Guilbeault c. R., 2023 QCCA 1563
Given the potential for grave impact on the appellant’s liberty, he benefits from a somewhat more intrusive standard of appellate review than that applied on an ordinary sentence appeal.
[8] Given the potential for grave impact on the appellant’s liberty, he benefits from a somewhat more intrusive standard of appellate review than that applied on an ordinary sentence appeal.[6] While it does not call for a completely fresh look and the appellate court must give some deference to the findings of the sentencing judge, it is nevertheless somewhat more robust.[7]
[…]
[71] The standard of review applicable to an appeal from a dangerous offender designation was recently restated in R. v. Garnot, 2019 BCCA 404 at para. 47:
[47] Under s. 759(1) of the Criminal Code, a person who is found to be a dangerous offender may appeal on any ground of law or fact or mixed law and fact. This court has stated that the appellate review of a dangerous offender designation is “somewhat more robust” than “regular” appellate review of a sentence, although some deference is still owed to the sentencing judge’s findings of fact and credibility. As observed in R. v. Malakpour 2018 BCCA 254, the standard for errors of law is correctness and for errors of fact, reasonableness. (At para. 47, citing R. v. Sipos 2014 SCC 47 at para. 26; R. v. Boutilier, 2017 SCC 64 at para. 81; and R. v. Walsh2017 BCCA 195 at para. 23.)
Absent a material error of law, a dangerous offender designation and findings essential to it, including the assessment of an offender’s future risk and amenability to treatment, engage questions of fact to which deference is owed. The role of an appellate court is to ensure that the law was applied correctly and, if it was, to decide whether the designation is reasonable: Boutilier (SCC) at paras. 81, 85–88.
[72] The standard of review on an appeal challenging the fitness of a determinate sentence is deferential. Absent an error in principle shown to have a material impact on the sentence, an appellate court may not vary the sentence unless it is shown to be demonstrably unfit: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 at para. 90; R. v. Lacasse, 2015 SCC 64 at para. 11; Friesen at para. 26; R. v. Agin, 2018 BCCA 133 at paras. 52, 56–57.
[71] The standards outlined above have been applied by this Court in multiple decisions.[59]
It is highly preferable to address the admissibility of the Correctional Service documentation through the lens of the general rules of evidence at a sentencing hearing, as laid down in Gardiner by Dickson C.J.C. and subsequently codified at ss. 723 and 724 of the Criminal Code
[130] To be clear, the right to request a correction of a record does not lead to the conclusion that, in the absence of an offender’s request, all records are presumed accurate and trustworthy. Such a presumption would be totally unrealistic and incompatible with the rules of evidence with respect to aggravating factors, which I will discuss shortly.
[131] In my view, it is highly preferable to address the admissibility of the Correctional Service documentation through the lens of the general rules of evidence at a sentencing hearing, as laid down in Gardiner by Dickson C.J.C. and subsequently codified at ss. 723 and 724 of the Criminal Code:
One of the hardest tasks confronting a trial judge is sentencing. The stakes are high for society and for the individual. Sentencing is the critical stage of the criminal justice system, and it is manifest that the judge should not be denied an opportunity to obtain relevant information by the imposition of all the restrictive evidential rules common to a trial. Yet the obtaining and weighing of such evidence should be fair. A substantial liberty interest of the offender is involved and the information obtained should be accurate and reliable.
It is a commonplace that the strict rules which govern at trial do not apply at a sentencing hearing and it would be undesirable to have the formalities and technicalities characteristic of the normal adversary proceeding prevail. The hearsay rule does not govern the sentencing hearing. Hearsay evidence may be accepted where found to be credible and trustworthy. The judge traditionally has had wide latitude as to the sources and types of evidence upon which to base his sentence. He must have the fullest possible information concerning the background of the accused if he is to fit the sentence to the offender rather than to the crime.[94]
[Emphasis added]
[132] Clearly, under Gardiner if the facts are “undisputed, the procedure can be very informal.”[95]
[133] However, Gardiner contains an important caveat with respect to disputed facts, one which is occasionally disregarded or neglected when discussing its holding. Dickson C.J.C. explained that disputed facts should be proven beyond a reasonable doubt:
If the facts are contested the issue should be resolved by ordinary legal principles governing criminal proceedings including resolving relevant doubt in favour of the offender. To my mind, the facts which justify the sanction are no less important than the facts which justify the conviction; both should be subject to the same burden of proof. Crime and punishment are inextricably linked.
[…]
[B]oth the informality of the sentencing procedure as to the admissibility of evidence and the wide discretion given to the trial judge in imposing sentence are factors militating in favour of the retention of the criminal standard of proof beyond a reasonable doubt at sentencing.[96]
[Emphasis in the original]
[134] This principle has never been abandoned and was legislatively enshrined as Charron J. explains in McIvor:
[12] […] When an aggravated fact is disputed at a sentence hearing, s. 724 of the Criminal Code provides that the Crown must establish its existence by proof beyond a reasonable doubt and the offender has the right to cross-examine any witness called for that purpose. […].[97]
[135] Unsurprisingly, this approach is also applicable to dangerous offender proceedings as stated by the British Columbia Court of Appeal in Ziegler:
[7] A dangerous offender hearing is guided by the same evidentiary principles and objectives as other sentencing proceedings: R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357 at para. 23. The Crown may submit hearsay evidence if it is reliable and credible. If an aggravating fact is challenged by the offender, however, the Crown must prove the disputed facts beyond a reasonable doubt in accord with the general principles that govern criminal proceedings, including resolution of any doubt in favour of the offender: R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368 at 414-415, 140 D.L.R. (3d) 612. The offender must, however, challenge any fact clearly and unequivocally: R. v. Ford, 2010 BCCA 105 at para. 59, 254 C.C.C. (3d) 442.[98]
[Emphasis added]
The admissibility of reliable hearsay must not be confused with its probative value, nor should it be forgotten that the standard relating to disputed aggravating facts is the standard of proof beyond a reasonable doubt
[136] Therefore, the admissibility of reliable hearsay must not be confused with its probative value, nor should it be forgotten that the standard relating to disputed aggravating facts is the standard of proof beyond a reasonable doubt.
[137] In St-Coeur, Fish J.A. (as he then was) wrote the following observations on this very issue:
As Justice Dickson makes clear, the trial judge, in considering sentence, need not invariably proceed in accordance with the procedural and evidentiary rules applicable before verdict. Judges have always enjoyed considerable latitude as to the sources and types of evidence to be admitted at the stage of sentence: Gardiner, supra, p. 514. They must take care, however, not to consider as aggravating factors any allegations which are neither clearly admitted nor proved by reliable evidence beyond a reasonable doubt.[99]
[Emphasis added]
[138] The Ontario Court of Appeal came to a similar conclusion in Williams, a case relied upon by both parties.
[139] The Court considered the admissibility and proper use of police synopses in a dangerous offender application under s. 753 Cr.C.[100]Rouleau J.A. wrote:
[49] As with any sentencing hearing, hearsay evidence is admissible so long as it is found to be “credible and trustworthy”: Gardiner, at p. 414. This common law principle is codified in s. 723(5) of the Criminal Code. Character evidence is also specifically admissible in a dangerous offender proceeding pursuant to s. 757 of the Criminal Code.
[140] In Williams, the Court concluded “that while [police] synopses are generally admissible, they must be treated with caution.”[101]
[141] Rouleau J.A. explained the proper approach to the use and assessment of police synopses in a dangerous offender proceeding:
[53] Despite the broad approach to admissibility at the sentencing stage, it is not the case that the offender is deprived of all protections: Jones, at p. 292. The Crown must prove disputed aggravating facts beyond a reasonable doubt: Jones, at p. 292, quoting Gardiner, at p. 414; see also s. 724(3)(e) of the Criminal Code. The corollary to this principle in a dangerous offender proceeding is that the Crown must prove the statutory elements of dangerousness beyond a reasonable doubt: Joseph A. Neuberger, Assessing Dangerousness: Guide to the Dangerous Offender Application Process, loose-leaf (Toronto: Thomson Reuters Canada, 2017), at pp. 6-5 to 6-6; Boutilier, at para. 36, n. 1; R. v. Jackson (1981), 1981 CanLII 3281 (NS CA), 61 C.C.C. (2d) 540 (N.S.C.A.), at p. 544, leave to appeal refused, [1982] S.C.C.A. No. 423; Ziegler, at para. 6.
[54] As described above, the sentencing judge accepted the entire contents of the police synopses as proven beyond a reasonable doubt. In my view, this was an error. The sentencing judge ought not to have treated this as an all or nothing decision. The synopses were properly admitted but the contents had to be considered carefully before being relied upon. Some basic facts set out in the synopses can be used for the purposes of establishing details such as dates and ages: Gibson (admissibility ruling), at para. 8; Gibson (dangerous offender designation), at para. 34. Other facts, where support can be found in other parts of the record, can likewise be relied upon: Gibson (dangerous offender designation), at para. 34. This does not, however, lead to the conclusion that the entire contents of the document can be taken as proven beyond a reasonable doubt.
[55] Due to the evidentiary frailties inherent in the nature of a police synopsis, caution is required when the sentencing judge is considering whether the contents of those records can, along with the rest of the record, provide the basis for a finding that the statutory elements of dangerousness have been proven beyond a reasonable doubt. The incidents set out in the synopses must be considered in light of all of the evidence led at the hearing. Certain parts of a synopsis may find support and confirmation, either directly or by reasonable inference, in other parts of the record. If so, it is open to the sentencing judge to rely on those incidents as evidence in support of a finding that the statutory elements of dangerousness, such as the requisite pattern of behaviour, are made out.
[Emphasis added]
As with the testimony of live witnesses, there is no presumption of credibility or reliability attached to documentation.
[144] In my view, the recognized need for caution in Williams about police synopses is also apposite in regard to Correctional Service documentation. Furthermore, as with the testimony of live witnesses, there is no presumption of credibility or reliability attached to documentation.[104]
In Auguste, the Court relied on its prior decision in Bazile[106]where Vauclair J.A. warned of the need to be cautious with respect to the admissibility of correctional information.
[145] In the recent case of Auguste, this Court was asked to determine the admissibility of evidence concerning (1) the disciplinary correctional offences of an inmate and (2) pending criminal charges in dangerous offender proceeding. The Court articulated the applicable principles derived from s. 757 Cr.C.:
[10] L’appelant conteste l’admissibilité de la preuve de ses manquements carcéraux et de certaines causes pendantes.
[11] En sus des articles 723 et 724 du Code criminel, la procédure entourant la déclaration de délinquant dangereux ou à contrôler comporte une disposition spécifique concernant la preuve de moralité (« character ») qui peut être présentée. L’article 757 prévoit :
|
Preuve de sa moralité
757. Sans préjudice du droit pour le délinquant de présenter une preuve concernant sa moralité ou sa réputation, une preuve de ce genre peut, si le tribunal l’estime opportun, être admise : a) sur la question de savoir si le délinquant est ou non un délinquant dangereux ou un délinquant à contrôler;
b) relativement à la peine à infliger ou à l’ordonnance à rendre sous le régime de la présente partie. |
Evidence of character
757 Without prejudice to the right of the offender to tender evidence as to their character and repute, if the court thinks fit, evidence of character and repute may be admitted
(a) on the question of whether the offender is or is not a dangerous offender or a long-term offender; and
(b) in connection with a sentence to be imposed or an order to be made under this Part. |
[12] Ce régime de preuve s’explique aisément par la nécessité de présenter une preuve tant sur les éléments rétrospectifs que prospectifs propres à l’évaluation requise avant de prononcer une déclaration de délinquant dangereux. En cette matière, « [p]our pouvoir faire l’évaluation exacte du délinquant qui est nécessaire pour fixer une peine appropriée, le juge chargé de déterminer la peine doit disposer de la plus grande gamme possible de renseignements ».
[13] Toutefois, la prudence s’impose à l’égard des condamnations disciplinaires dans les établissements correctionnels, mais cette information est pertinente et permet de tracer le portrait et la personnalité du délinquant. Rien n’indique que les juges n’ont pas respecté cette exigence.[105]
[146] In Auguste, the Court relied on its prior decision in Bazile[106]where Vauclair J.A. warned of the need to be cautious with respect to the admissibility of correctional information:
[47] En matière de détermination de la peine, les rapports carcéraux ne devraient être utilisés qu’avec parcimonie et, encore plus rarement, sous forme de ouï-dire, ce qui exacerbe leur caractère préjudiciable inhérent, particulièrement lorsqu’on prétend y retrouver les aveux du délinquant. La vie en établissement de détention n’est pas de connaissance judiciaire. Elle fait aussi l’objet de stéréotypes tenaces. Les juges ne sont pas particulièrement bien équipés pour saisir pleinement la signification de manquements disciplinaires sans une preuve adéquate. Ces rapports doivent être interprétés avec prudence et à la lumière d’une preuve complète. Par conséquent, ils risquent de prolonger les débats sur des questions souvent très collatérales avec, à la clé, une faible valeur probante.
A sentencing judge must certainly be prudent before concluding that disputed hearsay evidence establishes beyond a reasonable doubt disputed aggravating factors and “will, quite properly, often decline” to do so. Yet, a judge may do so.
[147] I must finally discuss a short endorsement from the Ontario Court of Appeal in Nguyen[107] invoked by both parties.
[148] In Montour[108], my colleague Mainville J.A. quoted authors adopting the very passage of Nguyen alluded to by the parties:
[49] En effet, bien que le ouï-dire puisse constituer une preuve admissible lors de la détermination de la peine, le juge conserve une large discrétion tant en regard de l’admissibilité d’une telle preuve qu’au poids qui peut y être conféré. Comme le signalent les auteurs Robitaille et Winocur :
Hearsay evidence is admissible at the sentencing hearing. However, the judge has discretion regarding whether to accept the hearsay evidence, and the weight (if any) to be placed on it. The judge may require a witness with personal knowledge of the matter to come and testify. Accordingly, where counsel wish to establish a disputed fact, it may be rely on hearsay alone. In the words of the Ontario Court of Appeal [R. c. Nguyen, 2012 ONCA 534]:
The trial judge is entitled to rely on hearsay to make findings of fact on sentence even if the facts are disputed: s. 723(5). Of course, the party relying on the disputed fact carries the onus: s. 724(3)(b). we see no legal impediment to a party discharging that burden with disputed hearsay evidence, although trial judges will, quite properly, often decline to rely on hearsay evidence to prove facts in dispute.
[149] I agree with Nguyen. A sentencing judge must certainly be prudent before concluding that disputed hearsay evidence establishes beyond a reasonable doubt disputed aggravating factors and “will, quite properly, often decline” to do so. Yet, a judge may do so.
[150] Given the stringent standard of proof applicable to aggravating factors, one would expect that the judge’s reasons would articulate how the contradictory evidence on such a key issue, were resolved.[109] The deficiency in the judge’s reasons may preclude an appellate court from being satisfied that the fundamental principle of proof beyond a reasonable has been properly applied.[110] The deficiency may be such as to prevent meaningful appellate review of the correctness of the decision.[111]
The offender must challenge the disputed fact or facts clearly and unequivocally. And once such a challenge is made, the parties must discuss the matter with the sentencing judge and determine how they propose to resolve the disputed facts
[151] As I have endeavoured to demonstrate, an important principle derived from Gardiner is that disputed aggravating facts must be proven by the prosecution beyond a reasonable doubt.
[152] Unfortunately, as far as can be gathered from the submissions presented by the parties during sentencing, and before us, there seems to remain some outstanding uncertainty as to the relationship between the admissibility of reliable hearsay evidence and the process required to settle the debate about disputed facts.
[153] Whenever disputed facts exist, they must be resolved. The fact that the reliable hearsay evidence is admissible does not and cannot resolve the issue of whether disputed facts have been proven beyond a reasonable doubt. Such findings must be explicitly made where the disputed facts are aggravating factors.
[154] Obviously, the offender must challenge the disputed fact or facts clearly and unequivocally. And once such a challenge is made, the parties must discuss the matter with the sentencing judge and determine how they propose to resolve the disputed facts.
[155] The prosecution may decide to rely on the evidence as presented in its documentary reliable hearsay form and only make submissions, or present the evidence through a witness or witnesses, or simply offer witnesses for cross-examination. The offender may also choose to resolve the disputed facts based on submissions, request that a witness with firsthand knowledge of the facts be heard, cross-examine witnesses or a combination of these options.
[156] It is therefore incumbent upon all involved in a sentencing hearing, the judge and the parties, to clarify the true state of affairs and avoid, in advance, any misunderstanding about the disputed facts and their resolution.
…
[174] The distinction between the admissibility of reliable hearsay during sentencing and its use where aggravating facts are disputed by the offender is important. Where the need to differentiate between the two is forgotten or overlooked, significant findings of fact are omitted which can, as it is the case here, unfortunately result in the need of holding a new hearing.
