R. v. Zinck, [2003] 1 S.C.R. 41, 2003 SCC 6
Thomas Robert Zinck Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario Intervener
Indexed as: R. v. Zinck
Neutral citation: 2003 SCC
6.
File No.: 28367.
2002: October 7; 2003: February 20.
Present: McLachlin C.J. and Gonthier, Iacobucci, Major,
Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.
on appeal from the court of appeal for new brunswick
Criminal law — Sentencing — Delayed parole
eligibility — Interpretation and application of s. 743.6 of Criminal Code
— Whether sentencing judge erred in his application of s. 743.6 — Whether
application of s. 743.6 required evidence of special or exceptional
circumstances — Criminal Code, R.S.C. 1985, c. C‑46, s. 743.6 .
Criminal law — Sentencing — Sentencing hearing —
Procedural fairness — Delayed parole eligibility — Whether Crown should give
offender advance notice of its intention to apply for delayed parole — Whether
sentencing judge’s reasons must clearly state why delayed parole order is made
— Criminal Code, R.S.C. 1985, c. C‑46, s. 743.6 .
Having shot and killed his neighbour, the
accused pleaded guilty to manslaughter. The trial judge sentenced him to a 12‑year
term of imprisonment and ordered that his parole eligibility be delayed for six
years under s. 743.6 of the Criminal Code . The Court of Appeal
upheld the sentence. The accused appealed to this Court on the issue of
delayed parole.
Held: The
appeal should be dismissed.
In the case of criminal offences falling within the
scope of s. 743.6 of the Criminal Code , delaying parole can be a
significant component of a sentence. The extent of conflict in the
interpretation and application of s. 743.6 in the case law has been
overplayed. Generally speaking, delayed parole is a decision that remains out
of the ordinary and must be used in a manner that is fair to the offender. The
sentencing judge must first determine the appropriate punishment for the crime,
taking into account and weighing all relevant factors. The analysis then may
shift to the exercise of the power to delay parole. Section 743.6 should
not be applied in a routine manner. The judge must once again apply the
sentencing factors. In the course of the second balancing, priority is given
to the factors of general and specific deterrence as well as denunciation. The
prosecution has the burden of establishing that additional punishment is
required. Delayed parole should not be ordered without necessity; it should be
invoked only on the basis of demonstrated need.
Section 743.6 does not require the creation of a
special and distinct hearing on the issue of delayed parole. The issue should
be raised in a fair and timely manner so as to allow the offender to respond
effectively. A breach of this basic obligation would justify quashing the
order. There is no obligation on the Crown, however, to give the offender
written notice that delayed parole will be applied for. Fairness requires only
that the offender be informed clearly that a s. 743.6 application is being
made. The offender must be allowed to make submissions and to introduce
additional evidence, if needed. At the end of the process, the offender is
entitled to reasons that must state with sufficient clarity why the delayed
parole order is made. While the reasons need not be elaborate, the basis of
the decision must be at least ascertainable from the record. Deficiencies in
reasons may sometimes require quashing an order.
In this case, the trial judge did not err in his
application of s. 743.6 and his order to delay parole was justified.
Although not extensive, the trial judge’s reasons, viewed as a whole and read
in connection with the evidence and the submissions made at the hearing, permit
an appellate court to ascertain and review the basis of his order. The trial
judge carefully reviewed all relevant facts, particularly the gratuitousness of
the crime and the need to protect the public. They confirm his conclusion that
the objectives of deterrence and denunciation could not be justified without
delaying parole eligibility. The sentencing hearing did not breach the rules
of procedural fairness. In its submissions at the hearing, the Crown asked for
delayed parole. The defence was given a sufficient opportunity to respond, but
failed to use it.
Cases Cited
Referred to: R. v.
Goulet (1995), 97 C.C.C. (3d) 61; R. v. M. (C.A.), [1996]
1 S.C.R. 500; Cunningham v. Canada, [1993] 2 S.C.R. 143; R.
v. Shropshire, [1995] 4 S.C.R. 227; R. v. Chaisson, [1995]
2 S.C.R. 1118; R. v. Dankyi (1993), 86 C.C.C. (3d) 368; Boulanger v.
La Reine, [1995] R.J.Q. 1975; R. v. Ferguson (1995), 64
B.C.A.C. 211; R. v. Smith (1995), 37 C.R. (4th) 360; R. v.
Osborne (1996), 110 C.C.C. (3d) 161; R. v. Nash‑Levy
(1998), 207 N.B.R. (2d) 45; R. v. Traverse (1998), 126 C.C.C.
(3d) 462; R. v. Demedeiros, [1999] O.J. No. 1523 (QL); R. v.
Hanley (1998), 228 A.R. 291; R. v. Matwiy (1996), 105 C.C.C. (3d)
251; R. v. Williston (1999), 209 N.B.R. (2d) 270; R. v. Cormier
(1999), 140 C.C.C. (3d) 87; R. v. Dodd (1999), 139 C.C.C. (3d) 2; Corneau
v. La Reine, [2001] R.J.Q. 2509; R. v. Sheppard, [2002] 1
S.C.R. 869, 2002 SCC 26.
Statutes and Regulations Cited
Corrections and Conditional
Release Act, S.C. 1992, c. 20, ss. 120(1)
[repl. 1995, c. 42, s. 34], (2) [idem], 128(1) [am. idem,
s. 69 (h)], (2) [repl. idem, s. 42 ].
Criminal Code, R.S.C. 1985, c. C‑46, ss. 718 , 743.1(1) [repl. 1995, c.
22, s. 6], (2) [idem], 743.6 [repl. 1995, c. 42, s.
86], 745.4.
Authors Cited
Dumont, Hélène. Pénologie: Le
droit canadien relatif aux peines et aux sentences. Montréal: Thémis,
1993.
Manson, Allan. “Judges and Parole
Eligibility: Section 741.2” (1995), 37 C.R. (4th) 381.
APPEAL from a judgment of the New Brunswick Court of
Appeal (1999), 209 N.B.R. (2d) 257, [1999] N.B.J. No. 84 (QL), affirming a
judgment of the Court of Queen’s Bench. Appeal dismissed.
Eric J. Doiron, for the
appellant.
Michel O. LeBlanc and Luc
J. Labonté, for the respondent.
David Finley, for the
intervener.
The judgment of the Court was delivered by
LeBel J. —
I. Introduction
1
On November 20, 1996, the appellant Thomas Zinck shot and killed his
19-year-old neighbour, Stéphane Caissie. He was charged with second degree
murder. He pleaded guilty to manslaughter. The trial judge sentenced him to a
12-year term of imprisonment and ordered that his parole eligibility be delayed
for six years under s. 743.6 of the Criminal Code, R.S.C. 1985, c.
C-46 . The appellant challenged this part of his sentence in the New Brunswick
Court of Appeal and now in this Court, where it is the sole issue remaining on
appeal. In his view, the order to delay parole eligibility was made without evidence
of the exceptional circumstances which would justify it, without sufficient
reasons being given by the trial judge, and after a hearing conducted in breach
of procedural fairness. None of these grounds has been established. For the
reasons which follow, I would dismiss this appeal.
II. Background
2
At the time of his trial, Zinck was 56 years old. He had a long history
of run-ins with the law. His extensive criminal record speaks for itself. It
goes back some 30 years. It includes a conviction for robbery, for which he
received a 10-year jail sentence, together with a string of thefts and other
property crimes. A number of alcohol and gun offences, as well as breaches of
parole or probation, are also listed in this record.
3
The victim was a neighbour of the accused. Based on the evidence, it
seems that they got along well. At the time, Zinck drank heavily. He was also
fond of firearms and kept a number of them in his house. Before the shooting,
three successive break-ins had occurred at the Caissie house. It appears that
Zinck took it on himself to watch for burglars. This plan led to Caissie’s
tragic death. On the day of the shooting, Zinck had been drinking heavily. It
seems that he thought he had noticed burglars. So he went to Caissie’s house,
where the victim was in bed. Zinck was carrying a loaded gun. He started
banging on the door. Stéphane Caissie went to the door to check what was going
on. He opened the door. The gun went off. Caissie was killed instantly.
4
Zinck was never able to explain what happened. As the trial judge
found, he was heavily intoxicated at the time of the shooting, he was
fascinated with guns especially when he was drunk, and he had said, shortly
after the shooting, that he had “got one” (a burglar). As mentioned above, he
was charged with murder, but agreed to plead guilty to the reduced and included
offence of manslaughter.
III. Judicial
History
A. New
Brunswick Court of Queen’s Bench
5
On November 17, 1997, following the guilty plea, Godin J. adjourned the
sentencing hearing to December 22. Zinck had legal representation throughout.
During the hearing, Crown counsel reviewed the circumstances of the crime and
the record of the accused. He asked the court to consider a 15-year term of
imprisonment as a fit punishment for the offence. Then, close to the end of
his submissions, the Crown prosecutor raised the issue of delayed parole and of
the application of s. 743.6 of the Code. He asked the trial judge to
consider applying this provision and delaying parole. His argument on the
issue was very brief. Counsel stated only that he was asking for delayed
parole because Zinck had violated parole before.
6
After a break of a few hours, defence counsel made representations on
behalf of his client. His argument addressed the issues pertaining to what
should be the appropriate punishment. Despite the application for delayed
parole made by the Crown, the lawyer who was then acting for the appellant
never mentioned the issue during his argument.
7
The trial judge rendered an oral judgment after the close of counsel’s
submissions. In his reasons, Godin J. reviewed the circumstances of the crime at length. He discussed the criminal record
of the accused and considered his character and problems, particularly his
drinking habits and inclination towards violence. He also observed that, from
his past record, the accused did not “appear to be a good candidate for
rehabilitation”. He then turned to a discussion of the principles, objectives
and factual considerations which govern sentencing. He stated that the crime
amounted to an unexplained act of totally gratuitous violence, committed in the
home of the victim. Given the poor prospects for rehabilitation, he stated
that the protection of the public appeared as the key factor that should inform
his decision in this case. He therefore decided to impose a term of 12 years
of incarceration.
8
The judge noted that the Crown had applied for delayed parole. He agreed
that the case was a proper one for the application of s. 743.6 . His specific
reasons on the question remained faithful to the virtue of conciseness:
In addition, having regards to Section 743.6 of the Criminal Code ,
I am satisfied, having regards to the circumstances of the commission of the
offence and the character and the circumstances of the offender, that the
expression of society’s denunciation of the offence requires an order that the
portion of the sentence that must be served before the offender may be released
on full parole is at least one-half of the sentence.
B. New Brunswick Court of Appeal (1999),
209 N.B.R. (2d) 257 (Larlee, Turnbull and Rice JJ.A.)
9
With new counsel, Zinck appealed both the 12-year jail sentence and the
delayed parole order. Although he was granted leave, his appeal was dismissed
in respect of both issues. The Court of Appeal was unanimous as to the jail
term itself. Writing for the court on that issue, Larlee J.A. found no error
in the judgment of the trial judge. Given the circumstances of the case and
the personality of the accused, the punishment fit the crime.
10
The Court of Appeal split on the appropriateness of the delayed parole
order. The appellant had submitted that the application of this provision
required evidence of special or exceptional circumstances, which had not been
established. For the majority, Larlee J.A. disagreed. In her reasons, she
held that the trial judge had correctly applied and evaluated the only relevant
criteria. These were denunciation of the crime and general and specific
deterrence. The criterion of special circumstances should not be read into the
statute.
11
Rice J.A. dissented. He stated that the order had been improperly
made. It required evidence by the Crown showing that the circumstances and
character of the accused were such that he would not be deterred within the
normal period of parole ineligibility. He referred in this respect to the
judgment of the Court of Appeal for Ontario in R. v. Goulet (1995), 97
C.C.C. (3d) 61. In his view, moreover, the reasons of the trial judge had
failed to explain why such a measure was required in the circumstances of the
case.
12
Zinck then applied for leave to appeal to this Court on the issue of
delayed parole. He was granted leave.
IV. Relevant
Legislative Provisions
13
Criminal Code, R.S.C 1985, c. C-46
743.1 (1) [Imprisonment for life or more
than two years] Except where otherwise provided, a person who is sentenced to
imprisonment for
(a) life,
(b) a term of two years or more, or
(c) two or more terms of less than two years each that are to
be served one after the other and that, in the aggregate, amount to two years
or more,
shall be sentenced to imprisonment in a penitentiary.
(2) [Subsequent term less than two years] Where a
person who is sentenced to imprisonment in a penitentiary is, before the
expiration of that sentence, sentenced to imprisonment for a term of less than
two years, the person shall serve that term in a penitentiary, but if the
previous sentence of imprisonment in a penitentiary is set aside, that person
shall serve that term in accordance with subsection (3).
743.6 (1) [Power of court to delay parole]
Notwithstanding subsection 120(1) of the Corrections and Conditional Release
Act , where an offender receives, on or after November 1, 1992, a sentence
of imprisonment of two years or more, including a sentence of imprisonment for
life imposed otherwise than as a minimum punishment, on conviction for an
offence set out in Schedule I or II to that Act that was prosecuted by way of
indictment, the court may, if satisfied, having regard to the circumstances of
the commission of the offence and the character and circumstances of the
offender, that the expression of society’s denunciation of the offence or the
objective of specific or general deterrence so requires, order that the portion
of the sentence that must be served before the offender may be released on full
parole is one half of the sentence or ten years, whichever is less.
(2) [Principles that are to guide the court] For
greater certainty, the paramount principles which are to guide the court under
this section are denunciation and specific or general deterrence, with
rehabilitation of the offender, in all cases, being subordinate to these
paramount principles.
Corrections
and Conditional Release Act, S.C. 1992, c. 20
120. (1) Subject to sections 747 and 761
of the Criminal Code and to any order made under section 741.2 of that
Act, an offender is not eligible for full parole until the day on which the
offender has served a period of ineligibility of the lesser of one third of the
sentence and seven years.
(2) Subject to any order made under section 741.2
of the Criminal Code , an offender who is serving a life sentence,
imposed otherwise than as a minimum punishment, is not eligible for full parole
until the day on which the offender has served a period of ineligibility of
seven years less any time spent in custody between the day on which the
offender was arrested and taken into custody, in respect of the offence for
which the sentence was imposed, and the day on which the sentence was imposed.
128. (1) An offender who is released on
parole, statutory release or unescorted temporary absence continues, while entitled
to be at large, to serve the sentence until its expiration according to law.
(2) Except to the extent required by the
conditions of any day parole, an offender who is released on parole, statutory
release or unescorted temporary absence is entitled, subject to this Part, to
remain at large in accordance with the conditions of the parole, statutory
release or unescorted temporary absence and is not liable to be returned to
custody by reason of the sentence unless the parole, statutory release or unescorted
temporary absence is suspended, cancelled, terminated or revoked.
V. Analysis
A. The
Issue
14
This appeal is concerned solely with the question of delayed parole
under s. 743.6 of the Criminal Code (formerly s. 741.2 ). The fitness of
the 12-year jail term was not questioned in our Court. No issues of inadequate
representation by trial counsel in connection with the Crown’s application for
delayed parole eligibility were raised in the Court of Appeal or in our Court.
15
The appeal raises closely connected procedural and substantive issues.
First, Zinck challenges the procedural fairness of the process which led to the
order delaying his eligibility for parole. He submits that the prosecution
should give notice in advance of its intention to apply for delayed parole, in
order to allow the accused to respond effectively to such an application.
Following both parties’ submissions, the reasons of the trial judge should
address the issue with clarity and precision. Second, the appellant raises the
argument that a proper interpretation of s. 743.6 requires that it be
applied only in limited cases, upon evidence of extraordinary or exceptional
circumstances.
16
The respondent, supported by the intervener, the Attorney General of
Ontario, advances a more flexible application of delayed parole. In their
opinion, the law does not require prior notice, written or otherwise. Evidence
of exceptional circumstances is not required, although the respondent
acknowledges that this kind of order represents an exception to normal
sentencing practices and should be treated as such. Delayed parole eligibility
may be justified if the Crown merely satisfies the judge that the order is
necessary in order to express society’s denunciation of the offence or to meet
societal objectives of specific or general deterrence.
17
Before I move on to consider the interpretation of s. 743.6 and the
procedural fairness issues raised by this appeal, I must first turn to a
consideration of the position and nature of delayed parole within the general
scheme of the law of sentencing in Canada. It will put the issues raised by
the parties in their proper context.
B. The
Nature of Orders for Delayed Parole
18
The delayed parole scheme under s. 743.6 reflects a relatively recent
change in legislative policy on sentencing. It is true that a related
provision, which is now found in s. 745.4, had provided for a number of years
that a sentencing judge must fix the period of parole ineligibility of an
accused convicted of second degree murder. This exception aside, the
principles of sentencing drew a clear distinction between the functions of
courts, which determined the proper punishment for an offence, and the role of
agencies which ran the jails and oversaw the execution of sentences.
Eligibility for parole fell within the mandate of the National Parole Board.
Considerations relating to parole eligibility normally remained irrelevant to
the determination of the fitness of the sentence: R. v. M. (C.A.),
[1996] 1 S.C.R. 500, at para. 62, per Lamer C.J. While some courts may
have increased the length of a jail term to manipulate the term of parole
ineligibility, such a practice is quite improper. (See H. Dumont, Pénologie:
Le droit canadien relatif aux peines et aux sentences (1993), at p. 151;
see also A. Manson, “Judges and Parole Eligibility: Section 741.2 ” (1995), 37
C.R. (4th) 381.)
19
Determining the date and conditions of parole eligibility is usually the
prerogative of an administrative body, the Parole Board, in the discharge of
its supervisory functions over the execution of sentences. Over time, however,
the focus of legislation has shifted. The Corrections and Conditional
Release Act (the “Act ”) now puts more emphasis than before on the
protection of the public and less on pure rehabilitation objectives and
concerns. (See, for example, ss. 4 , 102 and 126 of the Act ; also, Dumont,
supra, at p. 299.) Nevertheless, the decision-making process under
the Act remains much different from the judicial determination of a fit
sentence. It is largely based on the ongoing observation and assessment of the
personality and behaviour of the offender during his or her incarceration,
which focuses on dangerousness and the offender’s ability to re-enter the
community (Dumont, supra, at p. 333). Such a process may extend over
several years and lead to decisions that are highly attentive to context and
based, at least in part, on what actually happened during the incarceration of
the offender.
20
At the end of this process of observation and review, full parole may be
granted. The granting of full parole does not amount to a reduction of the
jail sentence. The offender is still serving his or her sentence until the end
of the term. Our Court has defined such a decision as an alteration of the
conditions under which the sentence is being served (Cunningham v. Canada,
[1993] 2 S.C.R. 143, at pp. 150-51, per McLachlin J. (as she then was); M.
(C.A.), supra, at para. 61). At the same time, under s. 128 of the
Act , the offender on full parole is entitled to remain at large and is not
obliged to live within the four walls of the correctional institution.
Although the sentence is not over and measures of supervision remain in place,
full parole grants an offender a very substantial degree of personal freedom.
As mentioned above, this process generally used to fall outside the functions
of the sentencing courts, which did not have to concern themselves about parole
eligibility, its conditions and its supervision.
21
In respect of second degree murder, s. 745.4 created a first exception
to this principle when it brought initial access to parole within the province
of the sentencing judge (R. v. Shropshire, [1995] 4 S.C.R. 227). This
power was granted in the case of one class of crimes, where delaying parole
beyond the statutory minimum of 10 years had become the sole discretion the
judge could exercise at the time of sentencing.
22
The adoption of s. 743.6 altered more significantly the nature and
scope of sentencing decisions in Canadian criminal law. Section 743.6 applies
to a wide spectrum of offences. Some of them carry minimum sentences. In many
cases, punishment may range from conditional discharge to life imprisonment.
The sentencing judge already had to exercise a broad discretion in determining
the appropriate punishment for the specific crime committed by a particular
offender. Now, whenever s. 743.6 applies, judges may have to factor in parole
ineligibility as an additional variable.
23
It is now well established that the power to delay parole eligibility is
part of the sentencing process. Deferred access to parole has now become a
part of the punishment, in the case of criminal offences falling within the
scope of s. 743.6 . Indeed, as this Court held in R. v. Chaisson, [1995]
2 S.C.R. 1118, at para. 11 (per La Forest J.): “The inclusion of s.
741.2 of the Code should ... be understood to indicate an intention on
the part of Parliament explicitly to allow a trial judge to reduce the
discretion of the Parole Board in certain circumstances, by requiring an
accused to serve one half of his or her term of imprisonment before being able
to seek parole. The point is that under s. 741.2 the determination of
conditional release eligibility has now become a factor in sentencing,
and not simply a matter exclusively in the hands of the Parole Board” (emphasis
in original); see also Goulet, supra, at p. 65, per
Griffiths J.A.
24
Delaying parole can be a significant component of a sentence. It may
almost entirely extinguish any hope of early freedom from the confines of a
penal institution with its attendant rights or advantages. In this manner, it
brings a new element of truth, but also of harshness, to sentencing. The time
served in a penitentiary will be closer to the sentence imposed, although,
under the Act , the sentence is not over. Given its potential impact, it would
have been preferable to be clear about when and why this new sentencing tool is
to be used. Regrettably, the drafting of s. 743.6 left many substantive and
procedural questions unanswered. As Fish J.A. of the Quebec Court of Appeal
pointed out in one of the earliest cases on the interpretation of this
provision, which was decided, like the Goulet case, before the enactment
of s. 743.6(2) , its conceptual basis remains “elusive”. It concerns offences
in respect of which the sentencing judge must first apply the normal principles
of sentencing to the facts in order to determine a fit punishment for the
crime. Then, the court must use the same principles all over again, in respect
of the same facts — although now with a priority to deterrence and denunciation
pursuant to s. 743.6(2) — in order to decide whether parole should be delayed (R.
v. Dankyi (1993), 86 C.C.C. (3d) 368, at p. 376). The nature of the
analytical process required in order to apply this provision remains far from
clear. This degree of uncertainty goes a long way towards explaining the
problems courts have encountered in their search for a workable and consistent
interpretation of s. 743.6 , as well as the development of apparently
conflicting jurisprudential currents in provincial appellate courts. It
remains to be seen whether this conflict amounts to more than a question of
semantics, given that Canadian courts have tried to ascertain what the
provision really means and how it should work. I will now turn to this
problem.
C. The
Interpretation of Section 743.6
25
This case was described in our Court and in the Court of Appeal as
reflecting a clash between narrow and broad interpretations of the power to
order delayed parole. One thread in the jurisprudence emphasizes the
exceptional nature of the provision and seems to call for a restricted
application of this new judicial power. In these judgments, courts have held
that delayed parole should be justified by evidence of exceptional
circumstances, which would need to be precisely identified and demonstrated in
the reasons of the sentencing judge. By contrast, a number of judgments
advocate a broader approach to the application of delayed parole, requiring no
evidence of exceptional circumstances. On this view, the judge would simply
have to find on the evidence whether this additional form of punishment would
be appropriate, in the circumstances of each particular case, and considering
all the relevant factors, especially deterrence and denunciation.
26
Many judgments have referred in some way to delayed parole as an
exceptional measure. Until now, our Court has had no opportunity to consider
this issue, which was not raised in Chaisson. In Shropshire, we
reviewed the criteria and procedures governing delayed parole eligibility, but
only in the context of a second degree murder, under what is now s. 745.4. Our
Court held in that case that the prosecution need not demonstrate unusual
circumstances, and that the law did not require that the power to delay parole
be used sparingly (Shropshire, at para. 31, per Iacobucci J.).
As mentioned above, the provision at issue in Shropshire applied to a
particular crime. The problems of the exercise of judicial discretion, the
interplay of the sentencing factors, and their respective importance, arise in
a different manner under s. 743.6 . A method of interpretation and application,
coordinating the application of this provision with the classical principles of
sentencing and defining its sphere of application, remains to be developed.
27
The theme of the exceptional character of the measure has been much
stressed in an important strand of Canadian appellate jurisprudence. Many
judgments express the view that the order to delay parole should be considered
an exceptional one. For example, soon after the predecessor to s. 743.6 came
into force, comments to this effect were made by Fish J.A. of the Quebec Court
of Appeal in Dankyi, supra, at p. 376, and by Griffiths J.A. of
the Ontario Court of Appeal in Goulet, supra, at p. 65. Their
views had a significant influence on later judgments which repeatedly took up
the same theme of the exceptional nature of the provision. I did so myself,
while on the Quebec Court of Appeal in Boulanger v. La Reine, [1995]
R.J.Q. 1975, at p. 1978, where I characterized it as [translation] “an exceptional measure”.
(See also R. v. Ferguson (1995), 64 B.C.A.C. 211; R. v. Smith
(1995), 37 C.R. (4th) 360 (Ont. Ct. (Gen. Div.)); R. v. Osborne (1996),
110 C.C.C. (3d) 161 (Ont. C.A.); R. v. Nash-Levy (1998), 207 N.B.R. (2d)
45 (C.A.); R. v. Traverse (1998), 126 C.C.C. (3d) 462 (Man.
C.A.); R. v. Demedeiros, [1999] O.J. No. 1523 (QL) (C.A.).)
28
Other appellate decisions adopted what appears to be a significantly
different and broader approach to the interpretation and application of s. 743.6 .
According to these decisions, a sentencing judge does not have to look for
unusual circumstances before ordering delayed parole. The judge has been
granted discretionary power to be used in the appropriate circumstances, where
consideration of the relevant sentencing factors justifies its exercise. The
Alberta Court of Appeal summarized the gist of this jurisprudential approach in
the following manner:
This court has previously had occasion to consider the scope of s.
743.6 in R. v. Matwiy . . . (1996), . . . 105 C.C.C. (3d) 251 (C.A.).
This court did not impose on trial judges a requirement that they satisfy
themselves that the circumstances were “extraordinary” or “unusual” or
“particularly aggravating” so as to permit such an order to be made. The point
made by Mr. Justice Iacobucci in R. v. Shropshire, supra, with
respect to what is now s. 745.4 applies with equal force to this section. There
is nothing in s. 743.6 which indicates that it is a condition precedent to its
exercise that either the circumstances of the offence or the offender be in
this “unusual” category, let alone so unusual, in order for a trial judge to
impose an order under this section. To judicially impose such a threshold
requirement would fetter and undermine the general discretion which Parliament
has given to trial judges. What the section does require, and this was
confirmed by this court in Matwiy, is that the trial judge be convinced
that denunciation or specific or general deterrence will not be properly met
without a s. 743.6 order, taking into account all relevant circumstances.
[Emphasis omitted.]
(R. v. Hanley (1998), 228 A.R. 291 (C.A.), at para. 18; see also
R. v. Matwiy (1996), 105 C.C.C.
(3d) 251 (Alta. C.A.); R. v. Williston (1999), 209 N.B.R. (2d)
270 (C.A.); R. v. Cormier (1999), 140 C.C.C. (3d) 87 (N.B.C.A.); R.
v. Dodd (1999), 139 C.C.C. (3d) 2 (Nfld. C.A.).)
VI. The Function of Section 743.6
29
The extent of this jurisprudential conflict has been overplayed. It
does not reflect a basic disagreement between courts in Canada as to the nature
of this provision and its place in the sentencing process. On the contrary,
both views address the same difficulty and adopt ultimately consistent
solutions to the integration of delayed parole into the process of sentencing.
Under both approaches, the same method must be used. That method accepts that
delayed parole is a decision that remains out of the ordinary and must be used
in a manner that is fair to the offender. Both jurisprudential approaches to
the application of s. 743.6 appear to require that the sentencing judge use a
two-step intellectual process when deciding whether to delay parole. The
addition of this section has not abolished the first duty of the sentencing
judge. He or she must first determine what would be the appropriate punishment
for the crime. The issue of parole eligibility is not considered at this
stage. Courts consider all relevant factors and weigh them, in the
circumstances of the case and taking into account the character of the
offender. On the basis of this analysis, the judge determines the duration of
the jail sentence, if imprisonment is required by law or appears necessary.
30
At this point, the analysis may shift to the exercise of the power to
delay parole. The position of s. 743.6 in the Criminal Code signals
that it should not be applied in a routine manner. The power should not be
exercised in a mechanical or automatic way, nor invoked in connection with
every jail term imposed for an offence covered by s. 743.6 . The judge must
once again apply the sentencing factors. In this part of the process, however,
the addition of s. 743.6(2) requires that, in the course of this second
balancing, priority be given to the factors of general and specific deterrence,
and of denunciation. The other factors remain relevant, but, to the extent of
any conflict, subordinated to those identified by Parliament. It is worth
noting that Parliament has not given priority to these specific factors in the
application of s. 745.4 .
31
At this stage, having given priority to the factors of deterrence and
denunciation as required by law, and having duly considered all the criteria
and principles relevant to sentencing, based on the evidence at the sentencing
hearing and at trial, the court must arrive at its conclusion as to whether
this additional punishment is required. The prosecution has the burden of
demonstrating that it is. The judge must satisfy himself or herself that the
order is needed to reflect the objectives of sentencing, with awareness of the
special weight ascribed by Parliament to the social imperatives of denunciation
and deterrence. Nevertheless, at the end of this intellectual process, the
sentencing decision must remain alive to the nature and position of delayed
parole in criminal law as a special, additional form of punishment. Hence it
should not be ordered without necessity, in a routine way. This idea is
acknowledged by Griffiths J.A. of the Ontario Court of Appeal in Goulet
(p. 65). It is this aspect of s. 743.6 that explains the development of the
jurisprudential current emphasizing its exceptional nature. The other stream
of jurisprudence, which shies away from using the vocabulary of an “exceptional
measure”, does not seem, in practice, to have applied s. 743.6 in a different
manner. None of these judgments has suggested that a delayed parole order
should be considered an ordinary measure, to be applied in the normal course;
they agree that it should be invoked only on the basis of demonstrated need.
32
The application of s. 743.6 will probably never be an easy task for
judges. Sentencing remains a heavy responsibility for trial and appellate
judges throughout Canada. The exercise of the power to delay parole adds to
the difficulties of this task. With a proper understanding of the nature of
the measure, it is to be hoped that its application will be less problematic.
33
As mentioned above, courts must perform a double weighing exercise.
First, they must evaluate the facts of the case, in light of the factors set
out in s. 718 of the Code, in order to impose an appropriate sentence.
Then, they must review the same facts primarily in the perspective of the
requirements of deterrence and denunciation, which are given priority at this
stage, under s. 743.6(2). The decision to delay parole remains out of the
ordinary, but may and should be taken if, after the proper weighing of all
factors, it appears to be required in order to impose a form of punishment
which is completely appropriate in the circumstances of the case. This
decision may be made, for example, if, after due consideration of all the
relevant facts, principles and factors at the first stage, it appears at the
second stage that the length of the jail term would not satisfy the imperatives
of denunciation and deterrence. This two-stage process, however, does not
require a special and distinct hearing. It should be viewed as one sentencing
process, where issues of procedural fairness will have to be carefully considered.
VII. Procedural
Issues and Fairness
34
Acknowledging that delayed parole should not be a routine part of every
sentencing decision under s. 743.6 does not imply that there should be a
special and distinct hearing on the issue, where evidence of unusual or
extraordinary circumstances must be introduced. Section 743.6 does not
require the creation of such an additional procedure. A two-step intellectual
process does not turn the sentencing hearing into two separate procedures. It
should be enough that the issue be raised in a fair and timely manner so as to
allow the offender to respond effectively. A breach of this basic obligation
would justify quashing the order, as courts have done on occasion. (See Corneau
v. La Reine, [2001] R.J.Q. 2509 (C.A.), at p. 2515.) Beyond this, the
sentencing hearing should not be overburdened with formalistic and unnecessary
procedural requirements.
35
The need for fairness does not impose any obligation to give written
notice to the offender before the hearing that delayed parole will be applied
for. Such an obligation would often be impractical, especially since
sentencing hearings frequently take place immediately after the conviction or
guilty plea. In addition, the Criminal Code does not expressly require
written notice any more than did s. 745.4 , which was considered in Shropshire,
supra.
36
The obligation to assure fairness in the process is of critical
importance, but it may be discharged in different and equally valid ways. When
possible, the Crown may give notice in writing or verbally before the hearing.
The application may be made at the sentencing hearing itself. The issue may
also be raised by the judge in the course of the hearing. Whenever and however
the question is brought up, the offender must be informed clearly that he is at
risk in this respect. The offender must be allowed to make submissions and to
introduce additional evidence, if needed, in response to the request for
delayed parole. Courts should be generous if adjournments are requested for
this purpose. Fairness must be preserved, but in a flexible manner, taking into
account the specifics of each case, without pointless procedural constraints.
37
At the end of the process, the offender is entitled to reasons. The
judgment must state with sufficient clarity the reasons why the delayed parole
order is made. It must remain consistent with the principles set out in R.
v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26. The reasons
need not be elaborate. The basis of the decision must be at least
ascertainable from the record; precision and clarity remain advisable in the drafting
of such judgments. Deficiencies in reasons may sometimes require quashing an
order for the sake of the perceived fairness and the transparency of the
criminal process.
VIII. Application
of Principles
38
A review of the judgment and proceedings in this case confirms that none
of the grounds of appeal have been established. The trial judge did not err in
his application of s. 743.6 . The order was justified on the basis of the
record and was made after a hearing that did not breach the rules of procedural
fairness.
39
I concede that the part of the reasons dealing expressly with the issue
of delayed parole is somewhat imprecise. A more detailed analysis should have
been attempted. The reasons, though, must be viewed as a whole and read in
connection with the evidence and the submissions made at the hearing. Although
not extensive, the reasons permit an appellate court to ascertain and review
the basis of the order made by the trial judge. Thus, they do not breach the Sheppard
standard. Godin J. carefully reviewed all relevant facts, particularly the
gratuitousness of the crime and the need to protect the public. They confirm
his conclusion that the objectives of deterrence and denunciation could not be
satisfied without delaying parole eligibility.
40
Procedural fairness was observed. In its submissions, the Crown asked
for delayed parole. The accused, through his counsel, could have made his own
submissions or presented evidence to oppose the Crown’s request. He could have
requested an adjournment, if the Crown’s move took him by surprise. None of
this was attempted. It was never suggested that this was a case of inadequate
representation. The accused was given a sufficient opportunity to respond to
the Crown’s request. He failed to use it. He cannot fault the judge for this.
41
The Court of Appeal took the appropriate approach to the review of a
sentencing decision. In the absence of an error of principle, a breach of the
principles of procedural fairness or a clearly erroneous and material finding
of fact, it decided that it should not intervene. Its decision was well
founded. It can be upheld under both the narrow and the broad interpretations
of s. 743.6 , which can be reconciled, as indicated above.
IX. Disposition
42
For these reasons, I would dismiss the appeal.
Appeal dismissed.
Solicitor for the appellant: Eric J. Doiron, Moncton.
Solicitor for the respondent: Attorney General of New
Brunswick, Moncton.
Solicitor for the intervener: Attorney General of
Ontario, Toronto.