R. v. Maroti, 2018 QCCA 747

Bain c. R. 2018 QCCA 747 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OFMONTREAL No: 500-10-006323-164, 500-10-006325-169 (500-01-078085-120) DATE: May 9, 2018 IN THE PRESENCE OF THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. RICHARD HENRY BAIN APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [1] The Crown presents a motion whereby it requests that the appeal be heard on the merits by a five-member panel.

It says such apanel is needed because it will be asking the Court, albeit as a subsidiary submission, to review three of its own precedents. [2] Without discussing the full merit of the Crown’s argument, I acknowledge that the case law does suggest that, as a matter ofprinciple, where an appellate court is called upon to overrule earlier decisions, the constitution of a five-member panel is warranted.

Mycolleague Justice Vauclair has written: “Une cour d’appel qui veut réviser une de ses décisions le fera avec une formation de cinqjuges.”[1] [3] Because this appeal is on the sentence, it bears mentioning at the outset that in sentencing matters, the rule of stare decisis isless strictly applied given “the specialized discretion that Parliament has explicitly vested in sentencing judges.”[2] Prior decisionsmerely act as useful guides. [4] As the Court of Appeal of Manitoba writes in R. v.

Maroti:[3] The principle of stare decisis is, of course, alive and well in Manitoba and does form part of a proper sentencing analysis (and is in factexplicitly referred to in s. 718.2(

b) of the Code). However, its application must be tempered by the very nature of the task. Theauthorities are replete with statements that sentencing is an inherently, discretionary, individual, fact-based endeavour. See, forexample, R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500 at para. 92, and R. v. F.C.G.(1997), (MBCA), 118 Man.R. (2d) 132 at para. 9 (C.A.). While other cases are of assistance to establish a range of sentences ordinarily imposed on similar offenders for similar offences, ss.718 to 718.2 of the Code set out a group of principles that must be considered whenever a sentence is imposed.

This analysis ismandatory and cannot be replaced by the mechanical application of stare decisis. General observations can be made in relation tooffences that share certain common characteristics, but sentencing is still fundamentally an individual exercise. [5] Indeed, the Supreme Court of Canada, in R. v.

Lacasse, stated that “the choice of sentencing range or of a category within arange falls within the trial judge’s discretion and cannot in itself constitute a reviewable error.”[4] [6] A three-member panel of the Court recently proposed an update of the sentencing range in cases involving the distribution ofchild pornography, without anyone suggesting that a five-member panel was required to do so, in order to reflect increases introduced byParliament to the minimum and maximum sentences[5] applicable to the infraction of concern. [7] In this instance, however, it seems that the matter raised by the Crown’s projected secondary submission could be of a differentnature.

Precaution thus compels me to grant the motion. The panel that will hear the appeal on its merit should be afforded great latitudeas to insure that all relevant issues are properly addressed. It would not do to restrict that latitude because the panel felt reversal ofprecedents properly belonged before a five-member panel. [8] FOR THESE REASONS, THE UNDERSIGNED: [9] GRANTS the Motion for a five-member panel hearing the appeal on its merits.

NICOLE DUVAL HESLER, C.J.Q. Mtre Alan Guttman Guttman & Marier For appellant Mtre Dennis Galiatsatos Director of criminal and penal prosecutions For respondent Date of hearing: May 3, 2018