IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO) JAMES PETER SIPOS -AND- HER MAJESTY THE QUEEN FACTUM OF THE INTERVENER

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1 Court File No.: IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO) BETWEEN: JAMES PETER SIPOS Appellant (Appellant) HER MAJESTY THE QUEEN Respondent (Respondent) -AND- -AND- CRIMINAL LAWYERS' ASSOCIATION (ONTARIO) Intervener FACTUM OF THE INTERVENER CRIMINAL LAWYERS' ASSOCIATION (ONTARIO) (Pursuant to Rules 37 and 42 of the Rules a/the Supreme Court a/canada) RUBY SHILLER CHAN HASAN II Prince Arthur Avenue Toronto, ON M5R IB2 Nader R. Hasan Gerald Chan Tel: (416) Fax: (416) gchan(al,rubyshiller.com Counsel for the Intervener, Criminal Lawyers' Association (Ontario) GOWLING LAFLEUR HENDERSON Barristers and Solicitors Elgin St., Box 466, Station D Ottawa, ON KIP IC3 Guy Regimbald Tel: (613) Fax: (613) Ottawa Agent for the Intervener, Criminal Lawyers' Association (Ontario)

2 ORIGINAL TO: The Registrar 301 Wellington Street Ottawa, ON KIA on COPIES TO: DAWE & DINEEN John St. Toronto, ON M5T lx3 Jonathan Dawe Michael Dineen Tel: (416) Fax: (416) / Counsel for the Appellant, James Peter Sipos GOWLING LAFLEUR HENDERSON Barristers and Solicitors Elgin St., Box 466, Station D Ottawa, ON KIP le3 Guy Regimbald Tel: (613) Fax: (613) Ottawa Agent for the Appellant, James Peter Sipos ATTORNEY GENERAL OF ONTARIO 720 Bay St., 10 th Floor Toronto, ON M5G 2Kl Roger A. Pinnock Tel: (416) Fax: (416) Counsel for the Respondent, Her Majesty the Queen BURKE-ROBERTSON 441 MacLaren St., Suite 200 Ottawa, ON K2P 2H3 Robert E. Houston, Q.C. Tel: (613) Fax: (613) Ottawa Agent for the Respondent, Her Majesty the Queen 11

3 TABLE OF CONTENTS PART I: STATEMENT OF FACTS 1 PART II: THE CLA'S POSITION ON THE QUESTION IN ISSUE 1 PART III: STATEMENT OF ARGUMENT 2 I. Sentencing Requires a Flexible Approach to Fresh Evidence 2 II. The Court of Appeal's Approach Erodes Part XXIV's Safety Valves 5 PART IV: SUBMISSIONS ON COSTS 10 PART V: NATURE OF THE ORDER REQUESTED 10 PART VI: TABLE OF AUTHORITIES 11 PART VII: LEGISLATION CITED 13 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, being 14 Schedule B to the Canada Act 1982 (U.K.), 1982, c 11, ss. 7, 9, 12 Criminal Code, R.S.C. 1985, c. C-46, s Criminal Code, R.S.C. 1985, c. C-46, ss. 722, Criminal Code, R.S.C. 1985, c. C-46, s Criminal Code, R.S.C. 1985, c. C-46, s Criminal Code, R.S., c. C-34 (version in force from ), s Criminal Code, R.S., c. 53 (version in force from ), s iii

4 1 PART I: STATEMENT OF FACTS 1. The Criminal Lawyers' Association (Ontario) (the "CLA") accepts the facts as set out in the parties' facta. The CLA takes no position on disputed facts. PART II: THE CLA'S POSITION ON THE OUESTION IN ISSUE 2. This appeal raises the important question of whether an appellate court can fashion a fit sentence based on what the sentence should be now, with regard to currently available evidence of the offender's circumstances, or whether the appellate court's inquiry must focus exclusively on what would have been the appropriate sentence at the original sentencing hearing. The Ontario Court of Appeal held that because appellate review was essentially a "backwards-looking", errorcorrecting exercise, it needed to determine a fit sentence by putting itself in the shoes of the sentencing court at the original sentencing hearing (in this case 16 years ago). 3. The CLA respectfully submits that the Court of Appeal erred in its approach. Where an appellate court is presented with fresh evidence of the offender's post-sentencing rehabilitative progress, the appellate court ought to determine the appropriate sentence by asking what would be a fit sentence now. 4. This conclusion is compelled by the role of the sentencing court. The Court of Appeal's decision is unduly formalistic in a context in which this Court has expressly rejected formalism. Sentencing proceedings are informal and flexible, with the focus placed on achieving individualized justice through judicial discretion. Freezing the evidentiary record at some point in the past (sometimes distant past) is inconsistent with the individualized, proportionate approach to sentencing that this Court has repeatedly endorsed. Where fresh evidence is admissible, the proper approach is for an appellate court to determine a fit sentence today, having regard to all of the offender's circumstances based on the most current available information - regardless of whether the appellate court has found an error in principle in the original sentencing decision. 5. While this approach ought to apply to all sentencing proceedings, it is even more compelling 111 the context of dangerous offender proceedings. The Court of Appeal's approach risks undermining an important safety valve in the Criminal Code's dangerous offender ("D.O.") regime. The D.O. regime, entrenched in Part XXIV of the Criminal Code, authorizes the sentencing court to impose the ultimate punishment known to Canadian law: indefinite detention. The D.O. regime is 1

5 2 justifiable under the Canadian Charter of Rights and Freedoms only because of the various procedural rights and safety valves that help ensure that only a handful of dangerous individuals who are beyond rehabilitation remain incarcerated indefinitely. The offender's ability to present evidence of rehabilitative progress to an appellate court is a necessary safety valve. Its removal would undermine the constitutionality of the D.O. regime. PART III: STATEMENT OF ARGUMENT I. SENTENCING REQUIRES A FLEXIBLE ApPROACH TO FRESH EVIDENCE 6. The Court of Appeal's approach nms counter to the fui:j.damental purposes and principles of sentencing. The "overarching duty of a sentencing court" is to determine a just and appropriate sentence that reflects "the gravity of the offence coll1.lpitted and the moral blameworthiness of the offender."l This principle, codified in the Criminal Code as the proportionality principle, is the "fundamental principle of sentencing,,,2 and is, as this Court has recently described, "the sine qua non of a just sanction.,,3 7. Application of the proportionality principle requires the sentencing court to consider both the gravity of the offence and the moral blameworthiness of the offender and to identify a range of sentence proportionate to both. While consideration of the "gravity of the offence" generally focuses on the offender's conduct at a fixed point in time (the time of the offence), sentencing courts have never imposed a fixed time period for assessing the offender's moral blameworthiness. Courts routinely take into account mitigating factors that cast light on the offender's post-offence moral blameworthiness, including: (a) an offender's good conduct even where it is undertaken subsequent to the commission of the offence. 4 (b) an expression of genuine remorse;5 (c) a plea of guilty;6 1 R. v. Proulx, [2000] I S.C.R. 61 at para. 61; see also R. v. C.A.M, [1996] I S.C.R. 500 at para. 82; R. v. Ipeelee, [2012] I S.C.R. 433 at para Criminal Code, R.S.C., 1985, c. C46, s ("A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender."). 3 R. v. Ipeelee, supra at para. 37 (S.C.C.). 4 R. v. Ansley, [1974] O.J. No. 938 at paras. 3-4 (C.A.). See also Allan Manson, The Law a/sentencing (Toronto: IIWin Law, 2001) at R. v. Proulx, supra at para. 113 (S.C. C.); R. v. Nash, [2009] N.B.J. No. 17 at para. 40 (C.A.) ("The expression of ~enuine remorse is always regarded as a mitigating factor."). R. v. Edgar, [2010] O.J. No at para. II I (C.A.). 2

6 3 (d) (e) cooperation with the Crown or police; 7 and collateral consequences for the offender, including loss of job or adverse immigration consequences The sentencing courts' routine consideration of these post-offence mitigating factors shows that the assessment of an offender's moral blameworthiness should be based on the best available and current evidence. Accordingly, the current practice among most appellate courts is to receive fresh evidence of an offender's post-sentencing activities (e.g., counselling obtained in the penitentiary, and educational and professional accomplishments in the community while on bail pending appeal).9 Many appellate courts engage in this practice even where they have found ~o error in principle in the original sentencing decision.!o 9. The Court of Appeal's approach is inconsistent with the broad, flexible approach to moral blameworthiness that characterizes sentencing courts' approach to proportionality. If the circumstances of the offender are not limited to those that existed at the time of the offence, then there is no principled reason for limiting them to those that existed at the time of the original sentencing hearing. The Court of Appeal's holding imposes an arbitrary temporal cut-off for factors that would otherwise go into the sentencing calculus. 10. Related to the proportionality principle is the principle of individualization, which this Honourable Court has repeatedly emphasized as an important principle in the sentencing process.!! Subject to any statutory rules that have survived Charter scrutiny, sentencing judges "must have sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and the particular offender.,,!2 An individualized, properly tailored sentence requires that sentencing courts take into account the best available and current information of the offender's current circumstances and current prospects for rehabilitation. 7 R. v. C.N.H, [2002] O.I. No at para. 42 (C.A.); R. v. Hein, [2008] B.C.I. No. 978 at para. 23 (C.A.). 8 R. v. Pham, [2013]1 S.C.R. 739 at para. II. 9 See this Court's comments in R. v. Levesque, [2000] 2 S.C.R. 487 at para. 32. See also Appellant's Factum at paras See Appellant's Factum at para. 25 and footnote 16. II R. v. Pham, supra at para. 8 (S.C.C.). 12 R. v. Ipeelee, supra at para. 38 (S.C.C.) (emphasis added). 3

7 4 11. Further, many of the objectives of sentencing are inherently forward-looking. The Criminal Code identifies six objectives of sentencing. 13 Many of these goals - e.g., rehabilitation, specific deterrence, promoting a sense of responsibility in the offender - ask the sentencing court to prognosticate on the future impact of the sentence on the offender. As the sentencing court does not have a crystal ball to see into the future, it makes that assessment based on the best available current information. To ignore the most current available information about an offender's prospects of rehabilitation "would be ostrich-like.,, The evidentiary rules applicable to sentencing proceedings embody these principles. These rules emphasize the need for current, accurate and specific information about the offender. They are necessarily flexible and informal and designed to ensure that the sentencing court has before it all relevant information to fashion a proportionate and individualized sentence. As this Court held in R. v. Gardiner, "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.,,15 For example, facts are often proffered through counsel, rather than witnesses; hearsay is adrnissible;16 character evidence (good and bad) is relevant;17 and victim impact statements must be considered. IS 13. In R. v. Levesque, this Court explained that the purpose behind the flexible approach to sentencing is that for the sentencing judge to determine an appropriately tailored, individualized sentence for that particular offender, the court "must have as much information as possible about [the offenderj.,,19 This requires relaxing certain evidentiary rules to ensure a full record. 14. It runs counter to this broad and flexible approach for an appellate court to close itself off from information about the circumstances of the offender just because the information concerns 13 Criminal Code, supra, s. 718 (current version). These objectives include: "(a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (I) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.". 14 R. v. Scanlon, [1995] M.I. No. 661 at para. 27 per Twaddle I.A (C.A.). IS R. v. Gardiner, [1982]2 S.C.R. 368 at Criminal Code, supra, s. 723(5) (current version). 17 R. v. Angelillo, [2006]2 S.C.R. 728 at para. 27; R. v. McNamara ef al. (No.2), [1981] O.I. No at paras. 8, 12 (C.A.). 18 Criminal Code, supra, s. 722(1) (current version). 19 R. v. Levesque, supra at para. 30 (S.C.C.). 4

8 5 post-sentencing activities. This is particularly true where, as here, so much time has elapsed between the sentencing and the appeal The Court of Appeal relied on the principle of "finality" to justify its holding. But as noted above, finality is not the only important principle in play in this case. Moreover, concerns about finality are adequately addressed by: (i) the four-part Palmer test 21, which significantly limits the number of cases in which fresh evidence can be adduced;22 and (ii) the fact that this issue arises only in those cases that remain in the system because of an ongoing appeal. Further, those offenders most likely to have fresh evidence relating to sentencing are those who are subject to longer sentences, thereby limiting the number of offenders for whom this issue arises.' Far from undermining finality in the system, the opportunity to present post-sentencing fresh evidence in reality would be afforded to a small group of prisoners serving lengthy sentences and thus for whom the stakes are especially high. 16. Finally, this Court should not be concerned about the possibility of appellants prolonging their sentence appeals in order to buy time to gather further evidence of mitigation. As this Court has noted, the current practice among most appellate courts is to receive fresh evidence of an offender's post-sentencing activities,23 and there is no suggestion that the courts are overwhelmed by sentencing appeals based on fresh evidence. Appellate courts are entirely capable of managing their own processes to avoid prolix or abusive re-litigation of matters already decided. Further, the idea that inmates would prolong their sentence appeals to gain an advantage is self-defeating, as less time is the thing being requested. II. THE COURT OF ApPEAL'S ApPROACH ERODES PART XXIV's SAFETY VALVES 17. Although the above-described flexible approach to fresh evidence should apply to all sentencing proceedings, it has even greater force in the D.O. context. The ability to consider post- 20 See Appellant's Factum at paras (for procedural history). 21 Palmerv. The Queen, [1980]1 S.C.R See R. v. Levesque, supra at paras. 12, 19 (S.C.C.). The Palmer test requires an appellant to establish: (i) the evidence could not have been adduced at trial even by due diligence, although this principle will not be applied as strictly in criminal cases as in civil cases; (ii) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (iii) the evidence must be credible in the sense that it is reasonably capable of belief, and (iv) the evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. 23 See R. v. Levesque, supra at para. 32 (S.C.C.). 5

9 6 sentence conduct is a necessary safety valve to the D.O. regime. The elimination of this safety valve undermines the constitutionality of the D.O. regime. 18. The D.O. regime in Part XXIV of the Criminal Code is an exceptional punishment both because of its preventive and indefinite nature. A fundamental premise of our criminal justice system is that people can only be punished for acts or omissions that contravene the law that have been proven on the highest standard of proof. Preventive detention - locking someone because of a risk of future dangerousness - is a glaring exception to these principles Further, a dangerous offender designation carries with it the punishment of indefinite detention. This is the most serious jeopardy available under our laws. The effects of a dangerous offender designation, as this Court has noted, are thus "profoundly devastating" to the individual Given the jeopardy involved under the D.O. regime, the attendant procedural safeguards must be correspondingly high for the D.O. regime to pass constitutional muster under the Charter. 26 This principle lies at the heart of this Court's decision in R. v. Lyons. In Lyons, this Court considered a challenge to the D.O. regime under ss. 7, 9 and 12 of the Charter. A majority of this Court upheld the regime. That holding was premised in part on certain procedural safeguards that existed in the D.O. regime at the time. First, and most important, the availability of parole was an indispensable safety valve for the regime. 27 The possibility of parole within three years meant that detention was indeterminate but not necessarily permanent. It was this possibility of release that saved the dangerous offender regime from violating the "right not to be subjected to any cruel and unusual treatment or punishment" under s. 12 of the Charter. 28 Absent the availability of parole, a sentence of indefinite detention "would be certain, at least occasionally, to result in sentences grossly disproportionate to what individual offenders deserved.,,29 24 See Isabel Grant, "Dangerous Offenders" (1985) 9 Dalhousie L.J. 347 at (for discussion of historical origins of preventive sentencing in Canada). 25 R. v. Lyons, [1987]2 S.C.R. 309 at See Charkaoui v. Canada (Citizenship and Immigration), [2007]1 S.C.R. 350 at para. 60 ("It is one thing to deprive a person of full infonnation where fingerprinting is at stake, and quite another to deny him or her infonnation where the consequences are removal from the country or indefinite detention."). 27 R. v. Lyons, supra at (S.C.C.). 28 Ibid, at Ibid, at

10 7 21. Second, the parole board was required to consider parole after three years from the date of arrest. 30 The Court considered this periodic review another important safety valve in the dangerous offender regime. 22. Third, the sentencing court retained residual discretion not to designate the offender as dangerous offender and not to impose an indeterminate sentence even in circumstances where the criteria set out in s. 687 (now s. 753) were met. 3l These safeguards, among others, ensured that the D.O. regime would capture only "a very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventive incarceration.,, Since Lyons was decided, however, the above-referenced safeguards have been either eliminated or exposed as illusory. First, the empirical evidence that has emerged since Lyons shows that parole is illusory in the D.O. context - a fact that Doherty J.A. acknowledged in the court below. 33 The empirical evidence tendered and accepted in trial coulis, and uncontradicted by the Crown, shows that "only 1 % of those declared to be dangerous offenders ever get OUt.,,34 academic study based on the most current available data found that as of June, 2010, 316 people had been designated dangerous offenders under the post-1997 version of the D.O. regime. 35 Although 136 offenders had served enough time to be statutorily eligible for some form of release, only one had been granted any relief (in that case, day parole).36 The percentage of post-1997 dangerous offenders actually released on parole thus is even lower than the 1 % cited by experts and accepted by trial and appellate courts as the reason for why parole is illusory. The stark reality is that for dangerous offenders, "[t]he form of release that is most predominant is death.,,37 An 30 Ibid., at Ibid., at Ibid., at R. v. Sipos, [2012] O.J. No at para. 26 (C.A.) ("It may be argued that the potential for parole is illusory."); see also R. v. W.E.J.M, [2009] OJ. No at para. 44 (C.A.). 34 R. v. Mumford, [2007] O.J. No at para. 252 per Kiteley J (S.CJ.). 35 Terry Nicholaichuk, Mark E. Olver, Degiang Gu, Yoshiko Takahashi, "Correctional Careers of Dangerous Offenders" (2013) 59 C.L.Q. 487 at The most recent official report from the Government of Canada notes that, among the currently 486 active dangerous offenders, 18 are on some form of conditional release (3.7%). See Public Safety Canada, "Corrections and Conditional Release: Statistical Overview," 2012 Annual Report, online: ccrsiindex-eng.aspx#e3. Public Safety Canada does not provide separate statistics for dangerous offenders designated friorto the 1997 amendments and those so designated after the 1997 amendments. 7 Charles B. Davison, "The Next Step after Johnson: The Royal Prerogative of Mercy and Dangerous Offenders" (2003), 13 C.R. (6' h ) 227 at 228 (quoting Kirk Makin, "Inmates Know They'll Likely die in Jail: The Plight of Canada's Dangerous Offenders", Globe and Mail (July 20, 2005)). 7

11 8 24. The unavailability of parole for dangerous offenders is at least partly a result of the lack of resources and programs allocated to those deemed to be dangerous offenders. Correctional authorities prioritize rehabilitative programs for those closest to their release date. 38 As dangerous offenders may never be released, they are perpetually at the end of the queue for those programs that could assist in the rehabilitative process. 39 As Kiteley I has observed, "an indeterminate sentence is in reality a life sentence because, unless the offender achieves some miraculous selfrealized transformation, the Parole Board will never grant parole.,,40 Given that the constitutional validity of the D.O. regime was premised in part on the availability of parole, this empirical evidence casts doubt on the constitutionality of the entire regime. Feldman la. stated this point succinctly for a unanimous Ontario Court of Appeal in W.E.J.M.: In R. v. Lyons,... the constitutional validity of the dangerous offender designation was premised in part on the fact that a designated offender has the possibility of obtaining release on parole... If, in reality, there is virtually no chance of achieving parole for offenders who would first require treatment, and who are unlikely to receive it, then the basis for the validity of the provision is subject to challenge Second, Parliament has made significant changes to the D.O. regime since Lyons. Prior to 1997, even where the sentencing court concluded that an offender should be designated a dangerous offender, the judge retained the discretion to impose either a determinate or indeterminate sentence. 42 indeterminate sentence. 43 After the 1997 amendments, however, a dangerous offender finding compelled an years to seven years from the date of arrest. 44 The 1997 amendments also increased the parole review date from three 26. Another round of amendments in 2008 further limited the sentencing judge's discretion to refuse to declare someone a dangerous offender. Prior to the 2008 amendments, a sentencing court had discretion to not find an offender to be dangerous even if the s. 753 criteria were satisfied. 45 After the 2008 amendments, the sentencing judge "shall" find an offender to be dangerous if the s. 753(1) criteria are satisfied; the court no longer retains a residual discretion to refuse to designate 38 R. v. Mumford, supra at para. 252 (Ont. S.C.J.). 39 Charles B. Davison, "The Next Step after Johnson, The Royal Prerogative of Mercy and Dangerous Offenders", supra at R. v. Mumford, supra at para. 253 (Ont. S.C.J.). 41 R. v. W.E.J.M., supra at para. 60 (Ont. C.A.) (internal citations omitted). 42 After finding that the offender to be a dangerous offender, the sentencing court "may thereupon" impose an indeterminate sentence. Criminal Code, , c. 53, s. 688 (version in force from ). 43 Criminal Code, R.S., c. C-34, s. 753 (version in force from ). 44 Criminal Code, supra, s. 761(1) (current version). 45 Criminal Code, supra, s. 753 (version in force from ). 8

12 9 someone a dangerous offender. 46 While the 2008 amendments reintroduced a very narrow measure of discretion to impose a determinate sentence for dangerous offenders,47 the 2008 amendments also created a presumption of dangerousness for individuals convicted of a third "primary designated offence" if it would be appropriate to impose a sentence of imprisonment of two years or more; the offender was convicted previously at least twice of a primary designated offence; and the offender was sentenced to at least two years of imprisonment on each ofthose occasions These changes to the D.O. regime since Lyons have prompted commentators to question whether Lyons would be differently decided if argued today.49 Indeed, the elimination of the sentencing court's discretion to not declare an offender to be a dangerous offender would appear to be particularly problematic given this Court's remarks in R. v. Johnson that the absence of such discretion "would introduce an unnecessary rigidity into the process and overshoot the public protection purpose of the dangerous offender regime,,,50 and its observation that the existence of such discretion was central to the Court's conclusion in Lyons that the dangerous offender regime did not violate the prohibition on cruel and unusual punishment Third, the D.O. regime disproportionately affects Aboriginal offenders. According to the latest national census, 4.3% of the total Canadian population reported an Aboriginal identity. 52 those sentenced under the original D.O. regime considered in Lyons ( ), 14.5% were Aboriginal. Of those sentenced after the 1997 amendments, 24% are Aboriginal. 53 The numbers continue to trend upward: Of those sentenced since February 2003, 28.3% are Aboriginal. 54 Canada locks up Aboriginal offenders indefinitely in a manner that is grossly disproportionate to Of 46 Criminal Code, supra, s. 753{l) (current versiou). 47 Ibid., s. 753(4.1) (The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence."). 48 Ibid., s. 753(1.1). 49 Allan Manson, The Law a/sentencing, supra at 328 (referring to 1997 amendments and concluding that "the statutory framework has been changed in a number of substantial ways since the decision in Lyons and therefore one cannot now treat it as conclusive"); Clayton Ruby et ai, Sentencing, 8 th ed. (Toronto: LexisNexis, 2012) at 611 (post-2008 p,rovisions "will undoubtedly be subject of a constitutional challenge"). or. v. Johnson, [2003]2 S.C.R. 357 at para. 20; see also ibid at para. 24 ("A rigid rule that each offender who satisfies the statutory criteria in s. 753(1) must be declared dangerous and sentenced to an indeterminate period of detention undermines a sentencing judge's capacity to fashion a sentence that fits the individual circumstances ofa given case."). " Ibid. at para Government of Canada, Statistics Canada, Aboriginal Peoples in Canada: First Nations People, Metis and Inuit" (2011), National Household Survey, online: x eng.pdfat4. "Terry Nicholaichuk et ai, "Correctional Careers of Dangerous Offenders", supra at Ibid 9

13 1 0 their numbers in the general population. In light of this Court's decisions in Gladue and Ipeelee,55 these facts are cause for significant concern. Any assessment of whether the current D.O. regime passes constitutional muster would necessarily take into account the regime's disparate impacts on historically disadvantaged segments of the population. 29. These developments, alone or together, mayor may not be sufficient to ground a Charter challenge to the current D.O. regime. At a minimum, however, they weaken the delicate constitutional balance in the D.O. regime that this Honourable Court upheld in Lyons. 30. This context is important to the issue on appeal. The appellate court's ability to consider post-sentence evidence is an important safety-valve for offenders in D.O. proceedings. The Appellant here wished to present evidence of his rehabilitative progress since he was first sentenced some 16 years earlier. Given the "illusory" nature of parole, there may not be another effective forum for him to present such evidence. Indeed, the ability to present fresh evidence on appeal may be the final backstop for an offender's liberty before he enters a place in the correctional system from which few ever emerge. Given the erosion of other D.O. regime safety valves since Lyons was decided, it is critical that this remain~ng safety valve be preserved. The limited need for fmality (at the point of the original sentencing hearing) must give way to the constitutional right of the offender to escape a grossly disproportionate sentence. PART IY: SUBMISSIONS ON COSTS 31. The CLA does not seek costs and asks that none be awarded against it. PARTY: NATURE OF THE ORDER REQUESTED 32. The CLA respectfully requests leave to present oral argument for no more than 10 minutes. All of which is respectfully submitted this 3 rd day of April /N~JJA ~ ~~~~G.v..)j cl. V NADER R. HASANIERALD CHAN \ Ruby Shiller Chan Hasan, Barristers Counsel for the CLA 55 R. v. Gladue, [1999]1 S.C.R. 688 at paras ; R. v. ipeelee, supra at paras (S.C.C.). 10

14 1 1 PART VI: TABLE OF AUTHORITIES Case Law Paragrapb(s) Charkaoui v. Canada (Citizenship and Immigration), [2007]1 S.C.R Palmer v. The Queen [1980]1 S.C.R , 17 R. v. Angelillo, [2006] 2 S.C.R R. v. Ansley, [1974] 0.1. No. 938 (C.A.) 7 R. v. C.NH, [2002] 0.1. No (C.A.) 7, R. v. Edgar, [2010] 0.1. No (C.A.) 7 R. v. Gardiner, [1982]2 S.C.R R. v. Gladue, [1999]1 S.C.R R. v. Hein, [2008] B.C.1. No. 978 (C.A.) 7 R. v. Ipeelee, [2012]1 S.C.R ,10,28 R. v. Johnson, [2003] 2 S.c.R R. v. Levesque, [2000] 2 S.C.R , 13, 15, 16 R. v. Lyons, [1987]2 S.C.R ,20,21,22,23, 24,25,27,28,29, 30 R. v. C.A.M, [1996]1 S.C.R R. v. McNamara et al. (No.2), [1981] 0.1. No (C.A.) 12 R. v. Mumford, [2007] 0.1. No (S.C.1.) 23,24 R. v. Nash, [2009] N.B.J. No. 17 (C.A.) 7 R. v. Pham, [2013]1 S.C.R ,10 R. v. Proulx, [2000]1 S.C.R. 61 6, 7 R. v. Scanlon, [1995] M.l. No. 661 (C.A.) 11 R. v. Sipos, [2012] 0.1. No (C.A.) 23 R. v. W.E.J.M, [2009] 0.1. No (C.A.) 23,24 11

15 1 2 Commentary Paragraph(s) Allan Manson, The Law of Sentencing (Toronto: Irwin Law, 2001) 7,27, Charles B. Davison, "The Next Step after Johnson: The Royal Prerogative of 23,24 Mercy and Dangerous Offenders" (2003), 13 C.R. (6 th ) 227 Clayton Ruby, Gerald Chan, Nader Hasan, Sentencing (Toronto: LexisNexis, ) Govermnent of Canada, Statistics Canada, "Aboriginal Peoples in Canada: First 28 Nations People, Metis and Inuit" (2011), National Household Survey Isabel Grant, "Dangerous Offenders" (1985), 9 Dalhousie LJ Public Safety Canada, "Corrections and Conditional Release: Statistical 23 Overview," 2012 Annual Report Terry Nicholaichuk, Mark E. Oliver, Degiang Gu, Yoshiko Takahashi, 23,28 "Correctional Careers of Dangerous Offenders" (2013), 59 C.L.Q

16 1 3 PART VII: LEGISLATION CITED Tab Legislation 1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, being Schedule B to the Canada Act 1982 (U.K.), 1982, c 11, ss. 7, 9, 12 2 Criminal Code, RS.C. 1985, c. C-46, s Criminal Code, RS.C. 1985, c. C-46, ss. 722, Criminal Code, RS.C. 1985, c. C-46, s Criminal Code, R.S.C. 1985, c. C-46, s Criminal Code, RS., c. C-34 (version in force from ), s Criminal Code, RS., c. 53 (version in force from ), s

17 1 4 Canadian Charter of Rights and Freedoms. Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. ********************** 7. Chacun a droit it la vie, it la liberte et it lit securite de sa personne; il ne peut etre porte atteinte it ce droit qu'en conformite avec les principes de justice fondamentale. ********************** 9. Everyone has the right not to be arbitrarily 9. Chacun a droit it la protection contre la detained or imprisoned. detention ou l'emprisonnement arbitraires. ********************** ********************** 12. Everyone has the right not to be subjected to 12. Chacun a droit it la protection contre tous any cruel and unusual treatment or punishment. traitements ou peines cruels et inusites. 14

18 1 5 Code criminel- 4 mars 2014 Purpose Objectives - offences agninst children Obj~tive$offence against peftetl officer or other justice s>,ilcm partieipllnt Fundamental principle Other sentencing principles' PURPOSE AND PRINCIPLES OF SENTENCING 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more. of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (0) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and If) to promote a sellse of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. R.S., 198;, c. C 46, s. 718; R,S" 1985, c, 27 (1st Supp.), s, 155; 1995, c. 22, s When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. 2005, c. 32. s, When a court imposes a sentence for an offence under subsection 270(1), section 270.oJ or or paragraph 423,1(I)(b), the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. 2009, c, 22, s. 18, A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. R.S., 198;, c. 27 (1st Supp.), s, 156; 1995, c, 22, s. 6, A court that imposes a sentence shall also take into consideration the following prin~ ciples: (a) a sentence should be increased or re~ duced to account for any relevant aggravating or mitigating circumstances relating to OBJECTJP BT PRINCIPBS 718. Le prononce des peines a pour objectif Obj,,", essentiel de contribuer. parallelement a d'autres initiatives de prevention du crime, au respect de la loi et au maintien d'une societe juste, paisible et sure par l'infhction de sanctions justes visant un ou plusieurs des objectifs suivants : a) denoncer Ie comportement illegal; b) dissuader les delinquants, et quiconque, de commettre des infractions; 0) isoler, au besoin, les delinquants du reste de I. societe; d) favoriser la "linsertion sociale des delinquants; e) assurer la reparation des torts causes aux victimes ou ilia collectivite;. f) susciter I. conscience de leurs responsabilites chez les delinquailts, notamment par I. reconnaissance du tort qu'ils ont cause aux victimes et a la collectivite, L.R, (1985), ch. C-46, art, 718; L,R. (1985), ch. 27 (I" suppl.), art, ISS; 1995, ch, 22, art, )1 Le tribunal qui impose une peine pour une infraction qui constitue un mauvais traitement it I'egard d'une personne dgee de moins de dix-huit ans accorde une attention particuliere aux objectifs de denonciation et de dissuasion d'un tel comportement. 2005, ch. 32, art Le tribunal qui impose une peine pour l'une des infractions prevues au para~ graphe 270(1), aux articles 270.QI ou ou a I'alinea 423.1(J)b) accorde une attention particuliere aux objectifs de denonciation et de dissuasion de l'agissement a Porigine de l'in~ fraction, 2009, c~. 22, a~ La peine est proportionnelle a la gravit. de I'infraction et au degr. de respons.bili", du delinquant. L;R. (1985), ch. 27 (1 0 ' suppl.), art. 156; en. 22, art; 6, Le tribunal determine la peine a infliger compte tenu egalement des principes suivants: a) In peine devrait etre adaptee aux circonstances aggravantes ou attonuantes Iiees a I. perpetration de I'infraction ou a la situation Objectifinmclion pc:rpctrco R I'easrd des cnfants Objectifsinfraction a. "egnrdd'un agent de Is paix ou autre pctllonne assocleeml II)'stcme judiciai.ro Principe fondamcntal Principesde d6termino.tion de 10 peine 831

19 1 6 Criminal Code - March 4, 2014 the offence or the offender ~ and, without I imiting the generality of the foregoing, (i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner, (ill) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iill) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or (v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances; (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for an offenders, with particular attention to the circumstances of aboriginal offenders. 1995, c. 22, s. 6~ 1997, c, 23, s. 17; 2000, c. 12, s. 95; 200 I, c.32, s. 44(F), c. 41, s. 20; 2005, c. 32, s. 25; 2012, c, 29, s, 2. du delinquant; sont notamment considen;es comme des circonstances aggravantes des elements de preuve etablissant : (i) que I'infraction est motivee par des prejuges au de Ia haine fondes sur des facteurs tels que Ja race, I' origine nationale Oll ethnique, la langue, la couleur, In religion, Ie sexe, l'age, la deticience mentale Oll physique ou l'orientation sexuelle, (Ii) que I'infraction perpetree par Ie delinquant constitue un mauvais traitement de son epoux ou conjoint de fait, (ii.!) que I' infraction perpetree par Ie de Iinquant constitue un mauvais traitement a I'egard d'une personne agee de moins de dix.. huit ans, (iii) que!'infraction perpetree par Ie de Iinquant constitue un abus de Ia confiance', de Ia victime ou un abus d'autorite a son egard, (iii.l) que I'infraction a eu un effet important sur la victime en raison de son a.ge et de tout autre element de sa situation personnelle, notamment sa sante et sa situation financierc. (iv) que I'infraction a ote commise au profit ou SOllS la direction d'une organisation criminelle, ou en association avec eue, (v) que I'infraction perpetree par Ie delinquant est une infraction de terrorisme; b) I'harmonisation des peines, c'est.. it-dire I'infliction de peines semblables a cehes inftigees a des delinquants pour des infractions semblables commises dans des circonstances semblables; c) I'obligation d'eviter I'exces de nature ou de duree dans l'infliction de peines consecutives; d) i'obligation, avant d'envisager Ia privation de liberte, d'examiner la possibhite de sanctions moins contraignantes lorsque les circonstances Ie justificnt; e) I'examen de tolltes les sanctions substitutives apphcabjes qui sont justifiees dans les 832

20 1 7 Code criminel- 4 mars 2014 (a) the offender's age, maturity, character, behaviour, attitude and willingness to make amends; a) Page, Ie degre de maturite, Ie caractere et Ie comportement du delinquant et son desir de "'parer Ie tort; (b) subject to subsection 119(2) of the Youlh Criminal Juslice Acl, the history of previous dispositions under the Young Offenders Acl, chapter Y -I of the Revised Statutes of Canad,a, 1985, the history of previous sentences under the Youlh Criminal Justice Act, and of previous findings of guilt" under this Act and any other Act of Parliament; (c) the history of any alternative measures used to deal with the offender, and the offender's response to those measures; and (d) any matter required, by any reguiation made under subsection (2), to be included in the report. b) sous reserve du paragraphe 119(2) de la Lai sur Ie sysleme de justice pinale pour les adolescents, les antecedents du delinquant en ce qui concerne les decisions rendues en application de la /.oi sur les jeunes conlrevenanls, chapitre Y-I des Lois revisees du Canada (1985), et les peines imposees en application de la Loi sur Ie sysleme de justice penale pour les adolescents au les declarations de culpabilite prononcees ell application de la presente loi au d'une autre loi federale; c) les antecedents du delinquant en ce qui concerne les mesures de rechange qui lui ont ete appliquees et leurs effets sur lui; d) les autres renseignements qui doivent fi.. gurer dans Ie rapport aux termes des regiements d'application du paragraphe (2). Idem (4) The report must also contain information on any other matter required by the court, after hearing argument from the prosecutor and the offender, to be included in the report, subject to any contrary regulation made under subsection (2). (4) Sous reserve des reglements d'application du paragraphe (2), figurent dans Ie rapport les autres renseignements exiges par Ie tribunal apres avoir entendu Ie poursuivant et Ie delinquant. AU~9 renseibncmcnls Copy of report (5) The clerk of the court shall provide a copy of the report, as soon as practicable after filing, to the offender or counsel for the offender, as directed by the court, and to the prosecu.. tor. (5) nans les meilleurs delais possible suivant Ie depot aupres du tribunal du rapport, Ie greffier en fait parvenir une copic au poursui.. vant et, sous reserve des instructions du tribunal, au d6linquant ou a son avocat. Copie du rapport R.S., 1985, c. C-46,,. 721; R,S., 1985, c. 27 (I,t Supp.),,. 203; 1995, c. 22, s. 6; 1999, c. 25, s. 16(Preamble); 2002, c. t.s.183~2003.c. 2t.s.IS~ L.R. (1985), ch. C-46, art. 721; L.R (1985), ch. 27 (I" suppt.), art 203; 1995, ch. 22, art. 6; 1999, ch. 25, art 16(preambu[e); 2002, ch. I. art" 183~ 2003, ch. 21, art. 15. Victim impact slarement 722. (I) For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged pursuant to section 730 in respect of any offence, the court shall consider any statement that may have been prepared in accordance with subsection (2) of a victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence. 722, (I) Pour determiner la peine a infliger au pour decider si un delinquant devrait etre absous en vertu de Particle 730, Ie tribunal prend en consideration la declaration de la victime, redigee en conformite avec Ie paragraphe (2), sur les dommages - corporels ou autresou les pertes causees it celle-ci par la perpetration de I'infraction. Declaration de la victlmc Procedure for victim impllct statement (2) A statement refc~red to in subsection (I) must be (a) prepared in writing in the form and in accordance with the procedures established by a program designated for that purpose by the lieutenant governor in council of the (2) La declaration visee au paragraphe (I) est a rediger sejon la forme et en conformite avec les regles prevues par Ie programme designe par Ie lieutenant-gouverneur en conseil de la province ou siege Ie tribunal et doit eire deposee aupres de celui.. ci. procedure 837

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