The Changing Face of Conditional Sentencing

7. Appellate Review of Sentencing

Mr. Justice William Vancise
Saskatchewan Court of Appeal

In any discussion of appellate review of sentences in general and conditional sentences in particular, the starting point of necessity must be the Criminal Code. Section 718.3(1) of the Code gives trial judges discretion to prescribe different degrees or kinds of punishment in respect of an offence subject to the limitations prescribed in the Code. Section 742.1 provides that a person who is convicted of an offence except one punishable by a minimal term of imprisonment, may be sentenced to a conditional sentence of imprisonment where two pre-conditions are met: (1) that the sentence is of less than two years, and (2) the accused is not a danger to the community; and, that such sentence would not be inconsistent with the fundamental principles of sentencing.

There is no right of appeal at common law. The right to appeal a sentence is dependent upon the statutory right of appeal contained in the Criminal Code. Historically, the right to appeal a conviction was introduced into the Code of 1892, but the right to appeal sentences was limited to cases where the sentence was one “which could not by law be passed”.[229] In 1921 courts of appeal were given the power to review the “fitness” of sentence as opposed to the legality of the sentence.[230] The power to review sentences is now contained in s.687(1)[231] of the Code which provides that, where an appeal is taken against sentence, the court of appeal shall consider the fitness of the sentence appealed against and may either vary the sentence within the limits prescribed by law for the offence, or dismiss the appeal. Section 687(2) provides that a judgment of a court of appeal that varies the sentence has the same force and effect as if the sentence were passed by the trial court.

Prior to examining recent decisions of the Supreme Court of Canada which have limited the power of courts of appeal to vary sentences imposed by trial judges, it is useful to examine the historical interpretation by appellate courts of that statutory appeal power to review sentences. A judicial debate about the extent of the powers of courts of appeal to review sentences imposed by trial judges began almost immediately after its introduction in 1921. The two opposing points of view were later summarized by Owen J. in his dissent in R. v. Deschennes:[232]

One point of view is that as far as sentences are concerned a Court of Appeal should interfere rarely, that sentencing is primarily the responsibility of the trial Judge, and that Judges of the Court of Appeal should only interfere with a sentence if it shocks their sense of justice. This is a “laissez-faire” or negative attitude. It has been referred to as the “rubber-stamp” theory: Ponton v. The Queen (1959), 127 C.C.C. 325, 31 C.R. 347, Casey, J., at p. 331 C.C.C., p. 357 C.R.

Another point of view is that a Court of Appeal in carrying out its obligation to consider the fitness of the sentence appealed against has a duty to go into the matter fully and to consider each appeal from sentence with the utmost care even though the sentence on its face does not shock the Court by its excessiveness or its inadequacy. This point of view finds support in the wording of s. 593 of the Criminal Code, which provides that the Court of Appeal shall consider the fitness of the sentence appealed against.[233]

The restrictive approach is exemplified by the Québec Court of Appeal in such decisions as R. v. Duestoor[234] and Cooper v. R.[235] which held that a court of appeal should not interfere with the sentence imposed by the trial judge unless it can be shown that he proceeded on some wrong principle. The Saskatchewan Court of Appeal in R. v. Morrissette[236] outlined the activist approach. Chief Justice Culliton stated that the Saskatchewan Court of Appeal had never taken a “laissez-faire” or “negative attitude” in sentence appeals in exercising the powers conferred on it by the Code in s. 593(1) [now s.687.(1)]. In R. v. Finlay[237] the Court held that Parliament intended a court of appeal to consider all the circumstances connected with the case and modify the sentence if in its opinion it should be modified. Martin J.A., later Chief Justice of the Court of Appeal of Saskatchewan, stated:

A court of appeal can only exercise its best judgment after a careful consideration of all the circumstances and will always remember that the trial judge having seen the accused and heard the witnesses has an advantage . . . which cannot be lightly regarded.[238]

Most courts of appeal in the country took the activist approach to sentence appeals. Suffice it to say that by the early 1980s any restrictive approach to sentencing appeared to have been rejected.

In Morrissette, Culliton C.J., speaking on behalf of the Court, was careful to point out that a court of appeal in exercising its function, should not lightly disregard the advantage of the trial judge in having seen the accused and hearing the witnesses. He pointed out, however, that the advantage enjoyed by a trial judge is offset in circumstances where the appellant appeals his sentence, appears in person, and makes his submission. There the appellate court has as much of an opportunity as the trial judge to assess the character of the appellant. He concluded by stating:

I think it is apparent that when the appellant appears in person before the appeal Court, that Court is in at least as good a position as was the trial Judge to assess the character of the appellant. While the Court should carefully weigh the reasons advanced by the trial Judge for the sentence he imposed, it should not be hesitant to disagree either with the reasons or conclusions of the trial Judge, if it feels, after a careful review of all of the circumstances, the sentence imposed was not a fitting one. Under such circumstances, the appeal Court has the right and the duty to vary the sentence to one it believes to be proper. As well, the Court of Appeal must exercise the powers granted to it to prevent unreasonable disparity in sentences for the same or similar offences.[239]

The activist approach to sentence review as articulated by Culliton C.J.C. and adopted by almost all courts of appeal changed with the decision of the Supreme Court of Canada in R. v. Shropshire[240] where Iacobucci J. examined the standard of appellate review in sentence appeals. In Shropshire the court was called upon to determine the appropriate factors for a sentencing judge to consider in determining a period of parole ineligibility for an individual convicted of second degree murder. A secondary issue, that of the appropriate standard of appellate review of that discretionary order was also raised. It is that secondary issue which has vested Shropshire with such notoriety. Iacobucci J. found that s. 744 orders are defined by s. 673 as forming part of the “sentence” and thus, are to be appealed pursuant to s. 687(1) of the Code. He then set out a restrictive approach to appellate review in these terms:

An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable.[241]

Iacobucci J. adopted the analysis of Bull J.A. in R. v. Gourgon[242] that courts of appeal should be careful not to interfere with the exercise of a discretion of a trial judge unless the discretion is patently wrong or the trial judge erred in principle or overemphasized or ignored appropriate factors. As previously noted, that opinion had been rejected by the majority of if not all of the courts of appeal in this country, if not in express terms, certainly by deed. The activist position articulated by Culliton C.J.S. was the one favoured by courts of appeal.

Suffice it to say that courts of appeal were sensitive to the advantages of trial judges in imposing sentences but nevertheless were of the view that s. 687(1) or its predecessor imposed an obligation on courts of appeal to carefully weigh the reasons advanced by the trial judge for the sentence under appeal and to change it if the court of appeal after a careful review of all of the circumstances was of the opinion that the sentence was not fit.

Shropshire was shortly followed by R. v. M.(C.A.)[243] where the deferential approach was confirmed, refined and formally extended. Chief Justice Lamer stated:

Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliament explicitly vested sentencing judges with a discretion [in s. 717(1), now 718.3(1)] to determine the appropriate degree and kind of punishment under the CriminalCode…This deferential standard of review has profound functional justifications.[244]

The Chief Justice then embarked on a rather remarkable justification for deference to sentences imposed by trial judges in circumstances where there has been no trial; where the accused has plead guilty; and, where the trial judge has had only the benefit of written or oral submissions on sentence. He relied on: 1) the trial judge being able to directly assess the sentencing submissions by both the defence and Crown; 2) the trial judge having served on the front lines of the justice system; and, 3) the trial judge normally residing at or near the community which has suffered the consequences of the offender’s crime. All those factors led him to conclude that the sentencing judge will have a “strong sense of the particular blend of sentencing goals that will be ‘just and appropriate for the protection of the community’and the sentences of trial judges should not be lightly interfered with.”[245]

If one examines the position taken by Chief Justice Culliton in Morrissette it is readily apparent that the two views are diametrically opposed. There is no advantage to a trial judge who does not hear the evidence or the accused but relies merely on oral or written submissions. The so-called position of advantage is no different from that of a court of appeal. Frequently the court of appeal is in a better position because the appellant appears in person and makes his or her own submission on sentencing. Courts of Appeal in the various provinces are as well placed as trial judges to have a strong sense of the community and the particular blend of the sentence required to assess the fitness of the sentence. We do not live many miles away in a distant kingdom (such as Ottawa) so as to be unable to assess the relevant factors applicable in sentencing. Indeed, the decisions of Bayda C.J.S. in both R. v. Taylor[246] and his dissent in R. v. Morin[247] while upholding decisions of a sentencing judge made the point eloquently that the Court of Appeal was extremely cognizant of circumstances surrounding the sentences and what was just and appropriate for the protection of the communities involved.

Notwithstanding the approach adopted by the Supreme Court, Lamer C.J. did concede in M.(C.A.) that appellate courts do have useful roles to play in reducing disparity of sentencing although it is arguable that the deferential approach reduces the court’s ability to minimize disparity. In my opinion, deference encourages disparity and makes it much more difficult for courts of appeal to carry out the function of minimizing differences in results of sentencing. See my comments in R. v. Laliberte.[248] Interestingly, Chief Justice Lamer concludes by stating:

I believe that a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes.[249]

In effect, that is what court of appeal have always done. The problem is that courts of appeal are now faced with the so-called “deferential standard” of sentence review which was summarized by Sopinka J. in R. v. McDonnell[250] as: 1) error of principle; 2) failure by the trial judge to consider a relevant factor; 3) an over-emphasis by the trial judge of an the appropriate factors; and, 4) a demonstrable unfitness of the sentence.

The result is that courts of appeal must now substitute the strong deferential approach for the lessor deferential approach as epitomized in Morrissette. I described that effect in these words in Laliberte:

The effect of these three Supreme Court judgments has a profound effect on how we as a court of appeal deal with sentence appeals. Suffice it to say that prior to these decisions, this Court had not followed a “strong deferential approach” to sentence appeals. The result is, as Bayda C.J.S. noted in R. v. Horvath[251], (1997), 152 Sask. R. 277, para. 23 that the approach to reviewing sentences as set out by this Court in Morrissette and Wenarchuk must now be replaced by the “strong deferential” standard of appellate review as set out by the Supreme Court in Shropshire, M.(C.A.) and McDonnell. Unless the sentencing judge has erred in principle, failed to consider a relevant factor or over emphasized an appropriate factor or imposed a sentence that is demonstrably unfit this court must not intervene.

This deferential approach to sentence appeals is apt to produce more individualized sentences and consequently apt to produce a wider disparity of sentences when viewed from the perspective of the “offence” as distinct from the “offender”.[252]

What then is the effect of the strong deferential approach to sentencing in general and conditional sentences in particular? The British Columbia Court of Appeal recently considered the standard of appellate review in R. v. Mafi[253], in an appeal dealing with the period of parole ineligibility under s.745.2 of the Code. The trial judge had imposed a period of 20 years parole ineligibility for conviction of second-degree murder involving the stabbing deaths of two individuals. In imposing the sentence, the trial judge accepted the recommendation of the jury that the period of parole ineligibility be 20 years. Chief Justice McEachern and Mr. Justice Lambert allowed the appeal and reduced the period of parole ineligibility from 20 to 15 years. Mr. Justice Braidwood upheld the trial judge’s decision because in his opinion it did not fall “outside the acceptable range for this kind of second degree murder”.

With respect, that is precisely the problem with the strong deferential approach to sentencing. The range determined by the trial judge and Judge Braidwood was 10 to 20 years of parole ineligibility. That is an extremely wide range which can lead to a great deal of injustice. In effect it reduces an appellant to searching for an error in principle in order to appeal.

Mr. Justice Lambert examined this question in some detail. He noted that the recent amendments to the Criminal Code in relation to sentencing provided in s. 718.2(b) that:

718.2 A court that imposes a sentence shall also take into consideration the following principles:…

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances

and that there was nothing inconsistent between that section, a principle which has always been important in sentencing, and s. 745.4 which sets out the obligation of a sentencing judge in imposing a sentence for second degree murder. As he points out, the sentence for second -degree murder is life imprisonment coupled with parole ineligibility of not less than 10 and not more than 25 years. That, however, is not the “acceptable range”. Surely, the “acceptable range” is determined by the range for similar murders committed by similar offenders in similar circumstances. That range is determined in the same way as for all other offences. The range is not zero to the maximum, i.e. 0-14 years but rather is determined for like crimes committed by like people in like circumstances.

The difficulty in Mafi is that the acceptable range as found by the trial judge was too wide. The purpose of ranges established by courts of appeal is to provide useful guidelines to trial judges when sentencing accused persons. Those ranges must however not be so wide as to effectively deprive an accused person of a right of appeal. Those ranges have been determined over time by decisions of trial judges and courts of appeal and change from time to time to reflect changing circumstances. See, for example, the decision of the British Columbia Court of Appeal in R. v. Sweeney[254] in which the British Columbia Court of Appeal considered whether the upper end of the range for sentences for dangerous driving causing death or impaired driving causing death had through creeping incrementalism been allowed to drift too high.

In the opinion of Mr. Justice Lambert, a key consideration in the determination of whether or not a sentence is demonstrably unfit, should be whether the sentence imposed is a marked departure from the mid-point of the range and not from the extremes of the range. That approach has much to commend it but the better approach is to narrow the range as was done in Mafi. Mr.Justice Lambert notes courts of appeal must maintain an appropriate measure of sentencing consistency by ensuring the range is kept within limits set by identifying the characteristics of the offender and the offence that are significant for sentencing purposes.

Chief Justice McEachern after noting the changes to the Criminal Code with respect to sentencing and the Supreme Court of Canada’s decisions in Shropshire and M.(C.A.) stated:

Thus, it seems that a sentence imposed in a given case “should” be similar to sentences imposed upon similar offenders for similar offences committed in similar circumstances. However, at the same time, we must take into account the other purposes and principles of sentencing, including any aggravating or mitigating circumstances and the impact upon the victim(s)= family and friends. Moreover, in the recent case of R. v. Gladue[255], [1999] 1 S.C.R. 688, it was emphasized that sentencing judges must take into consideration all the provisions in Part XXIII of the Criminal Code.

As a result of the legislative amendments and the relevant case law, sentencing has become a very complicated exercise. Further, if all of the delineated principles are properly applied, a possible result could be a sentence that, when given an adequate measure of deference, would effectively deprive an accused of an effective right of appeal. Despite these observations, the foregoing represents the law that I must endeavour to apply in this case.[256]

Chief Justice McEachern then noted that the attempt to balance all the factors of sentencing may lead to the displacement of sound judgment exercised by trial and appellate judges. He carefully examined all the relevant factors to attempt to find an appropriate range of sentence which included not only a comparison with the length of parole ineligibility imposed in other cases but the peculiar circumstances of the accused. He considered: the circumstances of the offence; the circumstances of the accused; aggravating or mitigating circumstances; the effect of denunciation and retribution; the jury’s recommendation; and, the change of rehabilitation. More importantly, after a lengthy review of the principles, he concluded that the appropriate range was in the 12 to 15 year period of parole ineligibility as found by Mr. Justice Lambert. He found that notwithstanding that in his opinion the sentence was outside the range, he still had to consider whether to defer to the decision of the trial judge and dismiss the appeal. I do not agree with that position. Once he found the sentence to be outside the range the sentence is unfit. I do agree with his opinion that to defer to the trial judge in the circumstances he described would result in upholding an excessive sentence and amount to a denial of the accused’s right to appeal. That is the danger. Unless courts of appeal approach these matters with a certain degree of flexibility we will create injustice rather than reduce disparities and reduce injustices in sentencing.

The Supreme Court of Canada would appear to have judicially legislated a new meaning for the word “fitness.” It is not enough the sentence is not fit, it must be demonstrably unfit and the trial judge must have committed either some error in principle or failed to consider or overemphasized a relevant factor in imposing the sentence. That position was reemphasized by Chief Justice Lamer in R. v. Proulx[257] in dealing with an appeal concerning the imposition of a conditional sentence. Chief Justice Lamer stated: “I stress that appellate judges should not second guess sentencing judges unless the sentence imposed is demonstrably unfit.”[258] This is but one more example of the Supreme Court reducing the powers of courts of appeal. This cannot in the long run produce a positive approach to sentencing.

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