R. v. Kunicki, 2014 MBCA 22

Citation: R. v. Kunicki, 2014 MBCA 22 Date: 20140213 Docket: AR 13-30-07941 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Alan D. MacInnes Madam Justice Diana M. Cameron BETWEEN : HER MAJESTY THE QUEEN ) S. C. Cawley ) for the Appellant ) Appellant ) E. A.

Wach ) for the Respondent - and - ) ) JASON JOHN KUNICKI ) Appeal heard: ) November 15, 2013 ) (Accused) Respondent ) Judgment delivered: ) February 13, 2014 CAMERON J.A. [ 1 ] This is a Crown motion for leave to appeal and, if leave is granted, appeal of a conditional sentence of two years less a day imposed on the accused for one count of possession of cocaine for the purpose of trafficking. In support of its appeal, the Crown has also filed a motion for fresh evidence. For the following reasons, I would grant leave to appeal, admit the fresh evidence and allow the sentence appeal.

Background and Proceedings [ 2 ] In September 2009, the accused was arrested by the Winnipeg Police Service in possession of seven bags of cocaine weighing approximately 23 grams each and one piece of crack cocaine weighing 11.46 grams, the overall amount totalling 6.136 ounces. [ 3 ] In February 2013, the accused entered a guilty plea to a charge of possession for the purpose of trafficking. At the sentencing hearing, the Crown asked that the accused be sentenced to five years’ incarceration.

In support of its position, the Crown called an expert witness who testified that, in his opinion, the accused was a mid-level trafficker. [ 4 ] The accused asked for a conditional sentence of two years less a day. Through submissions of counsel, he disputed that he was a mid-level trafficker. Rather, he said that all of the cocaine seized belonged to him and that he was a significant addict who used the cocaine, but would also “chip off and sell a bit” to support his addiction.

While his counsel did not specifically state that the accused was a street-level trafficker, she said that he was “not even a mid-level courier.” [ 5 ] The accused said that his friend (the friend) allowed the accused to live with him following his arrest and had given the accused employment on the condition that the accused remain drug free, which the accused said he had managed to do. The accused provided the court with letters of support from the friend and the friend’s common-law wife.

The letter from the friend’s common-law wife indicated that the accused had lived with them for “the past 3 years.” The accused also filed a report from Dr. Somers indicating that, if the accused abstained from the use of drugs, he was at a lower risk to reoffend. [ 6 ] The sentencing judge observed that it was for the Crown to prove beyond a reasonable doubt that the accused was a mid-level trafficker.

He found it noteworthy that, at the time of his arrest, there was no other evidence found that put the accused in possession of any trafficking-related paraphernalia or money, and that there was no evidence that the accused ever trafficked at the ounce level. While he agreed that the amount of cocaine found on the accused was significant, he accepted the accused’s explanation that he was a “heavily addicted user and sold cocaine at the street level to fund his habit.”

[ 7 ] After finding that the accused was a street-level trafficker, the sentencing judge listed what, in his view, were the aggravating factors and, next, stated: The mitigating factors are: there was no question of when the accused was picked up in September of 2009 he was a youthful offender, only 23 years of age. At the point in time when he was arrested he had never been incarcerated before nor has he been incarcerated pursuant to a sentence of any court [to date]. He entered a guilty plea.

Since this incident in 2009 he has moved in with his employer , he indicates and it’s supported by his employer that he holds down permanent employment and he has overcome his addiction. Since September of 2009 I have no evidence before me that he has become re-involved in any criminal offence while on judicial interim release , no allegation that he has an affiliation to a gang and despite its shortcomings, as pointed out by the Crown, the report of Dr. Somers assesses [the accused] at a low risk to reoffend so long as he abstains from the use of drugs.

I am satisfied that [the accused] has taken major steps in turning his life around and I am satisfied that he himself does not pose a danger to the safety of the community. I am also satisfied that the principles of sentencing can be addressed by a conditional sentence. He has entered a guilty plea; he has taken major steps to rehabilitate himself and to obtain employment. I do not wish to set back his rehabilitation by a sentence of real jail.

He’s an excellent prospect for rehabilitation. [emphasis added] Issues Sentence Appeal [ 8 ] While the Crown lists four grounds of appeal, it is essentially arguing two points. First, that the sentencing judge erred in finding that the accused was a street-level trafficker.

Second, that the sentencing judge failed to give sufficient regard to the principles of denunciation and deterrence, thereby leading him to impose an unfit sentence. [ 9 ] Aside from the above two issues, the Crown also argued that the sentencing judge improperly reversed his analysis of whether the accused was eligible for a conditional sentence as outlined in R. v. Proulx , 2000 SCC 5 , [2000] 1 S.C.R. 61 , in that he did not first determine the length of sentence that was appropriate before he considered whether it could be served in the community.

However, a contextual reading of the sentencing judge’s decision shows that he was alive to the issues outlined in Proulx and aware that the offence was one which often draws a penitentiary term. While he did not apply Proulx in a formulaic manner, he did not err in his consideration of the appropriate sentence. Therefore, this ground of appeal can be dismissed without further comment. Fresh Evidence Motion [ 10 ] In addition to its application for leave to appeal and sentence appeal, the Crown also filed a motion for fresh evidence. Essentially, the motion is twofold.

First, it is based on the fact that the accused was charged with a drug-related offence between the time he was charged with the offence that is the subject of this appeal, and the time he was sentenced for it (the intervening charge). The motion is for this court to admit the intervening charge and the circumstances surrounding it as evidence on the appeal. Second, the Crown discovered, after the sentencing, that the friend has a criminal record and that he was on probation at the time the accused was sentenced.

Thus, the Crown applies to have that evidence considered by this court. [ 11 ] In support of its motion, the Crown filed both an unsealed affidavit containing minimal facts sufficient to explain the motion, and a sealed, detailed affidavit. At the hearing, counsel agreed that the court could consider the substance of the sealed information in the determination of the motion. Therefore, prior to hearing argument, the court reviewed the proposed fresh evidence. The decision respecting the motion was reserved and the court continued to hear the motion for leave to appeal and sentence appeal on their merits.

Sentence Appeal Position of the Crown [ 12 ] Consistent with its original position, the Crown submits that the accused should be sentenced to five years of incarceration. The Crown maintains that the accused was a mid-level trafficker, thereby falling within a sentencing range of five to eight years’ incarceration, as set out by this court in R. v. Rocha (S.) , 2009 MBCA 26 at para. 64 , 236 Man.R. (2d) 213 .

The Crown asserts that the expert evidence it presented was such that it “cried out for an explanation.” Correspondingly, the Crown contends that, if the accused wished to dispute the Crown’s evidence, he was obliged to present evidence that would lead to the conclusion that he was not a mid-level trafficker. [ 13 ] Finally, the Crown asserts that denunciation and deterrence are the paramount considerations in sentencing drug traffickers and that the sentencing judge placed too much weight on the accused’s efforts at rehabilitation, thereby resulting in an unfit sentence.

Position of the Accused [14] The accused argues that when all of the evidence is viewed in the context of the sentencing hearing, it supports thesentencing judge’s finding that the accused was trafficking at the street level and that this finding is entitled to deference. [15] He also notes that the Crown was relying on circumstantial evidence to prove that he was a mid-level trafficker. Whilehe agrees that there can be circumstances where the evidence is so overwhelming that it cries out for an explanation, he says that this isnot such a situation.

Further, he asserts that he provided an explanation through the submissions of his counsel, the evidence of theCrown expert and the report of Dr. Somers. While he agrees that much of the explanation consisted of hearsay, he maintains that, in asentencing hearing, the court is entitled to rely on hearsay evidence to make findings of fact, even if the facts are disputed.

Thus, heasserts that the sentencing judge made no error in this regard. [16] Finally, the accused contends that a sentence of two years less a day to be served in the community was within the rangefor a street-level trafficker, that the sentencing judge did not err in placing significant weight on the principle of rehabilitation and thesentence was therefore fit. Analysis

i) Did the sentencing judge err in finding that the accused was a street-level trafficker? [17] The finding that the accused was a street-level trafficker was a finding of fact made by the sentencing judge and is to bereviewed on the standard of palpable and overriding error. See R. v. Thomas (R.T.), 2010 MBCA 91 at para. 51, 258 Man.R. (2d) 146. [18] The contention that the accused was involved in the drug trade as a mid-level trafficker was an aggravating factor. Therefore, the Crown had the responsibility of proving it beyond a reasonable doubt. See R. v.

Ramos (Z.M.), 2007 MBCA 87 at paras.13-15, 214 Man.R. (2d) 280; R. v. Gardiner, (SCC), [1982] 2 S.C.R. 368; and s. 724(3) of the Criminal Code (theCode). The Crown relied on the expert testimony of Sgt. Atkins (Atkins), who testified that it was his opinion that the accused was amid-level trafficker, based on the following factors:

i) the amount of cocaine seized; ii) the manner in which it was packaged; iii) hisexperience that street-level traffickers were not trusted with such a large amount of cocaine; and, iv) the accused was not in possession ofany paraphernalia that would indicate that he was a street-level trafficker.

In cross-examination, Atkins agreed that it was possible for anaddict to buy cocaine at the ounce level and sell some of it to support his or her addiction, but that he had no personal knowledge of sucha situation. [19] The accused, through his counsel’s submissions, claimed that he was not a mid-level trafficker or a mid-level courier. He claimed that he sold cocaine to support his addiction. This submission was consistent with what the accused told Dr. Somers.

Inbrief, the accused was relying on hearsay to support the contention that he was a street-level trafficker. [20] The Crown contends that, because the issue of the accused’s degree of involvement in the drug trade was contested,s. 724(3) of the Code required the accused to present evidence in answer to the evidence the Crown presented. [21] Section 724(3) of the Code provides: Disputed facts 724(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 wasadduced 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 onit 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 convictionby the offender. [22] However, s. 724(3) must be read in conjunction with s. 723 of the Code, which sets out the procedure for receivingevidence at sentencing hearings. Notably, s. 723(5) provides:

Hearsay evidence 723(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 [emphasis added] [ 23 ] As is apparent, the Code specifically allows for the presentation of hearsay evidence in a sentencing hearing. In Gardiner , Dickson J., writing for the majority of the Supreme Court of Canada, considered the role of hearsay in the sentencing hearing (at p. 414): It is a commonplace that the strict rules which govern at trial do not apply at a sentencing hearing and it would be undesirable to have the formalities and technicalities characteristic of the normal adversary proceeding prevail. The hearsay rule does not govern the sentencing hearing.

Hearsay evidence may be accepted where found to be credible and trustworthy. The judge traditionally has had wide latitude as to the sources and types of evidence upon which to base his sentence. He must have the fullest possible information concerning the background of the accused if he is to fit the sentence to the offender rather than to the crime. [ 24 ] Recently, in R. v.

Nguyen , 2012 ONCA 534 (QL) , the Ontario Court of Appeal summarily dealt with the issue of the role of hearsay in sentencing proceedings where the evidence is disputed, stating (at para. 1): The trial judge is entitled to rely on hearsay to make findings of fact on sentence even if the facts are disputed : s. 723(5). Of course, the party relying on the disputed fact carries the onus: s. 724(3)(b).

We see no legal impediment to a party discharging that burden with disputed hearsay evidence, although trial judges will, quite properly, often decline to rely on hearsay evidence to prove facts in dispute. [emphasis added] [ 25 ] I disagree with the Crown’s position that, in the circumstances of this case, s. 724(3) of the Code operates to compel an accused person to produce evidence of such quality as would be admissible in a trial. To be clear, however, t his does not mean that in every case the sentencing judge is compelled to accept an accused’s explanation provided by way of submissions of counsel.

See R. v. Coss (T.A.) , 2012 MBQB 272 , 285 Man.R. (2d) 89 . The determination as to whether to accept the hearsay evidence or not, and the weight to be placed on it, is one for the sentencing judge. [ 26 ] The sentencing judge found that the accused’s degree of responsibility was that of a street-level trafficker who sold cocaine to fuel a significant drug habit. Based on the accused’s explanation, the sentencing judge had a reasonable doubt that this was, as the Crown attempted to prove, trafficking at a scale larger than individual doses.

If that had been proven, a sentence in line with that discussed in Rocha would have been appropriate given the amount of cocaine that was seized. The sentencing judge was entitled to receive the hearsay evidence of the accused’s explanation as evidence and weigh it in light of the other evidence. The sentencing judge did not err in law in doing so. The sentencing judge also did not commit a palpable and overriding error of fact in having a reasonable doubt as to the accused’s responsibility being anything more than a street-level trafficker.

In that regard, he acknowledged that the finding was a close call, as is evidenced by his statement that he was making such a finding “perhaps naively.” Nonetheless, it was a finding he was entitled to make. ii) Did the sentencing judge fail to give sufficient regard to the principles of denunciation and deterrence and, thereby, impose an unfit sentence? [ 27 ] An appellate court must show “great deference” when reviewing a sentencing decision and can only interfere when a sentence is demonstrably unfit or it has been arrived at as a result of an error of principle ( see Rocha at para. 49 ; and R. v L.M. , 2008 SCC

31 at para. 14 , [2008] 2 S.C.R. 163 ). [ 28 ] In R. v. Gilchrist (R.) , 2004 MBCA 21 , 184 Man.R. (2d) 23 , Freedman J.A. observed that sentences for street-level traffickers start at less than two and one-half years and extend beyond four years. In Manitoba, there is precedent for an accused street- level trafficker to receive a sentence of two years less a day to be served in the community ( Ramos ; R. v. Kosanouvong (L.) , 2002 MBCA 144 , 170 Man.R. (2d) 287 ). [ 29 ] The sentencing judge was well aware of the societal effects of trafficking drugs and referred to the need for denunciation and deterrence.

However, in weighing all of the factors before him, he found that the rehabilitative efforts of the accused outweighed the principles of denunciation and deterrence. In normal circumstances, his determination would be entitled to deference and would not be disturbed. However, relying on the representations of both counsel and of the accused, the sentencing judge based his decision on certain facts that proved to be inaccurate. Therefore, the determination of the appeal is dependent on the fresh evidence motion.

The Fresh Evidence Motion Background [ 30 ] As stated, the Crown’s motion is for the admission of the intervening charge, including the circumstances surrounding it, and the criminal record of the friend. [ 31 ] The sealed affidavit filed in support of the motion indicates that on March 28, 2012, the Winnipeg Police Service executed a search warrant at a residence where the accused was living with three other persons. Four ounces of marihuana were found in various locations in the residence.

In one of the bedrooms was a safe containing a variety of documents in the accused’s name, as well as a wallet containing his driver’s licence. In the wallet was $810, and loose in the safe was a further $1,965. Four cell phones were also in the safe. No marihuana was found in that bedroom. Additionally, cash, scales and score sheets were also seized from other areas of the residence. [ 32 ] The accused and the others living in the residence were initially charged with simple possession of marihuana, contrary to s. 4(1) of the Controlled Drugs and Substances Act (the CDSA ).

However, on January 31, 2013, a week prior to his sentencing on this matter, the intervening charge against the accused was upgraded to possession of marihuana for the purpose of trafficking, contrary to s. 5(2) of the CDSA , and possession of proceeds of crime, contrary to s. 354 of the Code .

Subsequent to the sentencing in this matter, one of the co-accused agreed to enter a guilty plea to simple possession of marihuana, and the charges against this accused were stayed. [ 33 ] The unsealed affidavit indicates that the Crown office in question has a practice in place whereby it would normally discover whether an accused has an outstanding charge or has been charged with a subsequent offence. However, in this instance, due to human error, that practice was not followed. Therefore, Crown counsel who had conduct of the sentencing hearing was not aware of the intervening charge.

On the other hand, the unsealed affidavit indicates that defence counsel who appeared on behalf of the accused for his sentencing, was also his counsel for the intervening charge. [ 34 ] After the hearing of the appeal, in response to questions from the court, the Crown confirmed that defence counsel who represented the accused at the sentencing hearing was unaware of the contents of the unsealed affidavit filed by the Crown. As a result, by consent, that defence counsel was permitted to file an affidavit. In that affidavit, counsel explained her reasons for not advising the court of the intervening charge.

While I do not endorse those reasons, I am satisfied that counsel did not withhold the disclosure for the purpose of misleading the sentencing judge.

Nonetheless, the effect of the failure of the Crown to provide the accused’s updated status, and of defence counsel’s judgment call, was that the sentencing judge was not aware of the circumstances of the intervening charge, including that drugs and drug paraphernalia had been found in the residence where the accused was living and that, at the time of the alleged offence, the accused was living in the City of Winnipeg, and not with the friend. [ 35 ] With respect to the criminal record of the friend, the unsealed affidavit of the Crown indicates that Crown counsel who appeared at the sentencing hearing only learned of the friend’s identity, and that he was being held out as a positive influence who had helped the accused change his life, a few minutes before the sentencing hearing was scheduled to proceed.

Therefore, Crown counsel would not have had the opportunity to check the friend’s criminal record prior to the hearing. The sealed affidavit indicates that the friend has an extensive criminal record containing a number of convictions for breaching court orders and other offences. Furthermore, at the time the accused was sentenced, the friend was on probation. [ 36 ] The accused did not file a motion or an affidavit in response to the Crown’s affidavits.

Position of the Crown [ 37 ] The Crown asks that both pieces of fresh evidence be admitted on the basis that both bear on a critical issue at sentencing, which was whether the preconditions for a conditional sentence were made out. It maintains that this evidence would have had a direct impact on the parties’ submissions concerning the rehabilitation of the offender.

While it admits that the failure to draw the intervening charge to the sentencing judge’s attention may have been the result of a lack of due diligence, it contends that the evidence should be admitted in the interests of justice because the misinformation caused the judge to mistakenly believe that the accused remained otherwise free of charges while pending on this charge.

Furthermore, the Crown argues that the intervening charge proves that the accused had not lived with the friend for the past three years, contrary to his contention at the sentencing hearing. [ 38 ] Regarding the criminal record of the friend, the Crown maintains that it could not have conducted a criminal record check on such short notice and still have proceeded with the scheduled one-half-day sentencing hearing.

It submits that, in light of the significant reliance the accused placed on his residency with the friend, and the credit he gave the friend for his rehabilitation, the existence of the friend’s criminal record could have reasonably affected the resultant sentence.

Position of the Accused [39] The accused opposes the introduction of the fresh evidence. He asserts that the Crown did not exercise due diligencewith respect to either the intervening charge, or the criminal record of the friend. He relies on R. v.

Jarvis (K.) (2006), 214 O.A.C. 189 atpara. 16, for the proposition that, when it is the Crown seeking to introduce fresh evidence on a sentence appeal, it is appropriate to payspecial attention to the due diligence requirement. [40] The accused asserts that the intervening charge is nothing more than an allegation that he could have disputed at thetime of sentencing, thereby forcing the Crown to call evidence. He argues that the proposed evidence is not reliable.

In any event, hestates that its introduction would not have affected the outcome because, regardless of the intervening charge, he maintained that heabstained from the use of cocaine, which was the underlying source of his criminal behaviour during the relevant timeframe. Finally, heasserts that the fact that he was arrested when he was not living with the friend does not show that the sentencing judge was left with thewrong impression regarding his rehabilitation while he was living with the friend. [41] Regarding the criminal record of the friend, the accused agrees that it is reliable.

Nonetheless, he denies that it wouldhave affected the outcome of the proceedings. The accused states that, regardless of the friend’s criminal record, the friend was able togive him a place to live, a job, and play an important role in his abstention from using cocaine. Analysis [42] The admission of fresh evidence for sentence appeals concerning indictable offences is governed by ss. 683 and 687 ofthe Code.

While these sections provide an appeal court with a wide discretion to admit evidence, the overriding concern is that theadmission be in “the interests of justice.” The motion for fresh evidence is also governed by the principles outlined in the SupremeCourt of Canada decisions of Palmer et al. v. The Queen, (SCC), [1980] 1 S.C.R. 759; R. v. Lévesque, 2000 SCC 47,[2000] 2 S.C.R. 487; and R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728. [43] In the recent case of R. v. Harry, 2013 MBCA 108, Hamilton J.A. noted that this court seems to be seeing more freshevidence motions.

In reviewing the procedure for fresh evidence motions, she noted (at para. 84): Appellate courts have repeatedly stated that the appeal process cannot “be used routinely to augment the trial record” through freshevidence on appeal. See R. v. McBirnie (P.S.) (1992), (ON CA), 59 O.A.C. 1 at para. 34; R. v. G.D.B., 2000 SCC 22at para. 19, [2000] 1 S.C.R. 520; and R. v. W.R.B., 2010 MBCA 116 at para. 4. For that reason, fresh-evidence motions will be grantedsparingly.

In other words, the interests of justice include the administration of justice in the context of the role of an appellate court as a court ofreview, and not a trial court. [44] In Palmer at p. 775, the Supreme Court of Canada set out the criteria to be met for admission of fresh evidence on a trialappeal pursuant to s. 610 of the Code, the predecessor to s. 683. Briefly, those criteria are that the evidence:

i) should not generally beadmitted if, by due diligence, it could have been adduced at trial; ii) must be relevant; iii) must be credible in the sense that it isreasonably capable of belief; and, iv) if believed, it must be such that it could reasonably, when taken with the other evidence adduced attrial, be expected to have affected the result. [45] In Lévesque, the Supreme Court of Canada held that the Palmer criteria also apply to a motion to adduce fresh evidencein a sentence appeal.

Writing for the majority of the court, Gonthier J. underscored that the application of the Palmer criteria did notalter the more relaxed evidentiary rules applicable to sentencing hearings (at para. 30): As pointed out by Macdonald J.A. in Langille [(1987), (NS CA), 77 N.S.R. (2d) 224 (Sup. Ct.)], the strict rules of atrial do not apply to a sentencing hearing. For example, hearsay evidence may be accepted at the sentencing stage where found to becredible and trustworthy: see R. v. Gardiner, (SCC), [1982] 2 S.C.R. 368, at p. 414.

This relaxation of the rules isexplained by the fact that the judge must determine the appropriate sentence for the accused, and to do so must have as muchinformation as possible about him. In my view, the Palmer criteria do not compromise the more flexible nature of the rules relating tothe sources and types of evidence on which judges may base their sentences. The criteria concerning the admission of fresh evidence onappeal do not relate to the sources and types of evidence and do not demand that the strict rules of a trial apply to fresh evidenceproffered on an appeal from a sentence.

To be admissible, the fresh evidence need only be relevant and credible and, when taken withthe other evidence adduced at trial, be expected to have affected the result.

The purpose of the due diligence criterion is to protect theinterests and the administration of justice and to preserve the role of appeal courts: see: M. (P.S.), [(1992), (ON CA),59 O.A.C. 1]. [emphasis in original] [46] In Angelillo, the Supreme Court of Canada held that evidence of facts tending to establish the commission of anotheroffence, in which the accused had not been convicted and that was committed while he was waiting to be sentenced on the offence underappeal, was not admissible because the requirement for due diligence had not been met. Writing for the majority of the court, Charron J.

noted that the failure to advise the sentencing judge about the new offence was the result of a conflict between Crown counsel and the detective sergeant. If it had not been for the breakdown in that relationship, the record showed that the Crown could have submitted the evidence in question.

Charron J. held that it was not in the interests of the administration of justice to condone such a lack of coordination and cooperation between the Crown and the police (see para. 16). [ 47 ] Importantly, however, she found that, in general, evidence of acts that have resulted neither in charges nor in convictions could properly be adduced to shed light on the offender’s background and character (see para. 17).

While such facts may not be used to punish the offender more severely, they may be relevant and admissible in that they relate to the sentencing objectives and principles as set out in the Code (see para. 30). [ 48 ] The decision in Angelillo was considered by the Court of Appeal of New Brunswick in R. v. Goulette (L.F.) , 2009 NBCA 49 , 350 N.B.R. (2d) 152 . In Goulette , the court allowed evidence of a recent criminal conviction that was not provided to the sentencing judge due to a lack of due diligence on behalf of the Crown.

There, the sentencing judge had relied on the representations of both defence counsel and the Crown that the accused had not been involved in criminal activity for a number of years. In that case, defence counsel at the sentencing hearing was also counsel for the accused when the conviction, which was the subject of the fresh evidence motion, was entered.

After commenting on the misinformation provided to the judge by both counsel, Richard J.A. turned to the issue of due diligence and distinguished Angelillo , stating (at para. 29 ): In my view, these facts distinguish this case from Angelillo and make the due diligence criterion not determinative of the issue. As Charron J. clearly noted, “it is in the interests of justice to avoid [that a sentencing court be deceived]” (para. 37), and the sentencing judge in this case, as opposed to the one in Angelillo , was clearly deceived.

Moreover, this is not a case, such as Angelillo , where, by admitting the fresh evidence, the court might be seen as condoning something like “the lack of co-ordination and co-operation between the Crown and the police.” That said, it is certainly not in the interests of justice for this Court to be seen as condoning a lax practice of not providing the sentencing court with an up-to-date record of previous convictions.

Nevertheless, when these competing interests are weighed, and considered together with the other factors in the Palmer analysis, I reach the conclusion that the interests of justice require the admission of the further evidence. [ 49 ] Applying the Palmer criteria to the facts of this case respecting the admission of the intervening charge as fresh evidence, the Crown agrees, as do I, that due diligence would dictate that the Crown provide a current update of an accused’s criminal record, including any relevant outstanding matters that might have arisen after the accused was charged, but before he or she was sentenced.

However, as in Goulette , I do not find the lack of due diligence to be determinative of the matter. The trial judge was misinformed regarding the status of the accused and his living situation while he was pending on the charge for which he was being sentenced. The misinformation was not the result of a lack of communication, but rather human error on behalf of the Crown and a conscious decision on behalf of the accused’s counsel. [ 50 ] In my view, the fact that the court was misinformed distinguishes this case from the Jarvis case, upon which the accused relies.

In Jarvis , the issue was whether the Crown could introduce expert psychological evidence that it was in possession of at the time of the sentencing, but chose not to introduce.

The case was not about whether the facts forming part of the foundation of the sentencing judge’s decision were incorrect. [ 51 ] Therefore, keeping in mind that in Lévesque , the court held that in criminal matters, the requirement for due diligence is not determinative and should be assessed in light of other circumstances (see para. 15), I would not dismiss this aspect of the motion on the basis of lack of due diligence. [ 52 ] Respecting relevancy, in Angelillo , Charron J. held that evidence of acts that have resulted neither in charges nor in convictions are relevant, and could properly be adduced to shed light on the offender’s background and character.

Also relevant from the circumstances of the intervening charge is the fact that the accused was not living at the friend’s residence continuously. This was contrary to t he representations made by both the accused and his counsel, from which the judge inferred that the accused had been residing with the friend the entire time that he was pending on the charge for which he was being sentenced.

Importantly, the judge relied on the residency of the accused as a significant factor that contributed to the accused’s successful rehabilitation. [ 53 ] Respecting the credibility of the evidence of the intervening charge and the surrounding circumstances, I find that, in the context of the relaxed rules of sentencing, and the fact that the evidence was not contested by the accused, it is credible. In the end, one of the co-accused pled guilty to simple possession of marihuana, which confirms the fact that marihuana was found in the residence where the accused was living.

In Lévesque , Gonthier J. reinforced that (at para. 26): A party who wishes to tender evidence in response to fresh evidence, cross-examine the deponent of an affidavit or an expert, or challenge the fresh evidence in any other way should make a formal motion to the court of appeal for that purpose. …. Insofar as the accused in this case maintains that he has not had the opportunity to test the evidence, or force the Crown to prove it, I would refer to the fact that he did not file a motion or any affidavit evidence contesting its credibility.

When questioned about the failure to file such material, counsel for the accused agreed that it was a tactical decision. [ 54 ] Finally, respecting the intervening charge and the circumstances surrounding it, it is my view that, if the sentencing judge was in possession of such information, it would be expected to have affected the resultant sentence. As is evidenced in the reasons earlier reproduced, the sentencing judge placed significant reliance on the fact that the accused had not been reinvolved in criminal

activity since his arrest and that he was rehabilitating himself with the assistance of the friend. A fair reading of his reasons would lead to the conclusion that the sentencing judge found that the accused was no longer associating with individuals in the drug subculture. [ 55 ] Regarding the criminal record of the friend, it is significant that the Crown only received the friend’s letter of reference shortly before the sentencing was about to begin.

While it is true that she could have requested an adjournment to investigate the letter, her decision not to do so must be considered in the context of the interests of justice and in having matters dealt with in a timely fashion. As it was, the charge had already been outstanding almost three and one-half years at the time of sentence.

Furthermore, while the provision of such information at the last minute might be commonplace, I am hesitant to let due diligence rule the day when the reason underlying any alleged lack of due diligence lies with the accused and his tardiness in providing the information. [ 56 ] As defence counsel at this hearing agreed that the evidence of the criminal record was credible, I will simply deal with the issues of whether it was relevant and whether it would have affected the result.

In considering these factors, it must be remembered that the friend was held out to be a responsible person with whom the accused could live while serving his conditional sentence. In my view, it is very relevant that the friend had a youth and adult criminal record, totalling approximately 23 convictions, including numerous convictions for breaching court orders. It is also relevant that the friend was subject to a probation order at the time of sentencing.

It is not disputed that such circumstances would have prevented the friend from acting as a surety, had the accused been applying for judicial interim release. [ 57 ] If the sentencing judge had known of the friend’s criminal record, it reasonably would have affected his reliance on the friend’s good character and his ability to give the accused a responsible environment within which to live and work. [ 58 ] Therefore, in light of the exceptional circumstances of this case, I would admit the fresh evidence with respect to the intervening charge, and the criminal record of the friend.

The fresh evidence with respect to the intervening charge would be that the accused was not living where he told the sentencing judge he had been living, and that he was living with a person who was involved in the drug subculture. As well, I would conclude that the lack of this information caused the sentencing judge to make incorrect findings about the accused, resulting in him overemphasizing the principle of rehabilitation. As a result, I am of the view that the sentence he imposed is unfit.

Sentence [ 59 ] As stated, the range of sentencing for a street-level trafficker of cocaine ranges from less than two and one-half years to beyond four years. It is also true that denunciation and deterrence are significant considerations. At the time of sentencing for this drug- related charge, the accused had a recent conviction for possession of cocaine and was pending on charges of possession of marihuana for the purpose of trafficking and possession of proceeds of crime (both of which have been stayed).

Furthermore, at the time of the arrest in September 2009, he was in possession of a significant amount of cocaine. Ordinarily, such circumstances would attract a period of incarceration towards the upper end of the street-level trafficking range, given the amount of cocaine seized.

In Gilchrist , this court upheld a four-year sentence for a first offender who was involved in street-level trafficking to fuel an addiction and was caught with several ounces of cocaine that were packaged for street-level sale. [ 60 ] However, based on the fact that the accused has been said to have served his conditional sentence to date without incident, that he has been a productive member of society and that he was not mainly responsible for the misinformation that caused the sentencing judge to impose an unfit sentence, I would impose a sentence of two years’ incarceration, with a credit of 12 months and one week that he has served on his conditional sentence, thereby leaving him to serve 11 months and three weeks of incarceration.

As is apparent, a conditional sentence is no longer available to the accused. The reason being that the admission of fresh evidence has resulted in an increased emphasis on denunciation and deterrence and reduced reliance on rehabilitation. [ 61 ] The term of incarceration is to be followed by two years’ supervised probation, with conditions that the accused:

a) keep the peace and be of good behaviour;

b) appear before the court when required to do so;

c) report to a probation officer within two days from the date of release from jail and thereafter when required and in the manner directed by the probation officer;

d) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation;

e) attend, participate and complete programming as directed by the probation officer. Decision [ 62 ] For the above reasons, I would allow the Crown’s application for leave to appeal sentence, allow the motion for fresh evidence and allow the sentence appeal to the extent indicated above. J.A. I agree: J.A.

I agree: J.A.