred to in instructions to juries or closing submissions of prosecutors. Simply put, like the right to silence, this is a no-go area.

This case also provides a good overview of alternate suspect law. It provides a good example of circumstantial evidence being sufficient to implicate another person being a sufficient basis for calling the defence. 

Overview and Background

[2] The appellant was not home when the package arrived. Her ex-boyfriend was there. He accepted delivery and took the package into the house. He told the appellant about the package.

[3] About an hour later, police officers arrived at the appellant’s home. They had a search warrant. They found the package from China. They arrested the appellant’s ex-boyfriend. When the appellant got home, they arrested her too.

[4] A jury found the appellant guilty of importing fentanyl and possession of fentanyl for the purpose of trafficking. The trial judge imposed sentences of eight years on each conviction to be served concurrently.

[8] CBSA members opened each package. They found 323 grams of fentanyl in the package addressed to the appellant. The others contained similar amounts of fentanyl. The street value of the fentanyl in the package addressed to the appellant was $320,000.

[10] Police obtained a general warrant on November 1, 2016, authorizing the RCMP to conduct a controlled delivery of the package to the appellant or anyone acting on her behalf at her Ajax home.

[13] As the undercover officer attempted delivery, Hazare Roman and the appellant exchanged texts. When Roman advised the appellant that Canada Post was at the door, the appellant told him “Answer and sign”. When Roman replied that Canada Post had left before he (Roman) could get downstairs to the door, the appellant asked whether Canada Post had left anything. Roman said “No”.

[14] About 20 minutes later, the appellant exchanged text messages with her friend, Louisa Munro. As she had the previous day, Munro advised the appellant “O said keep eyes ‘peeled’”. The appellant told Munro that Canada Post had been at her house: “Is it coming that way?”. Munro said “Ya”. The appellant asked “Like delivery?” to which Munro responded “IDK we’ll talk when you here”.

[15] The undercover police officer, disguised as a Canada Post delivery person, returned at 12:50 p.m. the same day. He rang the doorbell and knocked. This time, Hazare Roman answered the door. When asked, Roman indicated that he would accept the parcel for the appellant. He took the package, printed “Jacinda” on the delivery bill, and signed with the appellant’s initials “J.H.”.

[15] Within minutes, Hazare Roman advised the appellant that he had her package. About 45 minutes later, the appellant told Roman “Perfect I’m OMW”.

The Defence Case at Trial

[20] At trial, the defence case consisted of the testimony of two witnesses. Louisa Munro testified first. The appellant was the final witness. Pared to its core, the defence was a denial of any involvement in importing fentanyl. The appellant was expecting a package from Louisa Munro’s mother in Nova Scotia containing books and children’s clothing, not fentanyl from China. The appellant also sought to adduce evidence that a known third party suspect, Raza Khan, the appellant’s former boyfriend and lessee of her home, was responsible for the importation. The application was dismissed. The dismissal is a ground of appeal.

[23] The appellant testified that, on the day of the controlled delivery, Roman was sleeping at her house. She called Munro to tell her that she was going to look for outfits to wear to the basketball game. Munro told the appellant about the package from her mother. When Roman explained that he had missed a delivery, the appellant believed that this was the package from Munro’s mother. She stopped off at home en route to Munro’s to see whether Canada Post had left a delivery slip after the first failed delivery. Later, Roman advised her of the arrival of the package. She did not hurry home to get it.

Third Party Suspect

[24] After the case for the Crown had closed, but prior to electing whether to call a defence, the appellant sought a ruling on an application to adduce evidence of a third party suspect, the appellant’s former boyfriend, Raza Khan.

[25] Raza Khan testified on the third party suspect voir dire. He gave evidence about helping the appellant obtain her home in Ajax. He had lived with her on and off for about ten months, but did not live there with her at that time. The lease was in his name and she paid rent directly to him. He admitted having sold cocaine and fentanyl in the past and having previously ordered different kinds of drugs online, including fentanyl. He neither took responsibility for the fentanyl in the package sent to the appellant, nor did he deny any involvement. He said he could not remember whether he had ordered drugs delivered to the appellant’s home in the past. Nor did he recall whether he had a key to the appellant’s home where he had not lived for a couple of years.

Ground 6: Adverse Inference from Order of Defence Witnesses

[147] This ground of appeal arises out of a submission made by the trial Crown in his closing address to the jury and the trial judge’s response in his charge. The subject-matter is the order in which the defence witnesses testified at trial. To be more specific, the fact that the appellant testified as the second, rather than the first, defence witness.

The Background

[148] Prior to the closing addresses, the trial Crown indicated in the absence of the jury that he proposed to invite the jury in his closing address to draw an adverse inference against the appellant because she testified after Louisa Munro had testified. Defence counsel objected. The trial judge decided that the Crown was entitled to advance this argument.

[150] In his closing address, Crown counsel (not counsel on appeal) told the jury that there was a convention that an accused who testifies in their own defence testifies first before any other defence witnesses give their evidence. The Crown explained that an accused had the right to be present at their trial. However, the fact that an accused heard the evidence of other witnesses, in this case including Munro, was a factor that should affect the weight the jury should assign to her evidence. The Crown submitted that the appellant was simply trying to parrot in her testimony what Munro had said in her evidence.

The Jury Instructions

[151] In his charge to the jury, the trial judge said nothing about Crown counsel’s invitation to the jury to draw an adverse inference against the appellant from having testified second after having heard the evidence all other witnesses including Munro. The judge did tell the jury that there was no evidence why Munro brought a lawyer to court with her when she testified.

[152] The trial judge also instructed the jury that the decision to call the appellant to testify last was a decision for counsel to make. There could be many reasons why counsel made that decision to call Munro first, none of which emerged from the evidence at trial. The jury were told to ignore the “hypothetical reasons”advanced by defence counsel in his closing address.

The Governing Principles

[157] The governing principles are well known.

[158] First, the order of witnesses.

[159] A trial judge has no authority to direct an accused to call witnesses in any particular order or to give evidence before any other witnesses: R. v. Sabir, 2018 ONCA 912, O.R. (3d) 465, at para. 39. The order or sequence in which defence witnesses testify is for counsel or the accused to determine: R. v. Smuk (1971), 1971 CanLII 1197 (BC CA), 3 C.C.C. (2d) 457 (B.C.C.A), at p. 462.

[160] Second, the evidentiary significance of an accused’s right to be present at trial and to determine the sequence of defence testimony. A person accused of a crime is statutorily required and constitutionally entitled to be present at their trial: R. v. G.V., 2020 ONCA 291, 392 C.C.C. (3d) 14, at para. 24, citing R. v. Laws (1998), 1998 CanLII 7157 (ON CA), 128 C.C.C. (3d) 516 (Ont. C.A.), at para. 79; Criminal Code, s. 650(1). And at their trial, an accused is entitled to make full answer and defence: G.V., at para. 24.

[161] To give proper effect to this obligation and their entitlements, additionally an accused’s right to a trial that is at once apparently and actually fair, it is legally wrong for the Crown or the trial judge to invite the jury to impugn or discount the credibility of the accused on the basis that they have tailored their evidence to the testimony heard in the courtroom: G.V., at para. 25. Despite the logic in the suggestion that, as a person who gets full advance notice of the case for the Crown and testifies last, an accused is in a position to tailor their evidence to fit the case presented. However, the logic notwithstanding, no such inference can be invited or drawn without turning fundamental constitutional rights into a trap and exacting an evidentiary price for their exercise: G.V., at para. 26, citing R. v. White (1999), 1999 CanLII 3695 (ON CA), 42 O.R. (3d) 760 (C.A.), at para. 20.

The Principles Applied

[162] As I will explain, I would accede to this ground of appeal.

[163] The respondent acknowledges that the trial judge erred in permitting the trial Crown in his closing address to invite the jury to consider, in assessing the appellant’s credibility, that she testified last as a witness at trial. But the respondent says this error and the substance of the Crown’s closing did not render the trial unfair. I reach a different conclusion about the effect of the error on the fairness of the trial.

[164] In his closing address, the trial Crown told the jury that it was the convention in criminal trials that the accused testifies first before other defence witnesses. This is to ensure that the accused’s evidence is not tainted by hearing other defence witnesses before they (the accused) testify. The fact that, unlike other witnesses, the accused has the right to be present for the whole of their trial is another reason for the convention. The appellant heard Munro’s evidence. She knew what she had to say. This ought to affect the weight the jury should assign to the appellant’s evidence. The jury could not be sure that the appellant had not simply tried to parrot what Munro had said. As a result, the jury should be “extra skeptical when reviewing” the tale of the care package.

[165] The trial judge permitted the Crown to advance this argument and Crown counsel did so. Despite objection, the trial judge took no corrective action.

[166] It is common ground that Crown counsel’s reference to a convention that an accused testifies as the first defence witness is simply wrong. No such convention exists. The order of defence witnesses is for the defence to determine. It is not subject to bright-line rules. There is no set list. This erroneous statement of the law remained uncorrected.

[167] The trial Crown’s closing invited the jury to reject the appellant’s evidence because, as the accused who was present throughout the trial, she was in the unique position of having heard the storyline from Munro. This permitted her to parrot Munro’s version and made her evidence unworthy of belief.

[168] The closing address of Crown counsel invited the jury to use the appellant’s statutory obligation to be present at her trial, as well her constitutional entitlement to make full answer and defence, as a basis for skepticism about and rejection of her testimony. This turned the appellant’s statutory obligation and fundamental constitutional rights into a trap and imposed an evidentiary penalty for their exercise.

[169] Defence counsel, aware of this aspect of Crown counsel’s closing, attempted to blunt its impact. Required to address the jury before Crown counsel, defence counsel offered some possible explanations about why defence witnesses might testify in a particular order. The trial judge instructed the jury to ignore these explanations.

[170] In this case, the errors in Crown counsel’s closing address were not corrected. The jury was never told that there was no legal “convention” about the order of defence witnesses, in particular, that if an accused chose to testify in their own defence, they had to testify first. Further, the jury was never instructed that the fact that the accused was present throughout the trial and heard all the evidence before testifying was not a factor for the jury to consider in assessing the weight to be assigned to her testimony.

[171] In combination, these errors compromised the fairness of the appellant’s trial.

Ground #7: The Third Party Suspect Issue

[172] The final ground of appeal originates in a failed attempt at trial to adduce evidence about a known third party suspect as the person who caused the fentanyl to be mailed into Canada. The trial judge rejected the application after conducting a voir dire at which the alleged third party suspect testified.

The Essential Background

[174] Raza Khan is a former boyfriend of the appellant. The lease for the appellant’s residence, where the package in which the fentanyl had been secreted was delivered, was in Raza Khan’s name. Although Khan did not live with the appellant at the relevant time, she paid her rent to him by electronic money transfer. He forwarded the payment to the landlord. The appellant testified she had the only key to the home. She was not asked whether she ever saw Raza Khan or whether he ever came to her home.

[175] Raza Khan testified on a voir dire to determine whether the appellant would be permitted to adduce evidence in support of a third party or alternate suspect defence. He acknowledged that:

i.         he sold cocaine and fentanyl;

ii.         he had ordered drugs online;

iii.        the drugs ordered online were shipped or mailed; and

iv.      he has ordered drugs in the names of other persons, not his own.

[176] Raza Khan has a significant criminal record including two convictions in 2009 for possession of Schedule I and II controlled substances for the purpose of trafficking. In each case, he was sentenced to brief terms of imprisonment, one of which took into account more than seven months of pre-trial custody.

[177] Raza Khan said that he could not recall whether he had ordered drugs to be delivered to the appellant’s home or whether he had a key to her house. He was not asked whether he had previously ordered drugs in the appellant’s name.

The Rulings of the Trial Judge

[178] The trial judge gave two brief oral rulings on the alternate or known third party suspect issue. The first was based on the appellant’s testimony, the second after Khan had testified on a voir dire.

[180] After receiving the testimony of Raza Khan on the voir dire, the trial judge concluded that there was no air of reality to the third party or alternate suspect defence. In particular, there was no evidence that Khan had ever ordered drugs in the appellant’s name. Although Khan admitted having ordered drugs online, among them cocaine and fentanyl, and having had them mailed or shipped to other houses, he could not recall having ordered a delivery to the appellant’s home. Although there was evidence that Raza Khan had a propensity to commit the offence with which the appellant was charged, the record revealed no nexus between Khan and the offence charged. There was no air of reality to the proposed defence. The application was dismissed.

The Arguments on Appeal

[181] The appellant accepts that to advance a third party or alternate suspect defence, the evidence relied upon in support must meet the air of reality standard. Appellate review of a decision on the issue applies a standard of correctness. The burden on an accused is evidentiary. What is required as an evidentiary threshold is any evidence on the basis of which a properly instructed jury, acting judicially, could acquit. If this burden is met, the trial judge must also be satisfied that the probative value of the evidence in support of the defence is not substantially outweighed by its prejudicial effect.

[182] The appellant also acknowledges that there must be a sufficient connection between the third party or alternate suspect and the alleged offence to furnish the essential air of reality. This may be supplied by evidence that the third party had the opportunity, motive, or propensity to commit the offence. The disposition of a third party to commit the offence is probative and admissible provided there is other evidence connecting the suspect to the offence. Just because a third party does not admit culpability does not mean that there is no air of reality to the defence. Provided the inferences available from the evidence are capable of raising a reasonable doubt about the defence, the defence should be left to the jury.

[183] Here, the appellant urges, there was an air of reality to the defence. The trial judge failed to consider the possibility that Raza Khan was lying on the voir dire. The judge also ignored the cumulative effect of several items of evidence. Raza Khan was the leaseholder of the appellant’s residence and collected the rent from her, sometimes at the residence. Raza Khan had lived at the residence with the appellant and may have received two keys. He was a convicted drug dealer who had ordered drugs online in the past and had trafficked in fentanyl. He had previously ordered drugs online in the names of others and only offered a tepid failure to recall when asked about ordering them delivered to the appellant’s home.

The Governing Principles

[188] It is open to an accused charged with an offence to adduce evidence that tends to show that another person committed the offence with which the accused is charged. The evidence offered in support may be direct, or circumstantial, or a combination of both: R. v. McMillan (1975), 1975 CanLII 43 (ON CA), 7 O.R. (2d) 750 (C.A.), at p. 167, aff’d 1977 CanLII 19 (SCC), [1977] 2 S.C.R. 824. The evidence must be relevant and of sufficient probative value to warrant its reception. As a result, courts have been disinclined to admit evidence about alternate or third party suspects unless the suspect is sufficiently connected by other circumstances with the crime charged to give the proposed evidence some probative value: McMillan, at p. 757; R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at paras. 46-47.

[189] Evidence of the disposition of a known alternate or third party suspect is admissible to establish commission of the offence charged by that person provided that person is connected to the offence by other evidence. Absent such a nexus, the disposition evidence would lack any probative value: McMillan, at p. 758; R. v.  Murphy, 2012 ONCA 573, 292 C.C.C. (3d) 122, at para. 19.

[190] To put the third party or alternate suspect issue in play at a criminal trial, the defence must show that there is some basis upon which a reasonable jury properly instructed, could acquit on the basis of the defence. Absent a sufficient connection between the third party and the offence, the defence will lack the required air of reality and fail in limine: Grandinetti, at para. 48.

[191] The requirement to show some nexus or connection between the third party and the offence applies whether the proposed evidence is direct or circumstantial or a combination of both. However, where the defence proposes to call direct evidence from another who admits responsibility for the offence, that proposed evidence itself constitutes a sufficient nexus or connection: Murphy, at paras. 24-25.

[192] Among the items of evidence that an accused may rely upon in support of an alternate or third party suspect defence is evidence of that person’s disposition or propensity to commit offences of the nature charged. One method of establishing disposition is to adduce evidence of the third party’s criminal record disclosing convictions of cognate offences. A single conviction may suffice: R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at p. 141.

[193] A final point concerns the principles governing the admissibility of defence evidence in a criminal trial. The exclusion of relevant, material, and otherwise admissible defence evidence may only be justified on the ground that the potential prejudice to the trial process of admitting the evidence substantially outweighs its probative value: Murphy, at para. 17, citing, R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at pp. 611-12.

The Principles Applied

[194] In my respectful view, the trial judge erred in failing to permit the defence to call Raza Khan as an alternate or third party suspect. Thus, I would give effect to this ground of appeal.

[197] Raza Khan testified on the voir dire. He did not admit that he had ever ordered drugs to the appellant’s address. He said he could not recall having done so, although he had ordered drugs online before and had them delivered to other addresses. Disbelief of his faulty memory explanation does not equate to an admission that he committed the offence.

[198] On the other hand, I am satisfied that there was sufficient circumstantial evidence to put the alternate or third party suspect issue in play.

[199] Raza Khan was an admitted and convicted trafficker. He acknowledged ordering drugs online from various sources. The drugs included fentanyl, the same controlled substance at issue here. He had ordered fentanyl online. He ordered that delivery of his online purchase be made to addresses other than his own to recipients other than himself. In other words, he had a disposition to do the very thing the appellant was alleged to have done here.

[200] Raza Khan was also connected to the place of delivery and the recipient. He was the lessee of the property. He had lived there for several months with the appellant. He collected the rent money from her. And this is not a case in which, as his previous dealings show, he needed to be at the address at a specific time to order the fentanyl online and have the appellant’s name appear as addressee and the package delivered to her residence.

[201] The cumulative effect of this evidence was sufficient to meet the evidentiary threshold to engage the alternate or third party suspect defence. The trial judge erred in ruling otherwise.

Disposition

[202] The combined effect of the errors I have identified leads me to conclude that the convictions entered at trial cannot stand. I would allow the appeal, set aside the convictions, and order a new trial on both counts of the indictment.

R v Toews, 2021 BCCA 405

[October 19, 2021] Crown Cannot Try to Collapse Intermittent Sentence – Functus Oficio [Reasons by Madam Justice Newbury, with Fisher and Butler JJ.A. concurring]

AUTHOR’S NOTE: During the pandemic, jails have sometimes resorted to allowing people to serve their intermittent gaol sentences at home.  Despite this, the Crown cannot revisit a sentence imposed in these circumstances. The principles of functus oficio continue to apply and there is no statutory power for the Crown to revisit these sentences.

Overview and Facts

[1] NEWBURY J.A.: The appellant Mr. Toews pleaded guilty in February 2020 to four charges under the Criminal Code, R.S.C. 1985, c. C-46 — one count of breaking and entering the apartment of the complainant, his former girlfriend, for the purpose of committing the indictable offence of mischief; one count of harassing her by means of telecommunication; one count of threatening her; and one count of conveying a threat to police to cause death or bodily harm to her.

[2] At the time of sentencing, the appellant was 57 years old and was suffering from a disability in the form of PTSD. The sentencing judge noted that he is in receipt of disability income assistance, specifically for anxiety and depression, and has had continuing struggles with alcohol since he was a young boy. (Sentencing reasons, 2020 BCSC 2127, at para. 20.) He had a criminal record, including three offences relating to drugs, a spousal assault (for which he received a two-month conditional sentence plus probation) and a firearms offence under s. 86(2) of the Criminal Code. At some point in 2009, he was convicted as well of trafficking in a controlled substance and had received a conditional sentence of 12 months.

[5] Taking all the circumstances into account, the judge noted that having been in custody for two days, Mr. Toews was entitled to three days of time served to be credited against his term of imprisonment. With respect to the charge of breaking and entering a dwelling house and committing mischief contrary to s. 348(1)(b) of the Code, she imposed a 90-day intermittent sentence, which would become a sentence of 87 days after the credit of three days. On each of the other three charges, she imposed intermittent sentences, each for 30 days concurrent with the sentence imposed on the break and enter. As well, the Court imposed a term of probation of 24 months on each of the charges, on terms that are set out in the judge’s reasons at paras. 46–55. The 87 days of intermittent time were to be served beginning at 4:00 p.m. on Fridays until 9:00 a.m. on Mondays on consecutive weeks, beginning on Friday, July 10, 2020. The probation order was to run concurrently and therefore began on the date of sentencing. (See para. 72.)

[7] What is at issue is a second variation agreed to on August 28, 2020 by the sentencing judge at the application of the Crown. Evidently, because of the COVID-19 pandemic, the OCC adopted a policy of granting temporary absences to inmates with intermittent sentences, allowing them to remain out of custody on terms. Accordingly, the appellant was not required to spend any time in custody, although he had to drive from his home in Vernon to the OCC, receive his temporary absence documentation, and then drive back home or elsewhere, presumably every Friday night when his custody should have commenced for the weekend.

[8] This prompted the Crown to apply, presumably under s. 732 of the Code, for an order varying the appellant’s intermittent sentence by “collapsing” it into a continuous jail sentence. I set out s. 732 below:

(1) Where the court imposes a sentence of imprisonment of ninety days or less on an offender convicted of an offence, whether in default of payment of a fine or otherwise, the court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, and the availability of appropriate accommodation to ensure compliance with the sentence, order

(a) that the sentence be served intermittently at such times as are specified in the order; and

(b) that the offender comply with the conditions prescribed in a probation order when not in confinement during the period that the sentence is being served and, if the court so orders, on release from prison after completing the intermittent sentence.

(2) An offender who is ordered to serve a sentence of imprisonment intermittently may, on giving notice to the prosecutor, apply to the court that imposed the sentence to allow it to be served on consecutive days.

(3) Where a court imposes a sentence of imprisonment on a person who is subject to an intermittent sentence in respect of another offence, the unexpired portion of the intermittent sentence shall be served on consecutive days unless the court otherwise orders.

It will be noted that although an offender who has received an intermittent sentence may apply under subs. 732(2) to have the court vary that sentence to allow it to be served on consecutive days, s. 732 is silent about any circumstances in which the Crown may apply, and the court may grant, such an order.

[9] At the outset of the variation hearing, the sentencing judge told counsel that if she had been aware that the appellant would not have been able to serve any time in custody, she would not have imposed an intermittent sentence; nor would she have found it appropriate to sentence him to no time at all. She would therefore have imposed a ‘straight time’ sentence. Thus the only question remaining on which she sought counsels’ submissions was whether she had the jurisdiction to grant the requested variation.

[12] … Counsel raised the question of whether the Court was functus officio once the warrant of committal had been signed.

Reasons

[17] The sentencing judge in the case at bar gave oral reasons following the hearing, granting the Crown’s application: see 2020 BCSC 2016. She formulated the issue before her as whether she was functus officio. In her analysis, this essentially turned on whether the Crown was seeking a variation or was in effect to asking the Court to “go back, change its mind, and impose an entirely different sentence” than that imposed on July 6, 2020. The relevant part of her reasoning was as follows:

…. That, in my view, amounts to a change of circumstance, and I am satisfied that I am not functus; that a position where I may vary the sentence to collapse the time served, so long as there is a valid reason for doing so….

[18] In the result, the Court ordered that the imprisonment portion of the appellant’s sentence was varied such that he was required to serve the remainder of his time consecutively. We are told that he has now completed serving this time.

On Appeal

[19] In this court, counsel for the appellant again submits that once the sentencing judge had pronounced the intermittent sentence, the Court was functus officio with respect to the type of sentence that the appellant was to serve; and that in converting it to a sentence of ‘straight time’, the Court had substituted a different sentence for the original one (as amended by the first variation). The appellant infers that the sentencing judge accepted the suggestion made in Raczkowski that the absence of a provision in the Code that would allow the Crown to apply to collapse an intermittent jail sentence into a straight-time sentence was essentially a “legislative gap.” In counsel’s submission, such an inference cannot be made here, given that s. 732(1)(b) allows only for an offender to apply to have an intermittent sentence served continuously. If Parliament had intended for the Crown to have the same ability, the appellant contends, it would have said so. (It did so in s. 742.6(9) of the Code, for example, which allows the Crown to seek an order suspending a conditional sentence order and directing that the unexpired portion of the sentence be served in custody.) In summary, the defence says, the sentencing judge did not have the inherent jurisdiction or statutory jurisdiction to make the order she did.

[20] In this court, the Crown now adopts the appellant’s position: it agrees that the sentencing judge was functus officio once she imposed the intermittent sentence and signed the warrant of committal on July 6, 2020.

[23] With respect to the substantive issue on appeal, it is my respectful view that the sentencing judge erred in two ways in agreeing to the second variation to “collapse” the intermittent sentence. First, the fact that s. 732 permits an offender to apply for such an order, suggests that Parliament did not intend for the Crown to be able to make such an application, as occurred here. Indeed, this case is the opposite of Raczkowski, where the appellant was applying to have his intermittent sentence varied by changing the days of the week on which he was required to serve it. The sentence in that instance remained an intermittent one; in this case it would not. Nor can it be said the variation would be purely procedural or of minor significance. It would have been considerably more onerous on Mr. Toews than an intermittent sentence, as the sentencing judge realized in her original reasons. [Emphasis by PM]

[25] As far as inherent jurisdiction is concerned, none of the cases cited to us supports the view that the court below, which is a court of inherent jurisdiction, had the authority to convert Mr. Toews’ intermittent sentence into one for ‘straight time’. Intermittent sentences are different from non‑intermittent ones and the variation sought here was not intended to accomplish the objectives of Mr. Toews’ “personal circumstances …, including his disabilities and his chaotic childhood.” (Reasons, para. 40.) Regardless of the reasons for the order, it resulted in a greater deprivation of the appellant’s liberty than the original order — a result that, in my view, requires express language. As Gouge P.C.J. stated in R. v. E.K.:

… The Criminal Code then [i.e., at the time R. v. Germaine was decided] contained no provision analogous to the present s. 732(2). As a result, the Criminal Code did not expressly authorize the variation ordered by the learned trial judge. In my view, it would have been difficult for the court in Germaine to conclude that such authority was conferred by necessary implication. When Parliament intends to authorize a limitation on, or infringement of, the liberty of a citizen, it usually employs express language. One can rarely infer a power to infringe the liberty of a citizen. … [At para. 27; emphasis added.]

[26] At the end of the day, I agree with both counsel that the sentencing judge in this case was functus officio at the time she made the (second) variation order and that the Court’s inherent jurisdiction does not extend to the authority to convert an intermittent sentence to a continuous one at the behest of the Crown. I make no comment on the first variation order.

[Appeal allowed and variation overturned.]

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