Canadian Criminal Appeals - Week of September 21, 2020

In R v Hilbach; R v Zwozdesky, 2020 ABCA 332 a majority of the ABCA (Strekaf & Feehan JJA) upheld the lower court determinations that the 5-year MMS sentence for robbery with a prohibited firearm (2018 ABQB 526) and the 4-year MMS sentence for robbery with a firearm (2019 ABQB 322) infringed s. 12 of the Charter in relation to reasonably foreseeable offenders. This is, I believe, the first time any appellate court has held these provisions to be unconstitutional: see R v Bernarde, 2018 NWTCA 7; R v McDonald, 1998 CanLII 13327 (ONCA); R v Wust, 1998 CanLII 5492 (BCCA); R c Lapierre, 1998 CanLII 13203 (QCA); R v McIntyre, 2019 ONCA 161; R v McIvor, 2018 MBCA 29. I wonder whether the ABCA will continue to assign Justice Wakeling (dissenting in Hilbach; Zwozdesky) to preside over any further s. 12 matters given his outright disdain for the foundational jurisprudence: see R v Hills, 2020 ABCA 263. I recall Berger JA’s concern that the ABCA “has failed to establish and abide by a protocol that provides for the random assignment of judges to sentencing panels” and “[t]he presence of individual discretion in a system of assignment poses a risk that some may think that panelists will be selected based on their perceived predispositions” (R v Gashikanyi, 2017 ABCA 194 at 70-71).

In R v Alisaleh, 2020 ONCA 597 the ONCA allowed the conviction appeal on the basis that “the trial judge erred in finding that the complainant’s credibility was enhanced because she did not appear to exaggerate her allegations against the appellant” (13). Observing that “there is nothing wrong with noting the absence of something that could have diminished credibility”, the ONCA held that it was wrong in this case for the trial judge “to reason that because an allegation could have been worse, it is more likely to be true” (16). This was not an error that could be cured by the proviso because “we cannot say for certain that a conviction would have been inevitable had the judge not considered the lack of embellishment to be a positive factor going to the credibility of the complainant”; “any doubt as to the impact of the error must be resolved against the Crown” (19).

A few courts of appeal dealt with the application of Gladue in cases of serious violence. In upholding the 10-year sentence for, inter alia, a “vicious” aggravated assault, the ONCA in R v McNeil, 2020 ONCA 595 (per Zarnett JA) observed that “[i]t would be unreasonable to assume that the community of which the appellant is a member lacks a strong interest in the safety of persons who are incarcerated” and “[t]he circumstances of this case do not mark it as one where the principles of restorative justice should assume a more prominent role” (52 & 55). In R c LP, 2020 QCCA 1239 a majority of the QCCA allowed the Crown’s sentence appeal in this case of serious (and repeat) domestic violence - involving “a difficult question of balancing” competing statutory priorities - because the sentencing judge failed “to properly consider and give weight to the increased vulnerability and the particular circumstances of the Indigenous female victim who was the subject of violent spousal abuses” - a consideration recently codified in s 718.04 of the Code (64, 76-101 & 123-124)