Supreme Court Divided on Procedural Fairness Question
- January 2, 2016
- Clayton Rice, Q.C.
May a sentencing judge deviate from the range of sentence established by the courts for a particular offence? Is it open to a sentencing judge to consider the frequency of a particular crime in the community where the offence was committed? These were the broad questions considered by the Supreme Court of Canada in its split 5-2 ruling in R v Lacasse, 2015 SCC 64 released on December 17, 2015. The question of procedural fairness arose in the application of the doctrine of judicial notice in the context of the second issue. Let’s begin with the tragic circumstances.
On June 17, 2011, at about 4:00 a.m., Tommy Lacasse lost control of his vehicle while entering a curve on a country road in Sainte-Aurelie, Quebec. The area is called the Beauce region. He was impaired by alcohol and speeding. Nadia Pruneau, who was celebrating her 18th birthday that night, and Caroline Fortier, aged 17, were in the back seat. They both died instantly. Lacasse became “deeply distressed” and suicidal following the accident. He pleaded guilty to two counts of impaired driving causing death under s. 255(3) of the Criminal Code. He was 20 years old at the time of the sentence hearing with no prior criminal history. The sentencing judge imposed two concurrent terms of 6 years and 6 months imprisonment. The Quebec Court of Appeal reduced the sentence to 4 years imprisonment because the sentencing judge departed from the sentence range outlined in R v Comeau, 2008 QCCQ 4804 and R v Pare, 2011 QCCA 2047. The Supreme Court set aside the judgment of the Court of Appeal and restored the global sentence of 6 years and 6 months.
The majority and dissenting opinions were in agreement on the law regarding sentencing ranges. The court was thus unanimous that sentencing ranges are not “averages” or “straightjackets” but a tool for the use of sentencing judges in the exercise of their discretion. Writing for the five member majority, Justice Richard Wagner described the principle of parity of sentences, at paras. 56-7:
“The principle of parity of sentences has sometimes resulted in the adoption of a system of sentencing ranges and categories. This concern for parity in sentencing did not originate with the codification of the principle in 1996. As early as the 19th century, ‘tariffs’ were being used by the English courts: D.A. Thomas, Principles of Sentencing (2nd ed. 1979), at p. 29. The tariffs synthesized, as it were, the relevant principles applicable to each type of crime in order to standardize sentencing for it.
Tariffs differ from sentencing ranges in that tariff-based sentencing is theoretically the opposite of sentence individualization, which the ranges allow…On the other hand, the principle underlying the two approaches is the same: ensuring that offenders who have committed similar crimes in similar circumstances are given similar sentences. The same is true of the starting-point approach, which is used mainly in Alberta but sometimes also in other Canadian provinces: R v McDonnell,  1 SCR 948, at para. 69. Ultimately, whatever mechanism or terminology is used, the principle on which it is based remains the same. Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered ‘averages’, let alone straightjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case.”
Justice Clement Gascon, writing in dissent with the concurrence of Chief Justice Beverley McLachlin, agreed on this point at para. 143: “…[I]t is accepted that the ranges established by appellate courts are in fact only guidelines, and not hard and fast rules. A judge can therefore order a sentence outside the established range as long as it is in accordance with the principles and objectives of sentencing. Regard must be had not only to the circumstances of the offence and the needs of the community in which the offence occurred, but also to the circumstances of the offender…As a corollary, the mere fact that a sentence falls within the range applicable to a certain type of crime does not necessarily make it fit, since the judge may, in determining the sentence, have failed to take account of the particular circumstances of the offender. It is by analyzing the trial judge’s reasoning or thought processes that an appellate court can determine whether a sentence that falls within the proper range is tailored to fit the circumstances of the offender and is therefore individualized and proportionate.”
The court was also unanimous that the frequency of a particular offence in a community can be a relevant factor. There was disagreement, however, on an important issue of procedural fairness and how local conditions may be established. It is an important point in the Canadian constitutional structure where criminal law is federal jurisdiction unlike the United States and Australia. Justice Wagner said this, at paras. 89-90:
“Even though the Criminal Code applies everywhere in the country, local characteristics in a given region may explain certain differences in the sentences imposed on offenders by the courts. The frequency of a type of offence in a particular region can certainly be a relevant factor for a sentencing judge.
Although the fact that a type of crime occurs frequently in a particular region is not in itself an aggravating factor, there may be circumstances in which a judge might nonetheless consider such a fact in balancing the various sentencing objectives, including the need to denounce the unlawful conduct in question in that place and at the same time to deter anyone else from doing the same thing. It goes without saying, however, that the consideration of this factor must not lead to a sentence that is demonstrably unfit.”
Turning, then, to the question of procedural fairness – the point of this post – the issue arose this way. The sentencing judge had emphasized the particular situation in the Beauce region where approximately one in five cases involved an impaired driving offence. He called impaired driving a “scourge” in his district and posed the question whether driving while impaired was “trivialized” more than elsewhere. The issue thus arose whether, and to what extent, a sentencing court may take judicial notice of conditions in the local community. Justice Wagner gave a wide latitude to sentencing judges who are in the best position to know the nature of the cases before the court, at paras. 94-5:
“It is true that considerations of procedural fairness will generally require that a judge who intends to attach weight to the local reality and to the frequency of a crime in a given region offer the parties an opportunity to make representations on the subject. However, this was not an issue in the case at bar, given that the local reality was not in dispute. The record shows that the point about the local reality was raised by the appellant [the prosecutor] in argument in a timely fashion and that the respondent therefore had all the information he needed in deciding to say nothing in this regard.
In any event, I am of the view that it was open to Judge Couture to take judicial notice of the evil represented by the large number of offences related to drinking and driving that are committed in the Beauce district. Judge Couture was the resident judge in that district. He was therefore in a position to observe and assess the magnitude of the problem in his region, especially given that it is well established in our law that judges can take judicial notice of the contexts in which they perform the duties of their offices…In the case at bar, the frequency of impaired driving offences is something that can be determined objectively by consulting the court rolls. In short, it is public information that is known and uncontroversial, and the local reality was not in dispute in the instant case.”
In dissent, Justice Gascon urged a valid caution, at para. 158, in establishing the scope of judicial notice. According to the majority, judicial notice is not limited to the magnitude of the problem observed by the judge in his region, but can be extended to a comparison of the local situation with those in other places as well as to information gathered from court records. This goes farther than judicial notice that a city has a francophone majority or of recent unlawful conduct in a particular community. The majority opinion extends the doctrine of judicial notice to presumably embrace self-initiated research by the sentencing judge which, of course, is contrary to the foundation of a doctrine that relies on the notorious nature of a fact in the community such that it is beyond dispute between reasonable people and thus does not require research and evidence. Justice Gascon went on to make the following important point about procedural fairness, at paras. 162-3:
“…[T]he judge cannot be criticized for his comments on the situation in his region, such as his reference…to…’this scourge’ in his district. However, I find that the opposite is true for his question: ‘Might it be that driving in such a state is trivialized here more than elsewhere?’
…[T]here is no indication that the trial judge in the case at bar was in a position to take judicial notice of the fact that impaired driving is trivialized in the Beauce region more than elsewhere. In this regard, knowing the impact on sentencing of that factor, which he considered to be aggravating, and the particular weight he was going to attach to it in imposing a more severe sanction, he should, in the interest of procedural fairness, have informed the respondent of his concerns on this point and requested submissions from him. But he did not do so, even though the importance he attached to that aggravating factor ultimately led him to impose a sentence that favoured exemplarity at the expense of proportionality.”
The law regarding the conduct of sentence hearings in Canada was not in dispute in Lacasse nor is it generally a subject of contention. The Supreme Court of Canada affirmed over thirty years ago in R v Gardiner,  2 SCR 368 that the rules of evidence and procedure apply to sentence hearings as well as trials. Any extra-record fact must be proved by admissible evidence unless admitted by the parties. Although aggravating and mitigating facts are frequently admitted, that practice does not change the law. And despite the latitude judges have in sentence hearings to rely upon admitted facts and the submissions of counsel, as Justice Gascon urged, at para. 160, “…they must never lose sight of procedural fairness.” Convenience must always yield to the basic rule that parties be given the opportunity to respond to all facts that influence the disposition of the case. (See: Delisle, Stuart and Tanovich. Evidence: Principles and Problems (9th ed.), at p. 357)
It is a dangerous development in the law to expand the doctrine of judicial notice to embrace statistical findings based on court records and the drawing of sociological inferences from them. And it is important to emphasize that courts function at common law to decide disputes based upon the evidence produced by the parties. It is not the role of sentencing judges to conduct inquiries on behalf of society at large.