R. v. Parranto

R. v. Parranto
Collection
Supreme Court Judgments
Date
2021-11-12
Neutral citation
2021 SCC 46
Report
[2021] 3 SCR 366
Case number
39227
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas
On appeal from
Alberta
Subjects
Criminal law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366
Appeals Heard: May 18, 2021 Judgment Rendered: November 12, 2021 Docket: 39227
Between:
Cameron O’Lynn Parranto, also known as Cameron O’Lynn Rocky Parranto Appellant
and
Her Majesty The Queen Respondent
And Between:
Patrick Douglas Felix Appellant
and
Her Majesty The Queen Respondent
- and -
Attorney General of Manitoba, Attorney General of Alberta, Criminal Trial Lawyers’ Association, Canadian Civil Liberties Association, Aboriginal Legal Services, Legal Aid Society of Alberta and Association québécoise des avocats et avocates de la défense Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
Joint Reasons for Judgment: (paras. 1 to 83)
Brown and Martin JJ. (Wagner C.J. and Kasirer J. concurring)
Concurring Reasons: (paras. 84 to 101)
Moldaver J. (Côté J. concurring)
Concurring Reasons: (paras. 102 to 204)
Rowe J.
Dissenting Reasons: (paras. 205 to 253)
Karakatsanis J. (Abella J. concurring)
Cameron O’Lynn Parranto, also known as
Cameron O’Lynn Rocky Parranto Appellant
v.
Her Majesty The Queen Respondent
‑ and ‑
Patrick Douglas Felix Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Manitoba,
Attorney General of Alberta,
Criminal Trial Lawyers’ Association,
Canadian Civil Liberties Association,
Aboriginal Legal Services,
Legal Aid Society of Alberta and
Association québécoise des avocats et avocates de la défense Interveners
Indexed as: R. v. Parranto
2021 SCC 46
File No.: 39227.
2021: May 18; 2021: November 12.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal of alberta
Criminal law — Sentencing — Starting points — Sentencing ranges — Standard of review in sentencing appeals — Accused sentenced for offence of wholesale trafficking in fentanyl — Crown appealing sentences — Court of Appeal setting starting point for sentence for offence and increasing sentences — Role played by starting points and sentencing ranges in appellate review of sentences — Whether accused’s sentences demonstrably unfit.
F and P pleaded guilty to various offences arising out of unrelated drug trafficking operations, including trafficking fentanyl at the wholesale commercial level. F received a global sentence of 7 years and P received a global sentence of 11 years. The Crown appealed the sentences. The Court of Appeal set a starting point sentence of 9 years for wholesale fentanyl trafficking and increased F’s global sentence to 10 years and P’s global sentence to 14 years.
Held (Abella and Karakatsanis JJ. dissenting): The appeals should be dismissed.
Per Wagner C.J. and Brown, Martin and Kasirer JJ.: The sentences at trial were demonstrably unfit and the Court of Appeal’s intervention was appropriate. There is no need to disavow the starting‑point approach to sentencing. Sentencing ranges and starting points are simply different tools that assist sentencing judges in reaching a proportionate sentence. It is not for the Court to dictate which of these tools can or cannot be used. Provincial appellate courts should be afforded the respect and latitude to provide their own forms of guidance to sentencing judges, as long as that guidance comports with the principles and objectives of sentencing and with the proper appellate standard of review. However, starting points must be properly treated as non‑binding guidance by both sentencing and appellate courts and appellate courts must adhere to the deferential standard of review in sentencing appeals and to the Court’s clear direction on how to account for starting points when reviewing sentences for errors in principle and demonstrable unfitness.
Sentencing is one of the most delicate stages of the criminal justice process. It requires judges to consider and balance a multiplicity of factors and it remains a discretionary exercise. The goal in every case is a fair, fit and principled sanction. Proportionality is the organizing principle in reaching this goal, and parity and individualization are secondary principles. Individualization is central to the proportionality assessment. Each offence is committed in unique circumstances by an offender with a unique profile. The question is always whether the sentence reflects the gravity of the offence, the offender’s degree of responsibility and the unique circumstances of each case. Sentencing courts are best‑positioned to craft a fit sentence for the offenders before them. As for appellate courts, they play two roles: considering the fitness of a sentence appealed against and promoting stability in the development of the law while providing guidance to lower courts to ensure the law is applied consistently. Appellate courts are well‑positioned to provide such guidance because of their appreciation of overall sentencing practices, patterns and problems in their jurisdiction.
Appellate guidance may take the form of quantitative tools such as sentencing ranges and starting points, non‑quantitative guidance explaining the harms entailed by certain offences, or a mix of both. Quantitative appellate guidance, generally starting points or sentencing ranges, operate to ensure sentences reflect the sentencing principles prescribed in the Criminal Code. Neither relieves the sentencing judge from conducting an individualized analysis. Sentencing ranges generally represent a summary of the case law that reflects past minimum and maximum sentences imposed by trial judges. Starting points are an alternative to ranges. The starting‑point methodology has three stages: defining the category of an offence to which the starting point applies; setting a starting point; and individualization of the sentence by the sentencing court. Both reflect judicial consensus on the gravity of the offence. Irrespective of the preferred sentencing methodology, the purpose of the modality is to assist the sentencing judge in achieving the objectives and principles of sentencing, primarily proportionality. Ranges and starting points are simply different paths to the same destination: a proportionate sentence. Courts of appeal have discretion to choose which form of guidance they find most useful; however, because starting points are not binding precedents, parties seeking to challenge them need not have resort to a reconsideration application procedure.
Sentencing decisions are entitled to a high level of deference on appeal. Deviation from a range or starting point does not in itself justify appellate intervention. Unless a sentence is demonstrably unfit or the sentencing judge made an error in principle that impacted the sentence, an appellate court must not vary the sentence. Ranges and starting points cannot be binding in theory or practice and appellate courts cannot apply the standard of review to enforce them. Directions in R. v. Arcand, 2010 ABCA 363, relating to the binding nature of starting points do not reflect the required standard of appellate review. It is not the role of appellate courts to enforce a uniform approach to sentencing through the application of the standard of review; rather, appellate courts must guard against undue scrutiny of the sentencing judge’s discretionary choice of method. There is no longer space to interpret starting points or ranges as binding in any sense. Departing from a range or starting point is appropriate where required to achieve proportionality and exceptional circumstances are not required when departing from a range or starting point to achieve proportionality.
Starting points do not relieve the sentencing judge from considering all relevant sentencing principles. Sentencing judges have discretion over which objectives to prioritize and may choose to weigh rehabilitation and other objectives more heavily than “built‑in” objectives like denunciation and deterrence. Appellate sentencing guidance ought not to purport to pre‑weigh or build in any mitigating factors and starting points should not be viewed as incorporating principles such as restraint or rehabilitation. Sentencing judges are not precluded from considering any factor that is built in to a starting point as mitigating in the individual circumstances and retain the discretion to weigh all relevant factors in their global assessment of a fit sanction. When setting starting points and ranges, inclusion of characteristics of an archetypal offender could impede individualization of sentences. Sentencing ranges and starting points are applicable only inasmuch as they solely speak to the gravity of the offence. By restricting starting points and ranges to strictly offence‑based considerations, they will continue to be useful without fettering discretion or impeding individualization in a way that could produce clustering of sentences. Any risk of clustering is properly addressed by ensuring sentencing judges consider all factors relevant to each individual offender and by clarifying the proper standard of review on appeal.
Starting‑point methodologies are not mutually incompatible with Gladue principles. When reviewing sentences imposed on Indigenous offenders, appellate courts must bear in mind that a formalistic approach to parity should not be allowed to undermine the remedial purpose of s. 718.2(e). They must also factor in the unique circumstances of an Indigenous offender which could reasonably and justifiably impact the sentence. Starting points do not relieve sentencing judges from considering whether different or alternative sanctions may more effectively achieve the objectives of sentencing. Finally, starting‑point sentencing is not a quasi‑legislative endeavour. Judicially created categories for sentencing are not unique to starting points. Appellate courts are entitled to conclude that certain forms of conduct are generally more serious and should attract a higher range or starting point. The risk of incursion into the legislative sphere arises only where an appellate court departs from the standard of review by treating a sentencing judge’s selection of a category as an error in principle.
The Court of Appeal did not err in setting a starting point for wholesale fentanyl trafficking. It was not necessary to wait for the development of an historical portrait of past sentences. Appellate courts must sometimes set a new direction that reflects a contemporary understanding of the gravity of the offence. It was open to the Court of Appeal to set out guidance conveying the gravity of wholesale trafficking in fentanyl. A key factor in the categorization of drug offences has always been the nature of the drug and harm‑based analyses are not an unfamiliar judicial exercise. Appellate courts may step in to provide guidance to ensure sentences reflect harms, even where the drug is relatively new. The Court of Appeal was entitled to take the lead and consider the public health crisis in Alberta.
F’s seven‑year sentence was demonstrably unfit. The sentencing judge misapprehended the gravity of the offence and referred to cases that were significantly factually distinct. A more accurate sentencing range for this offence would be 8 to 15 years. The sentencing judge’s error impacted his assessment of parity. F’s sentence was a substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes. An assessment of the gravity of the offence may take into account the offender’s willingness to exploit at‑risk populations and communities. F was trafficking fentanyl destined for resale in the remote communities in Nunavut. The sentence of 10 years imposed by the Court of Appeal should be upheld.
P’s 11‑year global sentence was also demonstrably unfit. There is no reason to disturb the sentence of 14 years imposed by the Court of Appeal. The trial judge erred in his selection of comparator cases and in finding a relevant range of 5 to 7 years’ imprisonment. P was in possession of significant amounts of fentanyl and other drugs, guns and body armour. He had a lengthy criminal record and re‑established his presence as a wholesale trafficker following his release. Based on the gravity of the offence, Gladue factors and P’s aggravating and mitigating circumstances, a global sentence of 14 years is appropriate.
Per Moldaver and Côté JJ.: The appeals should be dismissed. The sentences imposed by the sentencing judges in both cases were demonstrably unfit. They fall markedly below the range of sentences warranted in cases involving the directing minds of largescale fentanyl trafficking operations. With respect to the role of starting points in sentencing, there is agreement with Rowe J.
Appellate courts can and should depart from prior sentencing precedents that no longer reflect society’s understanding of the gravity of a particular offence and the blameworthiness of particular offenders. The gravity of largescale trafficking in fentanyl for personal gain requires severe penalties, ranging from mid‑level double digit penitentiary terms up to and including life imprisonment. Trafficking in hard drugs leads to addiction, debilitating adverse health effects, death by overdose and an increase in all manner of crime by those seeking to finance their addiction and organized crime syndicates. Much of this criminal activity is violent. A devastating consequence of the hard drug trade is its impact on families and the intergenerational trauma it causes. It leads to significant costs to society in terms of health care and law enforcement expenses, as well as lost productivity.
Fentanyl has altered the landscape of the substance abuse crisis in Canada. It is a highly addictive substance which puts its users at risk of serious harm, far greater than other opioids. Various courts have described fentanyl as a national crisis and the epidemic shows no signs of abating. The time has come for the perception of the gravity of largescale trafficking in fentanyl to accord with the gravity of the crisis it has caused.
Accordingly, heavy penitentiary sentences will be appropriate where offenders have trafficked in large quantities of fentanyl and assumed leadership roles in the trafficking operation. Substantial sentences should be neither unusual nor reserved for exceptional circumstances, and maximum sentences should not be reserved for the abstract case of the worst crime committed in the worst circumstances. Sentencing judges should feel justified, where circumstances warrant, in applying mid‑level double digit sentences and, in particularly aggravating circumstances, potential sentences of life imprisonment.
Per Rowe J.: The appeals should be dismissed. There is agreement with Moldaver J. and the additional guidance he provides.
Starting points are not a permissible form of appellate guidance. The starting‑point approach is, in theory and in practice, contrary to Parliament’s sentencing regime and the Court’s jurisprudence. It undermines the discretion of sentencing judges and departs from the standard of deference required by appellate courts. As a result, it thwarts the imposition of proportionate and individualized sentences. Despite guidance from the Court on numerous prior occasions, the Court of Appeal’s approach has remained unchanged. There is only one effective response: to say that starting‑point methodology can no longer be used.
As mandated by s. 718.1 of the Criminal Code, in all cases, sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Secondary principles also guide the sentencing process, in particular parity, which requires that similar offenders who commit similar offences in similar circumstances receive similar sentences. In order to produce proportionate sentences, sentencing must be highly individualized. Sentencing judges must determine which objectives of sentencing merit greater weight and evaluate the importance of mitigating or aggravating factors, to best reflect the circumstances of each case. An appellate court can only vary a sentence if it is demonstrably unfit or the sentencing judge made an error in principle that had an impact on the sentence. An appellate court cannot intervene simply because it would have weighed relevant factors and objectives differently.
Starting points are, by their nature, a prescriptive form of appellate guidance, in that they provide a sequence to follow when determining a fit sentence. Their foundational rationale is the idea that appellate courts are institutionally responsible for creating and enforcing a uniform approach to sentencing. The starting-point approach seeks to reduce arbitrariness, disparity and idiosyncratic decision‑making in order to maintain public confidence in the administration of justice. The flaw in this rationale is apparent. Variability resulting from individualization is an essential feature of just sentencing, not a problem. Giving effect to Parliament’s choice to confer broad discretion on sentencing judges will inevitably produce variation in sentences. Focussing on variability as a problem is inconsistent with the Court’s jurisprudence; it also creates or reinforces problems. Jail becomes the norm, starting points become hardened into fixed sentences, and factors leading to systemic discrimination are ignored or inadequately dealt with.
The starting‑point approach is also grounded in an erroneous view of proportionality. Proportionality is not achieved by ranking of offences and categories of offences. It is achieved through individualized sentencing that takes into account the specific circumstances of both the offender and the offence. The Court of Appeal’s approach is dismissive of the value of precedent in achieving proportionality. Finally, the starting-point approach is premised on a misconception of the role of appellate courts. It sees individualization as a threat to the rule of law and requires appellate courts to create and enforce a uniform approach to sentencing. It reverses the logic of deference to sentencing judges and frames appellate courts as being primarily institutionally responsible and capable for sentencing. Starting points shift effective decision‑making authority from individual sentencing judges and concentrate that authority in the Court of Appeal.
The starting‑point approach also produces practical issues at each of its stages. Setting starting points is a policy‑intensive process which the legislature or a statutory body is better suited to conduct. Starting points can operate like judicially‑created criminal offences but creating new offences is the exclusive preserve of Parliament. Furthermore, starting points raise procedural fairness concerns. The offender may not have the resources to guide the court in setting a starting point and future offenders do not have the opportunity to challenge the evidence relied on to set starting points. Sentencing requires flexibility to ensure a result that is fit for the offender and for the administration of criminal justice and the starting-point approach does not provide adequate room for such flexibility.
The application of starting points by trial judges is another area in which the starting-point approach is inconsistent with the principles of sentencing. Sentencing judges have less discretion to fully consider all relevant circumstances and are less likely to arrive at individualized and proportionate sentences. Starting points overemphasize deterrence and denunciation. They are defined solely in relation to the gravity of the offence. Moral blameworthiness and personal characteristics are secondary considerations. This is a methodological problem because the gravity of the offence and moral blameworthiness must be considered in an integrated manner to achieve proportionate sentences. Sentencing judges using a presumptive sentence do not follow a truly individualized process. Building in some factors to the starting point effectively prescribes the weight to be given to these factors, displacing the sentencing judges’ discretion to determine their weight. Under the starting‑point approach, categorization is pivotal, and this improperly shifts the main focus from whether a sentence is just and appropriate to which judicially‑created category applies. The starting‑point approach also bunches sentences around a median. This clustering effect is antithetical to individualization. Starting points are often established to emphasize deterrence and denunciation and to ensure more retributive punishment. This runs contrary to the objectives of reducing prison as a sanction and expanding use of restorative justice principles. As well, starting points make it more difficult for judges to give adequate weight to restorative justice principles because they are designed to be easy to move up and hard to move down. They explicitly or implicitly foreclose reliance on multiple mitigating factors, which risks overlooking lower, appropriate sentences.
In addition, starting points are incompatible with Parliament’s direction for sentencing Aboriginal offenders. Gladue requires sentencing judges to undertake sentencing of Aboriginal offenders individually and differently, taking into account systemic and background factors that bear on the culpability of the offender and the types of sanctions which might be appropriate because of the offender’s Aboriginal heritage or connection. Methodologically, it would be an error to determine an appropriate sentence for Aboriginal offenders by reference to a typical non‑Aboriginal offender and the starting‑point approach is contrary to Parliament’s direction to take into account the unique circumstances of Aboriginal offenders.
Finally, starting points are aggressively enforced by appellate courts. The Court of Appeal of Alberta continues to rely on starting points to circumvent the settled standard of appellate sentencing review. Sentencing judges are not free to ignore starting points and failure to place an offence within the correct category is considered reviewable error. The time is past due to deal decisively with the methodological problems inherent in starting points. Those flaws are structural. They cannot be cured by repeating exhortations relating to the standard of review. The only effective response is to say that the starting-point methodology should no longer be used.
Per Abella and Karakatsanis JJ. (dissenting): There is agreement with Brown and Martin JJ. that starting points are a permissible form of appellate sentencing guidance, provided that they are not used to curtail the highly deferential sentencing standard of appellate review. However, both appeals should be allowed and the original sentences should be restored. The Court of Appeal did not act with restraint and deference. Neither trial judge made an error in principle nor was either sentence demonstrably unfit. Both trial judges appreciated the very grave nature of the offences and reasonably exercised their discretion to place great weight on mitigating factors and rehabilitative sentencing principles. It was not open to the Court of Appeal to reweigh those factors or to second-guess those principles.
The principles of appellate sentencing review are well-settled. Appellate courts can only intervene if the trial judge has erred in principle in a way that impacted the sentence or if the sentence was demonstrably unfit. A trial judge has not erred in principle simply because the appeal court would have weighed the relevant sentencing factors differently. A sentencing judge has discretion over which sentencing objectives to prioritize and which sentencing range is applicable in any given case. An appellate court cannot intervene just because it would have used a different range. Even if an error in principle is found, deference must be shown unless the error impacted the sentence. In the absence of any errors in principle that impacted the sentence, an appellate court can only intervene if the sentence is demonstrably unfit, meaning that it constitutes an unreasonable departure from the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence is not demonstrably unfit simply because it falls outside of a particular sentencing range or there is significant deviation from a starting point. Whether a sentence is demonstrably unfit is a qualitative rather than a quantitative assessment. What matters is whether the trial judge imposed a proportionate sentence by reasonably appreciating the gravity of the offence and the degree of responsibility of the offender in the specific circumstances of the case.
The Court of Appeal was not justified in intervening in either F or P’s case. None of the purported errors in principle are borne out on a fair reading of the trial reasons. It cannot be said that F’s trial judge took such a lenient view of wholesale fentanyl trafficking or minimized F’s culpability to such a degree that the sentence was an unreasonable departure from the proportionality principle. The trial judge considered placing F within a range of five to nine and a half years but did not do so as this would not give appropriate weight to mitigating factors. The trial judge found multiple strong mitigating factors, including F’s extremely promising prospects of rehabilitation. It was not open to the Court of Appeal to reweigh these factors. The trial judge made no errors in principle that impacted the sentence. In P’s case, the trial judge’s initial notional sentence of 15 years represents an appropriately grave view of grave offences. The Court of Appeal took issue with the trial judge’s use of three mitigating factors: P’s lack of knowledge of the harms of fentanyl, P’s addiction and P’s Métis heritage. In the absence of palpable and overriding error, the Court of Appeal was not entitled to disagree and all three critiques impermissibly intruded upon the trial judge’s factual findings. The Court of Appeal also took issue with the trial judge’s totality analysis. However, totality is a sentencing principle. Different judges may have approached totality differently but that does not mean the trial judge erred. The trial judge did not err in principle and P’s sentence was not demonstrably unfit.
Cases Cited
By Brown and Martin JJ.
Disapproved: R. v. Arcand, 2010 ABCA 363, 40 Alta. L.R. (5th) 199; referred to: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Friesen, 2020 SCC 9; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Shropshire, [1995] 4 S.C.R. 227; R. v. Williams, 2019 BCCA 295; R. v. Sandercock (1985), 40 Alta. L.R. (2d) 265; R. v. Smith, 2019 SKCA 100, 382 C.C.C. (3d) 455; R. v. Brennan and Jensen (1975), 11 N.S.R. (2d) 84; R. v. McDonnell, [1997] 1 S.C.R. 948; R. v. Stone, [1999] 2 S.C.R. 290; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. Hajar, 2016 ABCA 222, 39 Alta. L.R. (6th) 209; R. v. McCowan, 2010 MBCA 45, 251 Man. R. (2d) 295; R. v. Lemaigre, 2018 SKCA 47; R. v. Smith, 2017 BCCA 112; R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330; R. v. H. (C.N.) (2002), 62 O.R. (3d) 564; R. v. Voong, 2015 BCCA 285, 374 B.C.A.C. 166; R. v. Cunningham (1996), 27 O.R. (3d) 786; R. v. Wright (2006), 83 O.R. (3d) 427; R. v. Melnyk, 2014 ABCA 313, 580 A.R. 389; R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496; R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163; R. v. Johnas (1982), 41 A.R. 183; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Burnett, 2017 MBCA 122, 358 C.C.C. (3d) 123; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. Stewart, 2021 ABCA 79, 21 Alta. L.R. (7th) 213; R. v. Gandour, 2018 ABCA 238, 73 Alta. L.R. (6th) 26; R. v. Sidwell, 2015 MBCA 56, 319 Man. R. (2d) 144; R. v. Okimaw, 2016 ABCA 246, 340 C.C.C. (3d) 225; R. v. Kain, 2004 ABCA 127, 35 Alta. L.R. (4th) 5; R. v. Skani, 2002 ABQB 1097, 331 A.R. 50; R. v. Paul, 2016 ABPC 113; R. v. Matwiy (1996), 178 A.R. 356; R. v. Beardy, 2017 MBPC 32, aff’d 2018 MBCA 52; R. v. Park, 2016 MBCA 107, 343 C.C.C. (3d) 347; R. v. Swampy, 2017 ABCA 134, 50 Alta. L.R. (6th) 240; R. v. Bird, 2021 ABCA 243; R. v. Drake (1997), 151 Nfld. & P.E.I.R. 220; R. v. Sanatkar (1981), 64 C.C.C. (2d) 325; R. v. Leach, 2019 BCCA 451; R. v. Sinclair, 2016 ONCA 683; R. v. Solano‑Santana, 2018 ONSC 3345; R. v. White, 2020 NSCA 33, 387 C.C.C. (3d) 106; R. v. Borris, 2017 NBQB 253; R. v. Sidhu, C.J. Ontario, No. 17‑821, June 16, 2017, aff’d 2019 ONCA 880; R. v. Petrowski, 2020 MBCA 78, 393 C.C.C. (3d) 102; R. v. Vezina, 2017 ONCJ 775; R. v. Mai, [2017] O.J. No. 7248; R. v. Fuller, 2019 ONCJ 643; R. v. M.M.A., 2018 ABQB 250; R. v. Adams, 2018 ABPC 82; R. v. Dube, 2017 NWTSC 77; R. v. Aujla, 2016 ABPC 272.
By Moldaver J.
Referred to: R. v. Friesen, 2020 SCC 9; R. v. Smith, [1987] 1 S.C.R. 1045; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; R. v. Kang‑Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R. v. Hamilton (2004), 72 O.R. (3d) 1; R. v. Pearson, [1992] 3 S.C.R. 665; R. v. Profeit, 2009 YKTC 39; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545; R. v. Athwal, 2017 ONCA 222; R. v. Chukwu, 2016 SKCA 6, 472 Sask. R. 241; R. v. Dritsas, 2015 MBCA 19, 315 Man. R. (2d) 205; R. v. Smith, 2016 BCSC 2148, 363 C.R.R. (2d) 365; R. v. Joumaa, 2018 ONSC 317; R. v. Smith, 2017 BCCA 112; R. v. Vezina, 2017 ONCJ 775; R. v. Aujla, 2016 ABPC 272; R. v. Loor, 2017 ONCA 696; R. v. Frazer, 2017 ABPC 116, 58 Alta. L.R. (6th) 185; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163.
By Rowe J.
Referred to: R. v. Friesen, 2020 SCC 9; R. v. Arcand, 2010 ABCA 363, 40 Alta. L.R. (5th) 199; R. v. McDonnell, [1997] 1 S.C.R. 948; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Willaert, [1953] O.R. 282; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599; R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Hamilton (2004), 72 O.R. (3d) 1; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163; R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496; R. v. McKnight (1999), 135 C.C.C. (3d) 41; R. v. Shropshire, [1995] 4 S.C.R. 227; Calderon v. R., 2015 QCCA 1573; Ferland v. R., 2009 QCCA 1168, [2009] R.J.Q. 1675; R. v. Sandercock (1985), 22 C.C.C. (3d) 79; R. v. Lee, 2012 ABCA 17, 58 Alta. L.R. (5th) 30; R. v. Gashikanyi, 2017 ABCA 194, 53 Alta. L.R. (6th) 11; R. v. D.S.C., 2018 ABCA 335, [2019] 3 W.W.R. 259; R. v. Lafrance (1993), 59 Q.A.C. 213; R. v. Hajar, 2016 ABCA 222, 39 Alta. L.R. (6th) 209; R. v. M. (B.S.), 2011 ABCA 105, 44 Alta. L.R. (5th) 240; R. v. Stone, [1999] 2 S.C.R. 290; R. v. Bjornson, 2012 ABCA 230, 536 A.R. 1; R. v. Maskill (1981), 29 A.R. 107; R. v. Melnyk, 2014 ABCA 313, 580 A.R. 389; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3; R. v. Chouhan, 2021 SCC 26, [2021] 2 S.C.R. 136; R. v. Hotchen, 2021 ABCA 119, 22 Alta. L.R. (7th) 64; R. v. Johnas (1982), 41 A.R. 183; R. v. Matwiy (1996), 178 A.R. 356; R. v. Wright (2006), 83 O.R. (3d) 427; R. v. Agin, 2018 BCCA 133, 361 C.C.C. (3d) 258; R. v. W. (C.W.) (1986), 43 Alta. L.R. (2d) 208; R. v. H. (C.N.) (2002), 62 O.R. (3d) 564; R. v. Voong, 2015 BCCA 285, 374 B.C.A.C. 166; R. v. Cunningham (1996), 104 C.C.C. (3d) 542; R. v. Rahime, 2001 ABCA 203, 95 Alta. L.R. (3d) 237; R. v. Ma, 2003 ABCA 220, 23 Alta. L.R. (4th) 14; R. v. Corbiere, 2017 ABCA 164, 53 Alta. L.R. (6th) 1; R. v. Giroux, 2018 ABCA 56, 68 Alta. L.R. (6th) 21; R. v. L’Hirondelle, 2018 ABCA 33; R. v. Melnyk, 2014 ABCA 344, 584 A.R. 238; R. v. Godfrey, 2018 ABCA 369, 77 Alta. L.R. (6th) 213; R. v. Zawahra, 2016 QCCA 871; R. v. Sprague (1974), 19 C.C.C. (2d) 513; R. v. Wilson, 2009 ABCA 257, 9 Alta. L.R. (5th) 283; R. v. Huskins, 2018 ABPC 227; R. v. Soosay, 2017 ABQB 478; R. v. Ilesic, 2000 ABCA 254, 89 Alta. L.R. (3d) 299; R. v. Innes, 2012 ABCA 283; R. v. Reddekopp, 2018 ABCA 399, 79 Alta. L.R. (6th) 215; R. v. J.A.S., 2019 ABCA 376; R. v. Moriarty, 2016 ABPC 25, 34 Alta. L.R. (6th) 110; R. v. Boriskewich, 2017 ABPC 202, 62 Alta. L.R. (6th) 194; R. v. Wakefield, 2020 ABCA 352; R. v. Roberts, 2020 ABCA 434, 17 Alta. L.R. (7th) 255; R. v. Morton, 2021 ABCA 29; R. v. Tran, 2010 ABCA 317, 490 A.R. 229; R. v. G.B., 2013 ABCA 93, 544 A.R. 127; R. v. Brodt, 2016 ABCA 373, 46 Alta. L.R. (6th) 213.
By Karakatsanis J. (dissenting)
R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Friesen, 2020 SCC 9; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. McKnight (1999), 135 C.C.C. (3d) 41; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. M. (C.A.), [1996] 1 S.C.R. 500.
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APPEAL from a judgment of the Alberta Court of Appeal (Paperny, Watson, Slatter, Crighton and Antonio JJ.A.), 2019 ABCA 457, 98 Alta. L.R. (6th) 114, [2020] 5 W.W.R. 1, [2019] A.J. No. 1587 (QL), 2019 CarswellAlta 2519 (WL Can.), varying a sentence entered by Ouellette J., 2018 ABQB 863, [2018] A.J. No. 1225 (QL), 2018 CarswellAlta 2338 (WL Can.). Appeal dismissed, Abella and Karakatsanis JJ. dissenting.
APPEAL from a judgment of the Alberta Court of Appeal (Paperny, Watson, Slatter, Crighton and Antonio JJ.A.), 2019 ABCA 458, 98 Alta. L.R. (6th) 136, [2020] 5 W.W.R. 420, [2019] A.J. No. 1588 (QL), 2019 CarswellAlta 2520 (WL Can