2014 NBCA 35, 2014 NBCA 35

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 141-13-CA ROBERT EDISON MACFARLANE APPELLANT ROBERT EDISON MACFARLANE APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE MacFarlane v. R., 2014 NBCA 35 MacFarlane c.

R., 2014 NBCA 35 CORAM: The Honourable Justice Deschênes The Honourable Justice Richard The Honourable Justice Green CORAM : l’honorable jug e Deschênes l’honorable juge Richard l’honorable juge Green Appeal from a decision of the Provincial Court: April 23, 2013 (conviction) November 22, 2013 (sentence) Appel d’une décision de la Cour provinciale : le 23 avril 2013 (déclaration de culpabilité) le 22 novembre 2013 (prononcé de la sentence) History of case: Decision under appeal: unreported Preliminary or incidental proceedings: N.A.

Historique de la cause : Décision frappée d’appel : inédite Procédures préliminaires ou accessoires : s.o. Appeal heard: May 29, 2014 Appel entendu : le 29 mai 2014

Judgment rendered: May 29, 2014 Reasons for judgment by: The Honourable Justice Richard Concurred in by: The Honourable Justice Deschênes The Honourable Justice Green Jugement rendu : le 29 mai 2014 Motifs de jugement : l’honorable juge Richard Souscrivent aux motifs : l’honorable juge Deschênes l’honorable juge Green Counsel at hearing: For the appellant: No one appeared For the respondent: Kathryn A. Gregory THE COURT The appeal against conviction is dismissed.

The application for leave to appeal the sentence is allowed, but the sentence appeal is adjourned for a sentencing hearing to be held in the Court of Appeal on June 24, 2014, at 10:00 AM, following which the Court will impose the punishment it considers fit in the circumstances. Meanwhile, the sentence imposed in the Provincial Court remains in effect. Avocats à l’audience : Pour l’appelant : Personne n’a comparu Pour l’intimée : Kathryn A. Gregory LA COUR L’appel de la déclaration de culpabilité est rejeté.

La demande d’autorisation d’appel de la sentence est accueillie, mais l’appel de la peine est différé dans l’attente de la tenue d’une audience de détermination de la peine, prévue devant la Cour d’appel le 24 juin 2014, à 10 h, à l’issue de laquelle celle-ci infligera la peine qu’elle estime juste dans les circonstances. Dans l’intervalle, la peine infligée par la Cour provinciale reste en vigueur. The following is the judgment delivered by RICHARD, J.A. (Orally) I.

Introduction [ 1 ] Robert Edison MacFarlane appeals his conviction on charges of assault and mischief, the indictable offences respectively set out in ss. 266 (

a) and 430(4) (

a) of the Criminal Code , R.S.C., 1985, c. C-46 . He also seeks leave to appeal his sentence. He argues he was the victim of an abuse of process; that he should have been allowed to withdraw his guilty pleas before sentence was passed; and that the sentencing judge erred in not holding a sentencing hearing. Only the third of these contentions

has any merit. For this reason, the application for leave to appeal the sentence is granted. [ 2 ] In my view, the appeal against conviction has no merit and must be dismissed. However, I find merit to the sentence appeal since the sentencing judge did not comply with certain mandatory provisions of the Criminal Code . It therefore falls upon this Court to impose the punishment it considers fit in the circumstances, something the Court cannot do without first holding the hearing that ought to have been held in the Provincial Court.

As a result, I would adjourn the sentence appeal to a date when the Court will hear the evidence the parties should have been allowed to present before the sentence was passed. II. Background [ 3 ] Charged with assault and mischief, Mr. MacFarlane elected to be tried in Provincial Court and initially pled not guilty. On the date set for trial, he advised the Court of his wish to change his plea. The judge substantially complied with the provisions of s. 606(1.1) of the Criminal Code and accepted pleas of guilty to both offences.

Sentencing was adjourned pending the preparation of a pre-sentence report and the presentation of a victim impact statement should the victim choose to prepare one. [ 4 ] The matter resumed for sentencing before a different judge of the Provincial Court, so the pleas were withdrawn and re-entered. Again, Mr. MacFarlane pled guilty to both offences. The second judge complied with the provisions of s. 606(1.1) before accepting the plea. In particular, the judge confirmed that Mr.

MacFarlane understood that the judge was not bound by any joint recommendation regarding the sentence. [ 5 ] Once the pleas were accepted, prosecution counsel outlined the circumstances of the offence.

She asked the judge to consider a sentence of incarceration in the range of 16 to 18 months for the assault and a short period of incarceration for mischief, together with a probation order. [ 6 ] At this point, it came to the attention of counsel for the prosecution, who was not counsel when the pleas were originally changed from not guilty to guilty, that the pleas had been changed as part of a plea agreement pursuant to which there was to be a joint recommendation for a sentence of incarceration of two to three months. Prosecution counsel advised the judge she considered herself bound to honour the agreement.

The Provincial Court judge expressed dismay because the circumstances of the assault, as described in the prosecutor’s account, were particularly brutal, and Mr. MacFarlane’s criminal record was not insignificant. [ 7 ] After a short adjournment, defence counsel advised the judge that Mr. MacFarlane now wished to change his pleas to not guilty. The judge refused the request on the ground the pleas had been made voluntarily and had been accepted after compliance with s. 606(1.1) of the Criminal Code . [ 8 ] At this stage, Mr.

MacFarlane himself advised the judge he was disputing some of the facts prosecution counsel had related to the Court. The matter was therefore adjourned for a sentencing hearing. [ 9 ] When the matter resumed, on November 22, 2013, Mr. MacFarlane applied for a stay of proceedings on grounds of abuse of process.

He argued the conduct of prosecution counsel, in having recommended a sentence of incarceration for a period that exceeded what he had bargained for in the plea agreement, caused him irreparable prejudice. [ 10 ] In response, prosecution counsel again acknowledged there was a plea agreement pursuant to which a sentence in the range of three months would be jointly recommended and confirmed she would respect the agreement and seek a sentence in that range together with a probation order. [ 11 ] In reply, Mr.

MacFarlane argued the prosecution’s earlier request for a sentence in the range of 16 to 18 months could still influence the judge and maintained he was prejudiced as a result of the prosecution’s conduct. The sentencing judge agreed Mr. MacFarlane made a valid point, but evidently disagreed with his contention that the situation constituted an abuse of process. Mr. MacFarlane again sought to withdraw his guilty pleas, but the judge again refused on the grounds the issue had already been determined.

[ 12 ] The judge then proceeded with sentencing. In doing so, the judge referred to “the facts as related to me by” prosecution counsel and “the acceptance of those facts by the accused.” Mr. MacFarlane immediately reminded the judge he had not accepted the facts and that he wanted “to testify” as to “his side of the story.” The sentencing judge noted that the pre- sentence report indicated that Mr. MacFarlane accepted full responsibility for the offences.

He then proceeded to pass the following sentence: 1) on the assault charge : three months in jail followed by supervised probation for 18 months with conditions including that he have no contact with the victim and pay restitution; 2) on the mischief charge : one month in jail to be served concurrently. III. Issues [ 13 ] Mr. MacFarlane appeals his conviction and seeks leave to appeal the sentence.

His Notice of Appeal lists numerous grounds, but they can be condensed as follows: 1) Did the sentencing judge err in not staying the proceedings on grounds of abuse of process? 2) Did the sentencing judge err in not allowing Mr. MacFarlane to withdraw his guilty pleas? 3) Did the sentencing judge err in passing sentencing without a sentencing hearing? [ 14 ] One of Mr. MacFarlane’s grounds of appeal alleges improper prosecutorial conduct that was intended to intimidate him. Specifically, Mr. MacFarlane alleges that prosecution counsel tried to persuade him not to go ahead with the sentencing hearing.

However, nothing of the sort is apparent on the record, and Mr. MacFarlane has not provided any factual support for this allegation. This ground of appeal must therefore be summarily dismissed. IV. Analysis [ 15 ] In my respectful view, the first two issues raised in this appeal must be answered in the negative, but the third requires an affirmative response. A. Stay of proceedings for abuse of process [ 16 ] There is simply no state conduct in the present case that constitutes an abuse of process.

The fact prosecution counsel was not aware of a plea agreement negotiated by her predecessor on the file is a human error. The critical factor is prosecution counsel’s reaction upon becoming aware of this omission. In this case, she immediately acknowledged the error and agreed to respect the plea agreement. In doing so, prosecution counsel acted honourably and her conduct therefore cannot be said to have impacted Mr. MacFarlane’s fair trial interests or undermined the integrity of the judicial process. In my respectful view, any assertion to the contrary is frivolous.

In the circumstances, there was no risk the sentencing judge would be improperly influenced by the earlier representations that had then been withdrawn. The protection against this lies in the standard that has been set out for the rejection of joint sentence recommendations: R. v. Steeves , 2010 NBCA 57 , 360 N.B.R. (2d) 88 , per Drapeau C.J.N.B., at paras. 30-32. For these reasons, I would dismiss this ground of appeal. B.

Withdrawal of the guilty pleas [ 17 ] There are numerous decisions of this Court on the test to be applied in deciding whether an accused should be allowed to withdraw a guilty plea, one of the most recent of which is R. v. McLaughlin , 2013 NBCA 28 , 403 N.B.R. (2d) 358 , where it is stated as follows:

There is a strong presumption a guilty plea, particularly one made with the assistance of counsel, is valid ( R. v. Laffin , 2009 NSCA 19 , [2009] N.S.J. No. 66 (QL) at 44 ; R. v. Eizenga , 2011 ONCA 113 , [2011] O.J. No. 524 (QL) at para. 4 ). Furthermore, because the withdrawal of a guilty plea raises a question of mixed law and fact, leave is required pursuant to s. 675(1)( a )(ii) of the Code . This Court recently canvassed the jurisprudence with respect to the withdrawal of a guilty plea in such cases as R. v. Miller , 2011 NBCA 52 , 374 N.B.R. (2d) 302 ; R. v.

Tower , 2010 NBCA 27 , 358 N.B.R. (2d) 190 ; R. v. Monteith , 2010 NBCA 77 , [2010] N.B.J. No. 346 (QL) , leave to appeal refused [2010] S.C.C.A. No. 439 (QL), and R. v. Edgett , 2008 NBCA 65 , 336 N.B.R. (2d) 321 . Essentially, Mr. McLaughlin must be able to demonstrate that: (

i) He was unaware of the allegations made against him in the charge; (ii) He was unaware of the effect and potential consequences of his plea; (iii) The plea was not made voluntarily; (iv) The plea was equivocal in nature. [paras. 9-10] [ 18 ] Mr. MacFarlane did not meet any of these prerequisites. Both the initial change of plea and the re-entering of the guilty pleas were made with the assistance of counsel. In addition, there was compliance with s. 606(1.1) of the Criminal Code , which requires the judge to be satisfied of the following before a guilty plea can be accepted: (

a) the plea was made voluntarily; (

b) the accused understands: (1) the plea is an admission of the essential elements of the offence; (2) the nature and consequences of the plea; and, (3) the court is not bound by any agreement made between the accused and the prosecutor. [ 19 ] Nothing in the record suggests Mr. MacFarlane’s plea was not made voluntarily or that he did not understand any of the elements listed in s. 606(1.1) , and Mr. MacFarlane has not sought to adduce any evidence to rebut the presumption that the plea was valid. As a result, the judge did not err in refusing to allow him to change his plea. C.

Refusal of a sentencing hearing [ 20 ] It is elementary that before determining a sentence, a court must follow certain procedural imperatives, including those set out in ss. 723 and 724 of the Criminal Code that provide as follows: 723.

(1) Before determining the sentence, a court shall give the prosecutor and the offender an opportunity to make submissions with respect to any facts relevant to the sentence to be imposed.

(2) The court shall hear any relevant evidence presented by the prosecutor or the offender.

(3) The court may, on its own motion, after hearing argument from the prosecutor and the offender, require the production of evidence 723.

(1) Avant de déterminer la peine, le tribunal donne aux parties — le délinquant ou son avocat, selon le cas, et le poursuivant — la possibilité de lui présenter des observations sur tous faits pertinents liés à la détermination de la peine.

(2) Le tribunal prend connaissance des éléments de preuve pertinents que lui présentent les parties.

(3) Le tribunal peut exiger d’office, après avoir entendu le poursuivant et le délinquant, la présentation des éléments de preuve qui pourront l’aider à déterminer la peine.

that would assist it in determining the appropriate sentence.

(4) Where it is necessary in the interests of justice, the court may, after consulting the parties, compel the appearance of any person who is a compellable witness to assist the court in determining the appropriate sentence.

(5) Hearsay evidence is admissible at sentencing proceedings, but the court may, if the court considers it to be in the interests of justice, compel a person to testify where the person (

a) has personal knowledge of the matter; (

b) is reasonably available; and (

c) is a compellable witness. 724.

(1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender. […]

(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence, (

a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial; (

b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it; (

c) either party may cross-examine any witness called by the other party; (

d) subject to paragraph ( e ), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and (

e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender.

(4) Le tribunal peut exiger, dans l’intérêt de la justice et après avoir consulté les parties, la comparution de toute personne contraignable pouvant lui fournir des renseignements utiles à la détermination de la peine.

(5) Le ouï-dire est admissible mais le tribunal peut, s’il le juge dans l’intérêt de la justice, contraindre à témoigner la personne :

a) qui a eu une connaissance directe d’un fait;

b) qui est normalement disponible pour comparaître;

c) qui est contraignable. 724.

(1) Le tribunal peut, pour déterminer la peine, considérer comme prouvés les renseignements qui sont portés à sa connaissance lors du procès ou dans le cadre des procédures de détermination de la peine et les faits sur lesquels le poursuivant et le délinquant s’entendent. […]

(3) Les règles suivantes s’appliquent lorsqu’un fait pertinent est contesté :

a) sauf s’il est convaincu que des éléments de preuve suffisants ont été présentés lors du procès, le tribunal exige que le fait soit établi en preuve;

b) la

partie qui a l’intention de se fonder sur le fait pertinent, notamment si celui-ci figure au rapport présentenciel, a la charge de l’établir en preuve;

c) chaque

partie est autorisée à contre- interroger les témoins convoqués par l’autre partie;

d) sous réserve de l’alinéa e ), le tribunal doit être convaincu, par une preuve prépondérante, de l’existence du fait contesté sur lequel il se fonde pour déterminer la peine;

e) le poursuivant est tenu de prouver hors de tout doute raisonnable tout fait aggravant ou toute condamnation antérieure du délinquant.

[ 21 ] In the present case, when the matter first came up for sentencing, prosecution counsel described the circumstances of the offence for which Mr. MacFarlane was charged in the following terms: CROWN: Your Honour, with regards to the two count information that brings Mr. MacFarlane before the Court, on the 13th of May of 2012 at 2:09 in the morning, a neighbour of the victims, Ms. Christina – a neighbour of Ms. Christina Johnston’s called 911 to report that Ms. Johnston had been assaulted by Mr. MacFarlane. The caller told dispatch that Mr. MacFarlane had thrown Ms.

Johnston down the stairs and was assaulting her all night, and at the time of the assault, there was an 11 month old child in the home. The police arrived to find Ms. Johnston wearing a white top that had blood on it. She had a swollen lump on her head above her right eye and her lips were a bit swollen. She had blood on her arms and her legs. There was blood on the walls and there was blood on the floor. There was a hole near the kitchen, a damaged oven door, a damaged bathroom door, and it was noted that the phone car – cord was pulled out of the phone jack.

There were two clumps of hair that mass – matched Johnston’s hair colour that were on the floor in the kitchen and the entry door to the residence was damaged as well as the lock set. Ms. Johnston told the police that Mr. MacFarlane had assaulted her and did the damage to the house. She also told the police this was not the first time. She also told the police that she did not wish to provide a statement at the RCMP detachment, but told the police what happened while waiting for medical attention and while she was at the hospital. She said earlier that day she had broken up with Mr.

MacFarlane, and he had come back to her, her house around midnight, kicked the door in and came in swinging. She said she was scared and she punched Mr. MacFarlane. She went to grab the phone, but that’s when he pulled it out of the wall and ripped it – excuse me – destroyed the phone, ripping it out of the wall.

He kicked in the bathroom door, pushed her face onto the toilet seat, kicked her in the head with steel toed boots, grabbed her by the hair and hit her head on the oven door, breaking the glass on the oven door, and glass on an oven door to withstand the heat that often the temperatures are in the oven is tempered glass and is very hard, I suggest respectively, to break. He then pulled her hair out and kicked her in the arm and, and her buttocks and the middle of her back. Once he was arrested, he was given an opportunity to provide a statement and he declined.

And the damage which is the home owned by the New Brunswick Housing Corporation is $1,636.40. [Sentencing transcript; September 3; page 3, line 2 to page 5, line 4] [ 22 ] After much discussion, including the dismissal of Mr. MacFarlane’s request to withdraw his guilty plea, the judge learned Mr. MacFarlane disagreed with the facts that had been related to the Court.

As a result, a sentencing hearing was scheduled. [ 23 ] When the matter resumed on November 22, 2013, prosecution counsel advised the judge she had learned the joint recommendation was the result of a genuine plea agreement because of certain evidentiary concerns. Prosecution counsel reiterated she was recommending a three month term of incarceration. It is at this point Mr. MacFarlane sought a stay of proceedings for abuse of process, which the judge rightly rejected. [ 24 ] After rejecting the application for a stay of proceedings, the sentencing judge immediately proceeded to pass sentence.

The judge did not proceed to the sentencing hearing that had been the sole purpose of the earlier adjournment. The judge made reference to the facts related by prosecution counsel and erroneously stated that Mr. MacFarlane had accepted these. At this point, Mr. MacFarlane interrupted the judge to remind him he had not agreed to the facts and wanted to testify to tell his “own side of the story.” The judge refused him that request and imposed the sentence. [ 25 ] Clearly, the sentencing judge erred in law in several respects. First , the judge did not provide Mr.

MacFarlane an opportunity to make submissions with respect to relevant facts; second , the judge did not hear any relevant evidence Mr. MacFarlane wanted to present; and, third , the judge did not require evidence to resolve the factual dispute, including giving Mr. MacFarlane the opportunity to cross-examine any witness called by the prosecution.

These errors respectively constitute violations of ss. 723(1) , 723(2) and 724(3) of the Criminal Code and strike at the core of fundamental fairness in the sentencing process. [ 26 ] In Steeves , Drapeau C.J.N.B. discussed the jurisdiction of appellate courts on sentence reviews.

He stated as follows: The jurisdiction of appellate courts on sentence reviews is delineated in s. 687(1) of the Criminal Code , which states: 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. Thus, Parliament's instruction to appellate courts is, at least from a textual standpoint, relatively straightforward: it is the fitness of theimpugned sentence that stands to be considered. Numerous pronouncements emanating from the Supreme Court of Canada make plainthat the concept of "fitness" is not limited to an assessment of quantum. Indeed, courts of appeal may be required to consider whether the sentence imposed is lawful.

The most obvious illustration of unfitnessas a matter of law involves the sentencing judge's failure to comply with prescribed minimum or maximum punishments (see R. v. Wust,[2000] 1 S.C.R. 455, [2000] S.C.J. No. 19 (QL), 2000 SCC 18; R. v. Fice, [2005] 1 S.C.R. 742, [2005] S.C.J. No. 30 (QL), 2005 SCC32; and R. v. LeBlanc (D.) (2005), 279 N.B.R. (2d) 121, [2005] N.B.J. No. 21 (QL), 2005 NBCA 6). For other examples of sentenceappeals that turned on points of law, see R. v. Middleton, [2009] 1 S.C.R. 674, [2009] S.C.J. No. 21 (QL), 2009 SCC 21, R. v. Sinclair(1972), (ON CA), 6 C.C.C. (2d) 523, [1972] O.J.

No. 345 (QL) (C.A.), R. v. Robillard (1985), (QC CA), 22 C.C.C. (3d) 505, [1985] J.Q. no 353 (QL) (C.A.), R. v. Amaralik (1984), (NWT CA), 16 C.C.C. (3d) 22,[1984] N.W.T.J. No. 42 (QL) (C.A.) and R. v. Drost (1996), (NB CA), 172 N.B.R. (2d) 67 (C.A.), [1996] N.B.J. No.23 (QL). Of course, no deference is owed to the sentencing court's quantum selection when it is challenged on a point of law. Appellate courts may also be called upon to determine whether the contested sentence reflects a proper application of the principles ofsentencing. Most of those principles are now codified in

Part XXIII of the Criminal Code. It is axiomatic that, while great deference isowed to the sentencing judge's weighting of the relevant factors, correctness is the standard by which his or her understanding of thegoverning principles is reviewed on appeal. Finally, courts of appeal may engage in a consideration of the quantum itself. Here, once again, great deference is owed to the sentencingjudge's judgment-call.

The sentence under consideration will be at risk of variation if, and only if, it is a substantial and marked departurefrom the sentence customarily imposed for similarly situated offenders committing similar crimes. In sum, a court of appeal is not at liberty to substitute its view of fitness for that of the sentencing judge unless the sentence imposed isthe product of either an error of law or an error in principle, or unless it is clearly unreasonable (see R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52 (QL), at paras. 46-48; R. v. Solowan, [2008] 3 S.C.R. 309, [2008] S.C.J.

No. 55 (QL),2008 SCC 62, at para. 16; R. v. L.M., [2008] 2 S.C.R. 163, [2008] S.C.J. No. 31 (QL), 2008 SCC 31, at paras. 14-15; and R. v. C.A.C.(2009), 349 N.B.R. (2d) 265, [2009] N.B.J. No. 342 (QL), 2009 NBCA 68 (Bell, J.A. for the Court, at para. 4)). If the sentence at issueis the result of reversible error, the court of appeal bears the burden of prescribing the punishment that it considers fit in thecircumstances. [paras. 20-25] [27] In the present case, the sentence imposed is the result of both an error of law and an error in theapplication of the governing sentencing principles.

The error of law is found in the sentencing judge’s failure to comply with mandatoryrequirements set out in ss. 723 and 724, whereas the error in principle lies in the judge’s inability to properly apply the governingprinciples without having first determined the facts upon which the sentence was to be crafted.

Where the sentence is the product of anerror of law and an error in principle of this type, it is open to appellate review without any deference being owed to the sentencingjudge’s determination. [28] In sum, the principles derived from Steeves that apply to this case are the following: 1) The sentence in this case was the product of an error of law and an error in principle and is therefore open for appellate review; 2) The errors are such that no deference is owed to the sentencing judge’s determination; 3) Since the sentence is the result of a reversible error, it falls upon the Court of Appeal to impose the punishment it considers fit in thecircumstances. [29] Of course, this Court cannot proceed with the imposition of sentence without first ensuringcompliance with ss. 723 and 724.

Since this Court has no power in a sentence appeal to return the matter to the sentencing judge, this is

one of those rare cases where the Court itself will be required to hold the sentencing hearing that should have taken place in the Provincial Court. The power for us to do this is found in s. 683(1) of the Criminal Code , which reads in part as follows: 683.

(1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice: (

a) order the production of any writing, exhibit or other thing connected with the proceedings; (

b) order any witness who would have been a compellable witness at the trial, whether or not he was called at the trial, (

i) to attend and be examined before the court of appeal, or (ii) to be examined in the manner provided by rules of court before a judge of the court of appeal, or before any officer of the court of appeal or justice of the peace or other person appointed by the court of appeal for the purpose; (

c) admit, as evidence, an examination that is taken under subparagraph ( b )(ii); (

d) receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness; 683.

(1) Aux fins d’un appel prévu par la présente partie, la cour d’appel peut, lorsqu’elle l’estime dans l’intérêt de la justice :

a) ordonner la production de tout écrit, pièce ou autre chose se rattachant aux procédures;

b) ordonner qu’un témoin qui aurait été un témoin contraignable lors du procès, qu’il ait été appelé ou non au procès : (

i) ou bien comparaisse et soit interrogé devant la cour d’appel, (ii) ou bien soit interrogé de la manière prévue par les règles de cour devant un juge de la cour d’appel, ou devant tout fonctionnaire de la cour d’appel ou un juge de paix ou autre personne nommée à cette fin par la cour d’appel;

c) admettre, comme preuve, un interrogatoire recueilli aux termes du sous-alinéa b )(ii);

d) recevoir la déposition, si elle a été offerte, de tout témoin, y compris l’appelant, qui est habile à témoigner mais non contraignable; [ 30 ] In my view, the interests of justice require us to adjourn the sentence appeal and

schedule a sentencing hearing following which this Court will dispose of this matter as it considers fit in the circumstances. The sentencing hearing should proceed in accordance with the provisions of ss. 723 and 724 and include the following features: 1) Where the facts have been disputed, the prosecutor will be required to adduce evidence of the circumstances of the offences, keeping in mind that by his guilty plea Mr. MacFarlane has admitted their essential ingredients; 2) Mr. MacFarlane will be entitled to cross-examine any witness called by the prosecution; 3) Mr.

MacFarlane will then be entitled to present any evidence in support of his version of the facts; 4) The prosecutor will be entitled to cross-examine any witness called by Mr. MacFarlane, including Mr. MacFarlane himself, should he choose to testify; 5) Hearsay evidence is admissible at this proceeding unless the Court indicates otherwise; 6) On the basis of the evidence adduced at the sentencing hearing, this Court will determine the factual basis upon which the sentence should be determined in accordance with the onus and standards of proof set out in s. 724(3) of the Criminal Code ;

7) This Court will then impose the sentence it considers fit in the circumstances, considering any aggravating and mitigating circumstances and applying the principles that govern the determination of a just sentence; 8) In doing so, this Court will have due regard to the joint recommendation that was the result of a genuine plea agreement, but, like the Provincial Court, this Court is not bound by the plea agreement.

Of course the standard for rejecting the joint sentence recommendation articulated in Steeves would govern; 9) At the end of this process, the sentence appeal will be dismissed if this Court finds that, notwithstanding the errors of law and of principle, the sentence imposed in the Provincial Court corresponds with that which this Court considers appropriate. On the other hand, if this Court finds otherwise, the Court will vary the sentence and impose the punishment it considers fit in the circumstances. IV. Disposition [ 31 ] For these reasons, I would dismiss the appeal against conviction.

I would adjourn the hearing of the sentence appeal to June 24, 2014, at 10:00 AM in the Court of Appeal.

Unless the sentence appeal is in the meantime abandoned, the Court will, on that date, hold a sentencing hearing in accordance with ss. 723 and 724 of the Criminal Code and proceed as outlined above. [ 32 ] Of course, until the sentence appeal is decided the sentence imposed in the Provincial Court remains in effect. [ 33 ] Considering the interim nature of the disposition regarding the sentencing appeal and the time frame involved, this decision should be issued first in the English language with the French version to follow. ________________________ J.C. MARC RICHARD, J.A.

WE CONCUR: ________________________________ ALEXANDRE DESCHÊNES, J.A. ________________________________ BRADLEY V. GREEN, J.A.