Jan 15, 2017

Let’s Talk About Lacasse, Part 2: The Implications of Lacasse for the Sentencing Process

R. v. Lacasse, 2015 SCC 64 (CanLII)

This is the second part of a two-part series on the Supreme Court’s decision in R v Lacasse. Part 1 discusses how the majority decision in Lacasse raises the standard for appellate review on sentencing decisions. Part 2 highlights two problematic aspects of Lacasse: the majority’s unconvincing reasoning in justifying a high standard of review and the implications of the majority’s endorsement of using local crime rates as a factor in the sentencing process.

Why Justice Wagner’s Statutory Interpretation of the Code Fails to Make a Convincing Case for Deference

Since R v Shropeshire, [1995] 4 SCR 227 (Shropeshire) and R v M (CA), [1996] 1 SCR 500 (M(CA)), the Supreme Court has reiterated on several occasions the high threshold upon which appellate courts may intervene with sentencing decisions. In R v Lacasse, 2015 SCC 64 (Lacasse), Wagner writes that the central reasoning behind this approach is the broad discretion trial judges have been explicitly granted by Parliament in crafting appropriate sentences under section 718.3(1) of the Criminal Code, RSC 1985, c C-46.

I find Justice Wagner’s reasoning in this regard unconvincing. Justice Wagner’s analysis of the operative provisions in the Code is one-sided, focusing too much on the role Parliament carved out for trial judges in sentencing, while ignoring the special role Parliament reserved for appellate courts. Although Justice Wagner explicitly highlights section 718.3(1) as providing the basis from which judicial discretion in sentencing decisions flows, he does not give section 687(1), which grants appellate courts the power to intervene in sentencing decisions under this provision, similar emphasis. Section 687(1) states that: “Where an appeal is taken against sentence, the court of appeal shall … consider the fitness of the sentence appealed against, and may, on such evidence, if any, as it thinks fit to require or to receive … vary the sentence [emphasis added].”

A plain reading of section 687(1) indicates Parliament intended appellate judges to have an extensive basis for intervening with sentences. In fact, the “shall” in the provision is imperative, mandating that judges must consider the fitness of a sentence if it is appealed. The provision is clear: appellate courts are statutorily empowered to vary a sentence deemed to be unfit (a bar that is far lower than the Supreme Court’s requirement the sentence be “demonstrably unfit”).

Because section 687(1) provides wide latitude for appellate judges to review sentencing decisions, the case law that has evolved out of Shropeshire, and the even more restricted scope of appellate review articulated in Lacasse, very clearly flies in the face of section 687(1). It is ironic that by claiming to uphold the legislative intent encapsulated in s 718.3(1) by limiting the scope of appellate review of sentencing decisions, the Supreme Court has completely ignored, and in fact undermined, the legislative intent that underpins s 687(1). I would argue that a textual analysis of both provisions side-by-side suggests that Parliament indeed intended trial judges to have broad discretion in granting sentencing decisions, but that it had also intended appellate judges to vary—and in the very least review—sentences whenever questions of fitness arose.

A Trial Judge’s “Comparative Advantage” and “Local Experience”: Two Red Herrings That Are Not as Beneficial As You May Think

Justice Wagner’s other justifications for a deferential approach to sentencing review are similarly unconvincing. Justice Wagner also maintains that the highly subjective and individualized analysis that is required of sentencing decisions militates in favour of deference. Because trial judges have the comparative advantage of having seen and heard all of the witnesses, they are better equipped to handle the “delicate” task of proportionate sentencing. Similarly, sentencing judges have local experience and can better respond to the particular needs of the community in which the crime was committed.

But on a more careful analysis, the factors of comparative advantage and local experience are far less beneficial than they may seem at first blush. As Professor Manson discusses in his book, the comparative advantage trial judges have by hearing the witnesses—if present—certainly supports a claim for deference. The point however is that this advantage is not universally present. To understand why this is so, we need to consider the realities of the sentencing process. Sentencing is most commonly preceded by a guilty plea. In these cases, there has been no trial, and what the judge knows about the offender is limited to what counsel has said about the offender and the offender’s physical appearance. This hardly provides a trial judge with a strong comparative advantage over an appellate court.

The factor of local experience is also a double-edged sword. Professor Manson points out that “the fact that trial judges are at the front lines” has the danger of resulting in unfit sentences because being in the front lines may yield more emotional responses, disproportionate reactions, and added complexity from local furor during the sentencing process. One need look no further than the ongoing public outcry over the Marco Muzzo case for an example of just this sort of furor (see The Court commentary on that case here). In these emotionally, socially, and politically charged situations, the more impartial hand of an appellate court may very well be preferable to the trial judge caught in the middle of the hurricane.

The Downside of Taking a Deferential Approach to Sentencing Appeals

An approach that grants both discretion to trial judges in setting sentences, and latitude to appeal judges in reviewing sentences, better respects the sensitivity of what Justice Iacobucci in Shropeshire characterized as a “profoundly subjective process.” It is imperative that trial judges be allowed to exercise discretion in applying the purposes and principles of sentencing outlined in sections 718-718.2 in order to tailor appropriate sentences to the individual accused. But it makes little sense to acknowledge how delicate and idiosyncratic the sentencing process is and how difficult it is to achieve the right balance, while simultaneously severely limiting when sentences can be reviewed.

It is precisely for this reason that appellants must be allowed an effective right of appeal to ensure that an imposed sentence is indeed a fit one. This is no more and no less than the Code itself requires. Moreover, it is particularly important that an effective right of appeal exist from the perspective of the convicted individual: sentencing outcomes directly affect the liberty interests of an individual and therefore possess a distinctly constitutional dimension.

The long-term implications of Lacasse are troubling because they erode the procedural protections provided by appellate courts, not just for individual appellants, but sentencing law as a whole. Appellate courts fulfill a dual role. As Justice Wagner himself recognizes, they “act as a safeguard against errors made by trial courts,” and they also formulate guiding principles for trial courts to follow, to “ensure the coherent development of the law.” By fettering the discretion of appellate courts to review sentencing decisions, Lacasse stunts the coherent development of sentencing law and places artificial barriers on rights of appeal in a manner that threatens the fair administration of justice.

The Implications of Formal Recognition that Local Crime Rates Can Influence Sentencing Decisions

Lacasse also has an important effect on sentencing law quite apart from the issues it raises around appellate review of sentencing decisions.

In conducting his sentencing analysis, Justice Couture, the trial judge, referred to the “local situation” in the Beauce region with respect to impaired driving offences, stressing the need to convey a strong message of general deterrence and denunciation. Justice Wagner approved of this aspect of the decision, holding that “local characteristics in a given region may explain certain differences in the sentences imposed on offenders by the courts. The frequency of a type of offence in a particular region can certainly be a relevant factor for a sentencing judge.” In Justice Wagner’s view, the need to denounce unlawful conduct, to deter others from committing the same crime, is a salient reason for considering the frequency of a crime in a particular region.

Justice Gascon again wrote a strong dissent on this point, which encapsulates quite well why I am uncomfortable with the notion that the “local situation” can directly impact a sentence. As Justice Gascon points out, “the frequency of a crime in a given region does not help paint a portrait of the accused, but instead reflects external factors.” The contradiction in using the sentencing process to “set an example” is that the convicted individual becomes a scapegoat for others, being singled out when others have escaped consequences. Furthermore, the idea that imposing harsher sentences will lead to deterrence of the crime is neither self-evident, nor has it been empirically proven.

In a more basic sense, it seems fundamentally unfair that someone who is caught committing an offence in an area that is somehow “linked” in a judge’s mind with a high frequency of that type of crime can receive a heavier sentence—for this reason alone—than someone who is caught in an area associated with lower crime rates. Often, higher crime rates in a neighbourhood are caused by systematic, underlying socio-economic problems. In other circumstances, a neighbourhood may have a particularly high crime rate simply because of the density of people there: it’s hard to compare the frequency of certain offense in a downtown core to those occurring in a rural community. Pulling up a map of reported neighbourhood crime rates in Toronto exemplifies these two points. My overall concern is that Lacasse condones targeting specific areas or neighbourhoods as “hot-beds” of specific crimes and sentencing accordingly. But imposing harsher sentences on this basis is simply arbitrary. It has nothing to do with the convicted individual and what she or he did, it is a factor completely beyond his or her control, and worst of all, it runs the risk of judges discriminating against certain neighbourhoods with higher crime rates without taking into account why those neighbourhoods have higher crime rates.

The degree of censure required to express society’s condemnation of an offence is internally limited by the principle that an offender’s sentence must be equivalent to his or her moral culpability. External factors are independent of the accused’s culpability, and their use in the sentencing process can compromise the core guiding light of the sentencing process: proportionality.