Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Criminal law ‑‑ Sentencing ‑‑ Period of parole ineligibility ‑‑ Accused pleading guilty to second degree murder ‑‑ Trial judge sentencing accused to life imprisonment without parole eligibility for 12 years ‑‑ Court of Appeal reducing period of parole ineligibility to statutory 10‑year minimum ‑‑ Whether trial judge's order should be restored ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 744 .
Criminal law -- Powers of court of appeal ‑‑ Appeals against sentence ‑‑ Accused pleading guilty to second degree murder ‑‑ Trial judge sentencing accused to life imprisonment without parole eligibility for 12 years ‑‑ Court of Appeal reducing period of parole ineligibility to statutory 10‑year minimum ‑‑ Whether Court of Appeal erred in standard of appellate review it applied ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 687(1) .
The accused pleaded guilty to second degree murder. The offence was committed at his home during a marijuana transaction. Without any warning, the accused shot the deceased three times in the chest as they were about to enter the garage to complete the deal. Two days later, the accused gave himself up to the police. He professed remorse for his actions but was unwilling or unable to explain them. No motive for the killing was ever ascertained. The accused has a prior criminal record including two convictions in Youth Court for robbery, a conviction for impaired driving, and two narcotic offences as an adult. Section 742 (b) of the Criminal Code specifies a sentence of life imprisonment with a period of parole ineligibility of between 10 and 25 years for a person convicted of second degree murder. By virtue of their discretionary power under s. 744, trial judges may extend the period of parole ineligibility beyond the 10‑year minimum. The accused was sentenced to life imprisonment without eligibility for parole for 12 years. The Court of Appeal, in a majority decision, allowed his appeal against sentence, and reduced the period of parole ineligibility to 10 years.
Held: The appeal should be allowed and the trial judge's order restored.
The factors to be considered in fixing an extended period of parole ineligibility under s. 744 are (1) the character of the offender, (2) the nature of the offence, and (3) the circumstances surrounding the commission of the offence, all bearing in mind the discretionary power conferred on the trial judge. While an assessment of future dangerousness and denunciation are of relevance in justifying a s. 744 order, deterrence is also a relevant criterion. The conclusion, by the majority of the Court of Appeal, that a period of parole ineligibility in excess of 10 years will not be justified unless there are "unusual circumstances" is too high a standard and makes it overly difficult for trial judges to exercise their discretionary power. A more appropriate standard is that as a general rule, the period of parole ineligibility should be for 10 years, but this can be ousted by a determination of the trial judge that, according to the criteria enumerated in s. 744, the offender should wait a longer period before having his suitability to be released into the general public assessed. To this end, an extension of the period of parole ineligibility would not be "unusual", although in the median number of cases, a period of 10 years might still be awarded. This standard is supported by a review of the legislative history, academic commentary and judicial interpretation of s. 744 and the sentencing scheme for second degree murder. Permitting trial judges to extend the period of parole ineligibility does not usurp or impinge upon the function of the parole board.
The trial judge made no error in this case. He adverted to the fact that the accused had pleaded guilty and was only 23 years old, and referred to the following factors as specifically justifying the 12‑year period of parole ineligibility he was imposing: (a) the circumstances of the killing were strange in that they provided no real answer to why it took place, and the accused was unwilling or unable to explain his actions; (b) the murder was committed during the course of committing another offence, namely a drug transaction; and (c) the accused has a record for both narcotic offences and violence. Factors (b) and (c) clearly fall within the categories established by s. 744. While factor (a) presents some difficulty, the silence referred to is readily assimilable within the "circumstances surrounding the offence" criterion. In the absence of any explanation for a random and seemingly senseless killing, the trial judge was correct in sentencing the accused as he did in light of the accused's refusal to offer an explanation. The right to silence, which is fully operative in the investigative and prosecutorial stages of the criminal process, wanes in importance in the post‑conviction phase when sentencing is at issue. It should be emphasized, however, that the accused pleaded guilty; the question of drawing a negative inference from the accused's silence when he or she has pleaded not guilty and wishes to appeal the conviction should be left for future consideration.
The Court of Appeal erred in suggesting that an appellate court should reduce the period of parole ineligibility imposed by the trial judge unless the trial judge has given specific reasons which, in the opinion of the appeal court, justify the increased period. This very broad standard of review is inappropriate. Orders made under s. 744 are part of the "sentence" and are thus to be appealed pursuant to s. 687(1), which provides for consideration of the "fitness" of the sentence. An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. A variation in the sentence should only be made if the court of appeal is convinced it is not fit, that is, if it has found the sentence to be clearly unreasonable. In this case the sentencing order did not fall outside the acceptable range of orders.
Cases Cited
Disapproved: R. v. Hogben (1994), 40 B.C.A.C. 257; approved: R. v. Doyle (1991), 108 N.S.R. (2d) 1, leave to appeal refused, [1992] 2 S.C.R. vi; R. v. Pepin (1990), 98 N.S.R. (2d) 238; R. v. Muise (1994), 94 C.C.C. (3d) 119; not followed: R. v. Brown (1993), 83 C.C.C. (3d) 394; R. v. Walford (1984), 12 C.C.C. (3d) 257; referred to: R. v. Wenarchuk (1982), 67 C.C.C. (2d) 169; R. v. Mitchell (1987), 39 C.C.C. (3d) 141; R. v. Young (1993), 78 C.C.C. (3d) 538; R. v. Able (1993), 65 O.A.C. 37; R. v. Ly (1992), 72 C.C.C. (3d) 57; R. v. Arkell, [1990] 2 S.C.R. 695; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Luxton, [1990] 2 S.C.R. 711; R. v. Swietlinski, [1994] 3 S.C.R. 481; R. v. Gourgon (1981), 58 C.C.C. (2d) 193; R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Broyles, [1991] 3 S.C.R. 595; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Chambers, [1990] 2 S.C.R. 1293; R. v. Émond, J.E. 90‑557; R. v. Chaisson, [1995] 2 S.C.R. 1118; R. v. Smith, [1990] 1 S.C.R. 991; R. v. Burns, [1994] 1 S.C.R. 656.
Statutes and Regulations Cited
Corrections and Conditional Release Act , S.C. 1992, c. 20 , ss. 101 , 102 .
Criminal Code , R.S.C., 1985, c. C‑46 , ss. 673 , 687(1) , 742 (b), 743 , 744 [rep. & sub. 1992, c. 11, s. 16], 744.1 [ad. idem], 745.
APPEAL from a judgment of the British Columbia Court of Appeal (1994), 90 C.C.C. (3d) 234, 45 B.C.A.C. 252, 72 W.A.C. 252, allowing the accused's appeal against sentence and reducing the period of parole ineligibility to 10 years. Appeal allowed.
William F. Ehrcke, for the appellant.
Anthony H. Zipp, for the respondent.
The judgment of the Court was delivered by
I. Iacobucci J. -- This appeal was allowed on June 15, 1995, with reasons to follow. These are those reasons.
II. At issue in this appeal are the factors and principles that should guide a trial judge in determining whether to extend the period of parole ineligibility on a second degree murder conviction beyond the statutory minimum of 10 years. This appeal also touches on the appropriate standard of appellate review to be exercised when considering a trial judge's decision to postpone the period of parole eligibility. Both of these issues engage the broad theme of when the discretion of a sentencing judge ought to be altered.
I. Background
III. The respondent, Michael Thomas Shropshire, pleaded guilty to the second degree murder of Timothy Buffam. The offence was committed at the respondent's home in Abbotsford, British Columbia, on May 26, 1992, during a marijuana transaction between the respondent, the deceased, and Lorne Lang, a third person accompanying the deceased. Lang is otherwise known as "Animal". The respondent was acquainted with Buffam and Lang as the trio had had prior narcotics dealings. Without any warning, the respondent shot Buffam three times in the chest as they were about to enter the garage to complete the marijuana deal. The respondent then chased Lang in his vehicle shouting "Hacksaw told me to do it!". Hacksaw is the nickname of another associate.
IV. Two days later, the respondent gave himself up to the police. After a preliminary hearing, the respondent pleaded guilty to second degree murder. He professed remorse for his actions but was unwilling or unable to explain them. No motive for the killing was ever ascertained. The respondent has a prior criminal record including two convictions in Youth Court for robbery, a conviction for impaired driving, and two narcotic offences as an adult.
V. On June 17, 1993, McKinnon J. of the Supreme Court of British Columbia sentenced the respondent to life imprisonment without eligibility for parole for 12 years. This period of non-eligibility for parole is two years more than the minimum (and most common) period of parole ineligibility for second degree murder, namely 10 years. Trial judges are permitted, by virtue of the discretionary power accorded to them by s. 744 of the Criminal Code , R.S.C., 1985, c. C-46 , to extend the period of parole ineligibility beyond the statutory minimum. The respondent challenged the discretionary s. 744 decision of the trial judge.
VI. On May 4, 1994, a majority of the Court of Appeal for British Columbia allowed the respondent's appeal against sentence, and reduced the period of parole ineligibility to 10 years: (1994) 90 C.C.C. (3d) 234, 45 B.C.A.C. 252, 72 W.A.C. 252. Goldie J.A. dissented and would have dismissed the appeal.
II. Relevant Statutory Provisions
Criminal Code , R.S.C., 1985, c. C-46
744. Subject to section 744.1, at the time of the sentencing under paragraph 742(b) of an offender who is convicted of second degree murder, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, if any, made pursuant to section 743, by order, substitute for ten years a number of years of imprisonment (being more than ten but not more than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances.
VII. Section 744.1 applies to offenders under the age of 18. Section 742(b) specifies a sentence of life imprisonment with a period of parole ineligibility of at least 10 years and not more than 25 years for a person convicted of second degree murder. Section 743 relates to a recommendation by a jury as to minimum parole ineligibility.
III. Judgments Below
A. Supreme Court of British Columbia
VIII. McKinnon J. stated that it was the duty of a trial judge "to consider the appropriate sentence having regard to the character of the offender, the nature of the offence, and the circumstances surrounding its commission". He then concluded.
The accused pleaded guilty to second degree murder and I have imposed the mandatory sentence of life imprisonment. It remains to determine the period he must serve before eligibility for parole.
I have the joint submission of Crown and defence that it should be the minimum prescribed, namely ten years. Notwithstanding that submission it is the duty of the trial judge to consider the appropriate sentence having regard to the character of the offender, the nature of the offence, and the circumstances surrounding its commission.
This offence was committed during a marijuana transaction between three people who had prior similar dealings and who were certainly known to one another. The accused was selling a quantity of marijuana to one Lang. The deceased, Buffam, was along as both driver and co‑purchaser but appears to have been a minor player insofar as this transaction was concerned. It was set up between Shropshire and Lang.
There is some indication that Shropshire anticipated trouble with Lang as he owed him $1,400, but the evidence is equivocal as Lang claims they were warmly greeted by Shropshire when they arrived. In any event, according to Lang, nothing transpired while there to cause Mr. Shropshire to fire three bullets into Buffam. Mr. Shropshire professes remorse for his actions but seems unwilling to explain just why he killed Mr. Buffam.
Lang says that for reasons completely foreign to him, Shropshire fired three shots into Buffam as they were all about to enter the garage to complete the marijuana deal. Shropshire then chased Lang with his vehicle, and depending upon whose version you accept it was either to get him to come back to the house and phone the police or to kill him as well. Independent witnesses noted the car chase but only Lang could say that Shropshire attempted to shoot him in this chase. Various shouts by Shropshire to Lang about "Hacksaw told me to do it" were made. Hacksaw is apparently the nickname of another associate. It is all very strange, made even stranger by Mr. Shropshire's unwillingness or inability to explain his actions.
Mr. Shropshire is only twenty‑three years old but has a criminal record for both narcotic offences and offences of violence. He has the support of both his parents and his wife with whom he has two children. He appears to have been involved in the criminal element for most of his young years, and while I would not want to unduly affect what must be a life that is still very much capable of reformation, given the factors which I must consider, balanced against the facts, I believe the period of ineligibility must be for twelve years. I so impose such period.
B.British Columbia Court of Appeal (1994), 90 C.C.C. (3d) 234
IX. The majority of the court allowed the appeal against sentence and reduced the period of parole ineligibility to 10 years.
(i) per Lambert J.A. (Cumming J.A. concurring)
X. Lambert J.A. found it hard to conceive that "the sentencing principles of general deterrence and specific deterrence should have any application in setting a period of ineligibility of parole of longer than 10 years" (p. 237). He stated that if someone was not deterred by the thought of a life sentence coupled with ineligibility for parole for a period of 10 years, then it was hard to conceive that extending the period of ineligibility for parole would have any deterrent effect on that person.
XI. Lambert J.A. found that the effect of an order imposing a period of parole ineligibility longer than 10 years was to prevent the parole board from exercising "the very function it is designed to perform" (p. 238). To this end, so as not to usurp the function of the parole board, such an order could only be issued in unusual circumstances. More specifically, the extended period of the parole ineligibility order could only be based upon two justifications. First, if "the judge forms the impression that the convicted person is dangerous if left at large and will continue to be dangerous after the passage of 10 years and that the evidence at trial is such that the judge considers that he has a clearer view of the danger of the person in question than the parole board will have in 10 years time, when the relevance of the question of danger becomes significant at all" (p. 238). Second, when denunciation is of the essence: "a conclusion that a sentence of life imprisonment coupled with parole ineligibility for a period of 10 years is an insufficient denunciation by society, having regard to the gravity of the offence" (p. 238).
XII. Lambert J.A. then concluded that neither of these reasons justified McKinnon J.'s decision to extend the period of parole ineligibility in this case. With respect to dangerousness, Lambert J.A. observed that McKinnon J. had failed to give sufficient reasons for forming his opinion. Regarding denunciation, Lambert J.A. held (at pp. 238-39):
. . . in imposing such a denunciatory sentence...the cost of keeping him in for extra years is in excess of $50,000 a year...and...in imposing extra years of parole ineligibility it must be concluded that the extra denunciation is worth more than $50,000 a year to society.
. . .
I cannot fit the reason given by the sentencing judge, namely, that there was no explanation given by the accused when he pleaded guilty about why he committed this murder, within the two categories which I have mentioned. I do not think that reason comes either in the first category of dangerousness, or within the second category of denunciation.
. . . . I think it is a relevant circumstance that both Crown counsel and defence counsel, in their submissions to the sentencing judge, submitted that a period of parole ineligibility of 10 years as required by the Code was the appropriate period.
I consider in this case that a period of parole ineligibility of 10 years meets the goals of Parliament in enacting these provisions. I do not think there was any unusual circumstance in this case...which would justify an increase.
(ii) per Goldie J.A. (dissenting)
XIII. Goldie J.A. held that the Criminal Code requires a trial judge to consider the circumstances surrounding the commission of the crime. Goldie J.A. stated that the effect of the respondent's refusal to disclose the circumstances surrounding the incident "blocks at the threshold a meaningful consideration of the reasons for his anti-social behaviour, that is to say, for an act the foreseeable consequence of which was death -- the very epitome of anti-social behaviour" (p. 241). He concluded therefore that the respondent's silence was of relevance in justifying the imposition of a longer period of parole ineligibility (at p. 241):
In my view, in the absence of any explanation, a virtually random, certainly irrational on the face of it, and senseless taking of a life should put this behaviour at the upper end, not the lower end of the offence of second degree murder. Furthermore, in the absence of an explanation it was entirely open to the sentencing judge to treat the earlier convictions of robbery and armed robbery, although committed six years before, as offences of violence. I take from that, he treated this offence as continuing evidence of a propensity. Indeed, there was nothing that would have allowed him to treat the killing here as the aberration of the moment.
In my view, the deliberate refusal to offer an explanation for the occurrence of such a serious offence is a circumstance in itself which should be treated as sufficiently unusual as to justify an increased period of ineligibility. Silence after the plea of guilty is not the same thing as silence before conviction.
XIV. Goldie J.A. added that the reason for protecting the right to remain silent disappeared with the plea of guilty. The respondent could not expect to be rewarded for remaining silent in the sentencing circumstances. Goldie J.A. then concluded that the trial judge did not err with respect to the enhanced period of parole ineligibility (at p. 242):
He [the trial judge] took cognizance of the factors he was bound to consider in the unusual circumstance that the [respondent] chose to create. He did not impose a period that suggested he was substituting first degree murder for what occurred. He took into account the character, lifestyle, and age of the accused so far as he could do so in the absence of any cooperation from the [respondent]. He considered the mitigating circumstances so far as he was informed of them. In my view, the added two year period was fit and I would have dismissed the appeal.
IV. Issues on Appeal
XV. I would state the issues in the following manner:
1.What are the appropriate factors for a sentencing judge to consider in determining whether a period of parole ineligibility of longer than 10 years should be awarded for an individual convicted of second degree murder?
2.Given the discretionary nature of an extended period of parole ineligibility order under s. 744 of the Criminal Code , what is the appropriate standard of appellate review of such an order?
V. Analysis
A.What are the appropriate factors for a sentencing judge to consider in determining whether a period of parole ineligibility of longer than 10 years should be awarded for an individual convicted of second degree murder?
XVI. The majority of the British Columbia Court of Appeal held that there are only two factors to consider in justifying an enhanced period of parole ineligibility: (1) an assessment of future dangerousness, and (2) denunciation. With respect, I disagree. Although these factors are of relevance in justifying an extension of the period of parole ineligibility, they are by no means determinative or exclusive.
XVII. Section 744 of the Criminal Code authorizes a trial judge to impose a period of parole ineligibility greater than the minimum 10-year period. This provision, which governs this appeal, reads as follows:
744. Subject to section 744.1, at the time of the sentencing under paragraph 742(b) of an offender who is convicted of second degree murder, the judge who presided at the trial of the offender . . . may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission . . . substitute for ten years a number of years of imprisonment (being more than ten but not more than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances. [Emphasis added.]
XVIII. The determination under s. 744 is thus a very fact-sensitive process. The factors to be considered in fixing an extended period of parole ineligibility are:
(1) the character of the offender;
(2) the nature of the offence; and
(3) the circumstances surrounding the commission of the offence;
all bearing in mind the discretionary power conferred on the trial judge.
XIX. No reference is made to denunciation or assessments of future dangerousness in the statutory language. By elevating "denunciation" and "assessment of future dangerousness" as the only criteria by which extended periods of parole ineligibility can be determined, the majority of the British Columbia Court of Appeal has, in effect, judicially amended the clear statutory language. This is not to say, however, that these two criteria should not be part of the analysis. For example, "denunciation" can fall within the statutory criterion of the "nature of the offence". Similarly, "future dangerousness" can fall within the rubric of the "character of the offender".
XX. On the issue of denunciation, Lambert J.A. stated that it would not provide a valid basis for ordering a longer period of parole ineligibility unless it is "concluded that the extra denunciation is worth more than $50,000 a year to society" (p. 239). I cannot accept that position. It is entirely inappropriate to require a trial judge to engage in such a cost/benefit budgetary analysis. As submitted by the appellant before this Court:
The question of how society allocates public resources is for Parliament to determine. By enacting s. 744, Parliament has determined that some of society's resources will be allocated to imprisoning convicted murderers beyond the ten year point. If Parliament determines that the fiscal cost of that incarceration is too high, then they can amend s. 744. It is not the task of individual judges carrying out the sentencing process to engage in that kind of budgetary analysis.
Furthermore, this sort of fiscal analysis would yield undesirable results from a policy perspective.
XXI. "Deterrence" is also a relevant criterion in justifying a s. 744 order. Parole eligibility informs the content of the "punishment" meted out to an offender: for example, there is a very significant difference between being behind bars and functioning within society while on conditional release. Consequently, I believe that lengthened periods of parole ineligibility could reasonably be expected to deter some persons from reoffending. Such is also the position of a variety of provincial appellate courts, from which the British Columbia Court of Appeal presently diverges: R. v. Wenarchuk (1982), 67 C.C.C. (2d) 169 (Sask. C.A.); R. v. Mitchell (1987), 39 C.C.C. (3d) 141 (N.S.C.A.); R. v. Young (1993), 78 C.C.C. (3d) 538 (N.S.C.A.); R. v. Able (1993), 65 O.A.C. 37 (C.A.); R. v. Ly (1992), 72 C.C.C. (3d) 57 (Man. C.A.), per Twaddle J.A. (Scott C.J.M. concurring), at p. 61: "Parliament's purpose in adding a minimum period of parole ineligibility to a life sentence was, in my view, twofold. It was to deter and denounce the crime".
XXII. More importantly, the British Columbia Court of Appeal's position is also irreconcilable with the view taken by this Court of the interplay between parole eligibility and deterrence. For example, in R. v. Arkell, [1990] 2 S.C.R. 695, at p. 704 it was stated:
. . . the distinction between first and second degree murder . . . is a maximum extra fifteen years that must be served before one is eligible for parole . . . . Parliament's decision to treat more seriously murders that have been committed while the offender is exploiting a position of power through illegal domination of the victim [i.e. first degree murder] accords with the principle that there must be a proportionality between a sentence and the moral blameworthiness of the offender and other considerations such as deterrence and societal condemnation of the acts of the offender. [Emphasis added.]
XXIII. The only difference in terms of punishment between first and second degree murder is the duration of parole ineligibility. This clearly indicates that parole ineligibility is part of the "punishment" and thereby forms an important element of sentencing policy. As such, it must be concerned with deterrence, whether general or specific. The jurisprudence of this Court is clear that deterrence is a well-established objective of sentencing policy. In R. v. Lyons, [1987] 2 S.C.R. 309, La Forest J. held at p. 329:
In a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender. No one would suggest that any of these functional considerations should be excluded from the legitimate purview of legislative or judicial decisions regarding sentencing.
Section 744 must be concerned with all of the factors cited in Lyons. In R. v. Luxton, [1990] 2 S.C.R. 711, the importance of structuring sentences to take into account the individual accused and the particular crime was emphasized. This is also a factor that any order made pursuant to s. 744 ought to take into consideration.
XXIV. The exercise of a trial judge's discretion under s. 744 should not be more strictly circumscribed than the sentencing itself. The section does not embody any limiting statutory language; rather it is quite the contrary. In its terms, it is very similar to s. 745, which permits an application to be made to reduce the parole ineligibility period after 15 years of incarceration. Section 745 has recently been given judicial scrutiny by this Court in R. v. Swietlinski, [1994] 3 S.C.R. 481. That case involved an assessment of the relevant considerations for a jury hearing a s. 745 application; Lamer C.J. concluded at p. 500:
It is true that deterrence is one of the functions of the penalty and that it is therefore legitimate for the jury to take this factor into account when hearing an application under s. 745.
There is no reason why the functions of s. 744 should be given a more restrictive interpretation than those of s. 745.
XXV. In any event, independent of the effect that parole ineligibility may empirically have on recidivism, Lambert J.A.'s reasoning, in both this case as well as in R. v. Hogben (1994), 40 B.C.A.C. 257, completely precludes the concept of "deterrence" from informing the decision of whether or not to extend the period of parole ineligibility. This in my view constitutes an unduly restrictive interpretation of s. 744 and erroneously contravenes the jurisprudence of this court as well as other appellate courts.
XXVI. I also find it necessary to deal with Lambert J.A.'s conclusion that a period of parole ineligibility in excess of 10 years will not be justified unless there are "unusual circumstances". This conclusion resonates in the earlier decisions of the British Columbia Court of Appeal in R. v. Brown (1993), 83 C.C.C. (3d) 394, and R. v. Gourgon (1981), 58 C.C.C. (2d) 193. In my opinion, this is too high a standard and makes it overly difficult for trial judges to exercise the discretionary power to set extended periods of parole ineligibility. The language of s. 744 does not require "unusual circumstances". As a result, to so require by judicial pronouncement runs contrary to Parliamentary intent.
XXVII. In my opinion, a more appropriate standard, which would better reflect the intentions of Parliament, can be stated in this manner: as a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by a determination of the trial judge that, according to the criteria enumerated in s. 744, the offender should wait a longer period before having his suitability to be released into the general public assessed. To this end, an extension of the period of parole ineligibility would not be "unusual", although it may well be that, in the median number of cases, a period of 10 years might still be awarded.
XXVIII. I am supported in this conclusion by a review of the legislative history, academic commentary, and judicial interpretation of s. 744, and the sentencing scheme for second degree murder.
XXIX. Section 742(b) of the Code provides that a person sentenced to life imprisonment for second degree murder shall not be eligible for parole "until he has served at least ten years of his sentence or such greater number of years, not being more than twenty-five years, as has been substituted therefor pursuant to section 744". In permitting a sliding scale of parole ineligibility, Parliament intended to recognize that, within the category of second degree murder, there will be a broad range of seriousness reflecting varying degrees of moral culpability. As a result, the period of parole ineligibility for second degree murder will run anywhere between a minimum of 10 years and a maximum of 25, the latter being equal to that prescribed for first degree murder. The mere fact that the median period gravitates towards the 10-year minimum does not, ipso facto, mean that any other period of time is "unusual".
XXX. I should pause to repeat that in the instant appeal we are concerned with a period of parole ineligibility for second degree murder of 12 years, this being only two years more than the minimum.
XXXI. If the objective of s. 744 is to give the trial judge an element of discretion in sentencing to reflect the fact that within second degree murder there is both a range of seriousness and varying degrees of moral culpability, then it is incorrect to start from the proposition that the sentence must be the statutory minimum unless there are unusual circumstances. As discussed supra, a preferable approach would be to view the 10-year period as a minimum contingent on what the "judge deems fit in the circumstances", the content of this "fitness" being informed by the criteria listed in s. 744. As held in other Canadian jurisdictions, the power to extend the period of parole ineligibility need not be sparingly used.
XXXII. For example, in R. v. Wenarchuk, supra, the Saskatchewan Court of Appeal (per Bayda C.J.S. for a five-judge panel) held at p. 173 that:
[It is no longer appropriate] that the `order (increasing the parole non-eligibility period) should be sparingly made'. The order should be made whenever such an order is `fit in the circumstances'. [Emphasis added.]
XXXIII. I would equally affirm the following passage from the decision of the Nova Scotia Court of Appeal in R. v. Doyle (1991), 108 N.S.R. (2d) 1, at p. 5, leave to appeal to this Court refused, [1992] 2 S.C.R. vi, which I find apposite to the present discussion:
The Code does not fix the sentence for second degree murder as life imprisonment with no parole eligibility for ten years. The discretion conferred on the sentencing judge by s. 742(b) and s. 744 is not whether to move from a prima facie period of ten years, but rather what is a fit sentence, applying the proper guidelines. Unusual circumstances are not the prerequisite for moving away from the ten year minimum, although as the cases illustrate, they certainly play a role in the proper exercise of the judicial discretion . . . .
It is not the law that unusual circumstances, brutality, torture or a bad record must be demonstrated before the judge may exercise his discretion to move above the ten years minimum. Nor is there any burden on the Crown to demonstrate that the period should be more than the minimum. [Emphasis added.]
XXXIV. On another note, I do not find that permitting trial judges to extend the period of parole ineligibility usurps or impinges upon the function of the parole board. I am cognizant of the fact that, upon the expiry of the period of parole ineligibility, there is no guarantee of release into the public. At that point, it is incumbent upon the parole board to assess the suitability of such release, and in so doing it is guided by the legislative objectives of the parole system: see ss. 101 and 102 of the Corrections and Conditional Release Act , S.C. 1992, c. 20 . However, it is clear that the parole board is not the only participant in the parole process. All it is designed to do is, within the parameters defined by the judiciary, decide whether an offender can be released. A key component of those parameters is the determination of when the period of parole eligibility (i.e. when the parole board can commence its administrative review function) starts to run. This is the manner in which the system is geared to function -- with complementary yet distinct input from both the judiciary and the parole administrators. It is the role of the sentencing judge to circumscribe, in certain statutorily defined circumstances, the operation of the parole board. The decision of McKinnon J. in the case at bar neither skews this balance nor unduly trumps the function of the parole board. As noted by the Saskatchewan Court of Appeal in Wenarchuk, supra, at pp. 172-73:
The object of the provision in s. 671 [now s. 744] is not to take away from the Parole Board, or in some way diminish, the Board's function to determine whether the accused is sufficiently rehabilitated (from the standpoint of risk to and the protection of society) to permit his release into society . . . . The object, rather, is to give back to the judge some of the discretion he normally has in the matter of sentencing -- discretion that the statute took away from him when it provided for a life sentence [for murder] -- so that the judge may do justice, not retributive or punitive justice, but justice to reflect the accused's culpability and to better express society's repudiation for the particular crime committed by the particular accused (with that repudiation's attendant beneficial consequences for society, including its protection through individual and general deterrence and, where necessary, segregation from society)....
. . .
An order under s. 671 does not impinge upon the powers of the Board. At most, it has the effect of postponing the Board's exercise of its powers -- its full powers. [Emphasis in original.]
XXXV.
Applying these legal principles to the particular facts of this case, I do not see any error on the part of the trial judge. He adverted to the fact that the respondent had pleaded guilty and was only 23 years old. He recognized that the Crown was not seeking a period of parole ineligibility beyond the minimum. Nevertheless, in a legitimate exercise of his discretionary power, and after correctly reviewing the factors set out in s. 744, he imposed a 12-year period of parole ineligibility. He referred to the following factors as specifically justifying the 12-year period of parole ineligibility:
(a)the circumstances of the killing were strange in that they provided no real answer to why it took place, and the respondent was unwilling or unable to explain his actions;
(b) the murder was committed during the course of committing another offence, namely a drug transaction; and
(c) the respondent has a record for both narcotic offences and violence.
XXXVI. Factors (b) and (c) clearly fall within the categories ("character", "nature" and "circumstances surrounding") established by s. 744. As to factor (b), I further note that the Manitoba Court of Appeal, in R. v. Ly, supra, held that the period of parole ineligibility could be increased when the murder is committed in the course of another crime, particularly a crime of violence.
XXXVII. Factor (a), however, presents some difficulty. The respondent raises the question whether the trial judge erred in interpreting the respondent's silence in such a manner as to justify extending the period of parole ineligibility.
XXXVIII. In response, I would affirm the analysis of Goldie J.A. in the court below (at pp. 241-42) and would hold that this silence is readily assimilable within the "circumstances surrounding the offence" criterion. The crux of Goldie J.A.'s comments is that, in the absence of any explanation for a random and seemingly senseless killing, the trial judge was correct in sentencing the respondent in light of his refusal to offer an explanation. It was found that his refusal was deliberate and in and of itself unusual. After all, the respondent, a drug dealer with previous convictions for robbery and armed robbery, shot the victim Buffam in cold blood without provocation of any kind.
XXXIX. It is not for the trial judge to speculate what the respondent might have said to mitigate the severity of the offence. I quite agree with Goldie J.A. that the right to silence, which is fully operative in the investigative and prosecutorial stages of the criminal process, wanes in importance in the post-conviction phase when sentencing is at issue. However, in so agreeing, I emphasize that the respondent pleaded guilty; I leave for future consideration the question of drawing a negative inference from the silence of the accused when he or she has pleaded not guilty and wishes to appeal the conviction. In the case at bar, the trial judge even went so far as to invite the accused to suggest why he may have committed the offence, but no response was forthcoming. As held by Goldie J.A. (at p. 242), the respondent "cannot expect to be rewarded for remaining silent in the circumstances". The court and the public clearly have an interest in knowing why a human life was taken by an offender.
XL. Goldie J.A.'s comments and the decision of the trial judge on the "silence" issue are fully consonant with the position taken by the Ontario Court of Appeal. In R. v. Able, supra, the Court of Appeal increased two co-accused's periods of parole ineligibility. At page 39 it was held:
No explanation has been forthcoming from either of the appellants with respect to the reason for the killing ... [which] can be best described as a callous, brutal, pointless, execution-style killing of a helpless victim.
I conclude that in certain circumstances, such as those presented in this case, it is proper to take into account the absence of an explanation of attenuating factors.
XLI. The respondent suggests that Goldie J.A.'s comments and the decision of the trial judge contravene the pronouncements of this Court in R. v. Gardiner, [1982] 2 S.C.R. 368. I recognize that, in Gardiner, this Court extended certain procedural rights to sentencing proceedings. However, these were limited to the right to counsel, the right to call evidence, the right to cross-examine and the right to address the court. There is no mention made of the creation in its identical form of a substantive right such as the right to silence.
XLII. At the sentencing stage, the Crown has already proved beyond a reasonable doubt that the accused has committed the crime for which he or she stood charged or, as in this appeal, the accused has pleaded guilty to the offence; if the accused then seeks to receive the least severe sentence commensurate with his or her conviction (i.e. for second degree murder, life imprisonment with eligibility for parole after 10 years have elapsed) it is incumbent upon the accused to play a somewhat active role in the process. I note that the right to silence is a manifestation of the presumption of innocence: R. v. Broyles, [1991] 3 S.C.R. 595; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Chambers, [1990] 2 S.C.R. 1293. The presumption of innocence flows to those "charged with an offence" or suspected of having committed one; once an individual has been convicted of an offence he or she is no longer simply "charged".
B.Given the discretionary nature of an extended period of parole ineligibility order under s. 744 of the Criminal Code , what is the appropriate standard of appellate review of such an order?
XLIII. In my view, the British Columbia Court of Appeal not only erred in law regarding the factors justifying the issuance of an extended period of parole ineligibility order, but also in the standard of appellate review it espoused.
XLIV. Lambert J.A. suggested that an appellate court should reduce the period of parole ineligibility imposed by the trial judge unless the trial judge has given specific reasons which, in the opinion of the appeal court, justify the increased period. This is a very broad standard of review, focusing in an exact manner on the appellate court's assessment of the correctness of the sentencing judge's decision. In my opinion, this standard of review is inappropriate.
XLV. Orders made under s. 744 are defined by s. 673 of the Code as forming part of the "sentence". They are thus to be appealed pursuant to the statutory right of appeal provided by s. 687(1) of the Code. Section 687(1) reads as follows:
687. (1) Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive,
(a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or
(b) dismiss the appeal. [Emphasis added.]
XLVI. The question, then, is whether a consideration of the "fitness" of a sentence incorporates the very interventionist appellate review propounded by Lambert J.A. With respect, I find that it does not. An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable.
XLVII. I would adopt the approach taken by the Nova Scotia Court of Appeal in the cases of R. v. Pepin (1990), 98 N.S.R. (2d) 238, and R. v. Muise (1994), 94 C.C.C. (3d) 119. In Pepin, at p. 251, it was held that:
. . . in considering whether a sentence should be altered, the test is not whether we would have imposed a different sentence; we must determine if the sentencing judge applied wrong principles or [if] the sentence is clearly or manifestly excessive.
XLVIII. Further, in Muise it was held at pp. 123-24 that:
In considering the fitness of a sentence imposed by a trial judge, this court has consistently held that it will not interfere unless the sentence imposed is clearly excessive or inadequate....
. . .
The law on sentence appeals is not complex. If a sentence imposed is not clearly excessive or inadequate it is a fit sentence assuming the trial judge applied the correct principles and considered all relevant facts . . . . My view is premised on the reality that sentencing is not an exact science; it is anything but. It is the exercise of judgment taking into consideration relevant legal principles, the circumstances of the offence and the offender. The most that can be expected of a sentencing judge is to arrive at a sentence that is within an acceptable range. In my opinion, that is the true basis upon which Courts of Appeal review sentences when the only issue is whether the sentence is inadequate or excessive.
XLIX. For a similar approach, see R. v. Émond, Que. C.A., No. 200‑10‑000173-893, February 6, 1990, J.E. 90-557.
L. Unreasonableness in the sentencing process involves the sentencing order falling outside the "acceptable range" of orders; this clearly does not arise in the present appeal. An error of law involves a situation such as that found in R. v. Chaisson, [1995] 2 S.C.R. 1118, in which a sentencing judge, while calculating the total time period of incarceration for the purposes of a "half-time" parole ineligibility order under s. 741.2 of the Code, erroneously included two offences in the calculations notwithstanding the fact that these specific offences were not listed in the schedule of offences to which the s. 741.2 orders apply.
LI. Regarding the issuance of reasons for extending the period of parole ineligibility, it is clear that the provision of reasons by the trial judge will help an appellate court assess the reasonableness of the sentencing decision. In a case where no reasons (either oral or written) are issued, the appellate court may be more inclined to find unreasonableness. However, the fact that no reasons are given should not automatically trigger a decision by appeal or appellate courts to reduce (or, for the matter, increase) the period of parole ineligibility imposed by the trial judge. Generally, although it is always preferable, in a matter as important as sentencing, for a trial judge to give reasons, a trial judge does not err merely because no reasons are given for deciding one way or the other: R. v. Smith, [1990] 1 S.C.R. 991; R. v. Burns, [1994] 1 S.C.R. 656, at p. 664. In any event, this discussion is, to a large extent, unnecessary in so far as the instant appeal is concerned since McKinnon J. clearly indicated why a period of 12 years was appropriate.
LII. Interestingly, I note that the deferential standard of appellate review of sentencing orders presently propounded by the Nova Scotia Court of Appeal had formerly been applicable in British Columbia. In R. v. Gourgon, supra, Bull J.A. had held at p. 197:
. . . the matter is clearly one of discretion and unless patently wrong, or wrong principles applied, or correct principles applied erroneously, or proper factors ignored or overstressed, an appellate Court should be careful not to interfere with the exercise of that discretion of a trial Judge.
LIII. Gourgon was impliedly overthrown by the pronouncements of Lambert J.A. in the instant appeal, which, in turn, are traceable to R. v. Brown, supra, and R. v. Walford (1984), 12 C.C.C. (3d) 257 (B.C.C.A.), per Nemetz C.J.B.C. As can be gleaned from this discussion, I find Bull J.A.'s standard to be preferable and better aligned with generally accepted jurisprudential principles. In this connection, on the issue of appellate review I would reject Lambert J.A.'s pronouncements in the instant appeal to the extent that they overturn Gourgon and diverge from Pepin and Muise.
VI. Conclusions and Disposition
LIV. The trial judge properly considered the relevant factors in exercising the discretionary jurisdiction given to him under s. 744. The Court of Appeal erred in postulating an unduly restrictive and narrow approach to s. 744 and by adopting a standard of appellate review that was tantamount to substituting its opinion for that of the trial judge. Consequently, I would allow the appeal, set aside the decision of the British Columbia Court of Appeal, and restore the trial judge's s. 744 order of a period of parole ineligibility of 12 years.
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