R v Laprise, 2022 SKCA 77

Court of Appeal for Saskatchewan Docket: CACR3412 Citation: R v Laprise , 2022 SKCA 77 Date: 2022-06-30 Between: Michael Brent Laprise Appellant And Her Majesty the Queen Respondent Before: Caldwell, Schwann, and Kalmakoff JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Mr. Justice Caldwell The Honourable Madam Justice Schwann On appeal from: CRM 398 of 2017, CRM 444 of 2017, CRM 88 of 2018, Saskatoon Appeal heard: June 15, 2022 Counsel: Brian Pfefferle and Thomas Hynes for the Appellant Erin Bartsch for the Respondent Kalmakoff J.A. I.

INTRODUCTION [ 1 ] Michael Laprise appeals against the decision of a Court of Queen’s Bench judge that found him to be a dangerous offender and sentenced him to an indeterminate period of imprisonment ( R v Laprise (21 October 2020) Saskatoon, CRM 398/2017, CRM 444/2017, CRM 88/2018 (Sask QB) [ Decision ]). [ 2 ] For the reasons that follow, I conclude that Mr. Laprise’s appeal must be allowed. I would set aside the Decision and order a new hearing under

Part XXIV of the Criminal Code . II. BACKGROUND A. The Offences [ 3 ] In the proceedings that led to the Decision , Mr. Laprise was found guilty of a total of seven offences arising from three separate incidents. The circumstances of the offences can be summarized as follows. 1. November 28, 2016: Assault with a weapon and mischief [ 4 ] On November 28, 2016, Mr. Laprise walked into a restaurant in Saskatoon at around 7:00 p.m. He went to the bar and ordered a drink. The bartender asked him for his identification. This led to an argument. Mr.

Laprise went outside, retrieved a can of bear spray, and returned to the bar area. He discharged the bear spray twice, once at the bartender and once into the general seating area. The bartender was struck by the discharge. Several patrons were also affected. Bear spray, when used against another person, is a prohibited weapon. At the time of this incident, Mr. Laprise was prohibited from possession of such items by virtue of two separate existing court orders . [ 5 ] In relation to this matter, Mr. Laprise pled guilty to one count of assault with a weapon, contrary to s. 267 (

a) of the Criminal Code , and one count of mischief, contrary to s. 430(4) . 2. January 18, 2017: Robbery, assault causing bodily harm, and use of an imitation firearm in the commission of an offence [ 6 ] On January 18, 2017, Mr. Laprise and another man entered a bank in Saskatoon, positioned themselves behind the tellers and demanded money. Mr. Laprise was brandishing what appeared to be a handgun. He struck a bank employee in the head with it, and the employee fell to the ground, bleeding. Another employee took steps to get Mr. Laprise the money. Mr.

Laprise and his accomplice then left after chastising the bank employees for not handing over as much money as they had demanded. [ 7 ] After a trial, Mr. Laprise was convicted of robbery, contrary to s. 344(1) (

b) of the Criminal Code , assault causing bodily harm, contrary to s. 267 (b), and using an imitation firearm while committing the offence of robbery, contrary to s. 85(2) (a), in relation to this incident. 3. January 22, 2017: Robbery and possession of a weapon for a purpose dangerous to the public peace

[ 8 ] On January 22, 2017, Mr. Laprise, two other men and two women went to a restaurant in Saskatoon, arriving between 8:00 p.m. and 9:00 p.m. His cohorts played the VLTs and drank in the bar/lounge area. At some point, one of the other men produced a knife and demanded that the bartender open up the till. The bartender complied and handed over more than $3,900 in cash from the till. The knife-wielding man also took $500 in cash from another bystander at the bar. Mr. Laprise assisted his cohorts by pulling out a can of bear spray and threatening the other patrons in the bar, so that they would not interfere. Mr.

Laprise tried to get his accomplice to return the $500 that he had taken from the customer. The accomplice later took the bartender back to the restaurant’s office area, at knifepoint, and robbed him of another $13,498 in cash and some sports memorabilia. While this was going on, Mr. Laprise continued to yell and threaten patrons, waved around the bear spray, stole some liquor from behind the bar, and ripped out electronic equipment that he thought was part of the security system. [ 9 ] In relation to this incident, Mr.

Laprise pled guilty to charges of robbery, contrary to s. 344(1) of the Criminal Code , and possession of a weapon for a purpose dangerous to the public peace, contrary to s. 88 . B. The Sentencing Hearing [ 10 ] As noted, Mr. Laprise was found guilty after trial of the matters arising out of the January 18, 2017, incident. He then entered guilty pleas in relation to the charges arising out of the November 28, 2016, and January 22, 2017, incidents. The Crown sought an assessment order under s. 752.1 of the Criminal Code , in contemplation of an application under

Part XXIV with respect to sentencing . The sentencing judge ordered that the assessment be conducted by Dr. Alberto Choy, a forensic psychiatrist. [ 11 ] Following the receipt of Dr. Choy’s report, the Crown applied to have Mr. Laprise declared a dangerous offender and to be sentenced to an indeterminate prison term. The hearing proceeded before the sentencing judge over the course of several days in October and December of 2019, March and July of 2020, and ultimately concluded in November of 2020. [ 12 ] At the sentencing hearing, the Crown tendered as evidence an agreed statement of facts, Mr.

Laprise’s criminal record, and binders containing documents and court records that set out the circumstances of Mr. Laprise’s prior convictions. Notably, in that respect, Mr. Laprise’s criminal record contains more than 70 convictions, in addition to the offences that were the subject of the sentencing hearing.

He has a significant history of offences involving violence or weapons, including 6 previous convictions for robbery, as well as convictions for assault, various weapons-related offences, and offences against the administration of justice, namely, breaching probation orders, breaching weapons or firearms prohibitions, breaching bail conditions, being unlawfully at large, and failing to appear in court. [ 13 ] Of particular relevance to the

Part XXIV proceedings, Mr. Laprise’s criminal history includes a series of offences for which he was sentenced on September 10, 2008. On that day, Mr. Laprise pleaded guilty to several charges, including three counts of robbery, three counts of breaching bail conditions, and one count each of kidnapping, possession of a weapon for a dangerous purpose, assault, possession of a stolen car, and failing to remain at the scene of an accident. These charges stemmed from six different incidents that occurred between late November of 2006 and late April of 2007.

For this series of offences, he received an aggregate sentence of nine years, reduced by 32 and one-half months, to account for pre-sentence custody, along with a lifetime firearms prohibition order. [ 14 ] Also included in Mr. Laprise’s criminal history are a series of offences that he committed on January 27, 2017 ( i.e., after the offences that were the subject of the dangerous offender proceedings). On that date, Mr. Laprise was found driving a stolen vehicle, with a stolen firearm, ammunition, and a machete in his possession. He led the police on a chase and attempted to flee the vehicle once he was stopped.

This led to convictions on charges of fleeing police, dangerous driving, possession of a weapon for a dangerous purpose, breaching a firearms prohibition order, transporting a weapon in a careless manner, and unauthorized possession of a firearm in a vehicle. On July 27, 2018, he received an aggregate sentence of two years imprisonment on these charges. [ 15 ] Three Correctional Service Canada employees testified at the

Part XXIV sentencing hearing. They provided evidence about Mr. Laprise’s performance when he had been subject to prior sentences and his past participation in correctional programming. They also testified about what programming would be available to Mr. Laprise in the penitentiary system, how it would be administered depending on the type and duration of sentence he received, and how he may be supervised in the community under various forms of release or long- term supervision. [ 16 ] Dr. Choy was called to testify respecting his assessment of Mr. Laprise. His report was also tendered as evidence. By way of

summary, Dr. Choy’s opinion was that Mr. Laprise is afflicted with severe antisocial personality disorder and substance use disorder. He testified that Mr. Laprise has “some genetic loading” for substance abuse and behavioural problems, including impulsivity. In the light of his clinical assessment and the results generated through administering various risk assessment tools, Dr. Choy concluded that Mr. Laprise posed a high likelihood for future violent offending. Dr. Choy was of the view that, while Mr.

Laprise was able to understand and identify his own risk factors, he has persistently shown little ability to change his behaviours or put any risk management strategies into practice outside of a highly structured environment. Dr. Choy opined that, based on Mr. Laprise’s history of offending, and this clinical presentation, he met the criteria for designation as a dangerous offender under either s. 753(1) (a)(

i) or 753(1) (a)(ii) of the Criminal Code . He also noted that Mr. Laprise’s personality traits were relatively ingrained and that he had demonstrated little empathy for others in the past. He expressed the view that it would be difficult to imagine Mr. Laprise making and sustaining the wholesale changes that would be required in order for his risk to be controlled in the community. [ 17 ] Mr. Laprise also testified at the sentencing hearing. He spoke about his childhood, his family history, his current intimate relationship, his past offences, and his plans for the future. Of particular relevance, Mr.

Laprise testified about where he planned to live, how he proposed to address his substance abuse issues, how he intended to distance himself from negative associates, his plan for upgrading and deploying his employment skills, and what motivated him to make the changes necessary to alter the direction of his life in a positive way. He also spoke about his efforts to reconnect with his Indigenous heritage and the way in which he believed those efforts would assist him in his rehabilitation and eventual successful reintegration into the community. C.

The Decision [ 18 ] The sentencing judge rendered a written decision in relation to the

Part XXIV application. The decision is 41 pages in length.

[19] Over the course of the first 11 pages of the Decision, the sentencing judge reviewed the applicable law, referred to the relevantsections of the Criminal Code, cited various decisions including R v Boutilier, 2017 SCC 64, [2017] 2 SCR 936 [Boutilier]; R v Lyons, (SCC), [1987] 2 SCR 309; R v S.P.C., 2018 SKCA 94 [S.P.C.]; R v Starblanket, 2019 SKCA 130, [2020] 6 WWR 288[Starblanket]; and R v Parfitt, 2019 SKCA 55, 378 CCC (3d) 490, and quoted lengthy passages from each of them. [20] The sentencing judge turned to the evidence of Dr. Choy.

Over the course of the next 28 pages, he reproduced large sections ofDr. Choy’s assessment report, emphasizing certain portions by adding boldface. [21] The sentencing judge then summarized his findings in relation to Dr. Choy’s report, by writing: [26] The report establishes for the Court that Mr. Laprise in controlled environments has an A rating with respect to being a quicklearner with good academic skills and at times a desire and ability to seek and maintain employment.

However, he has a vicious temperand is very skillful at manipulating other inmates in the penitentiary in which he is resident at the time and very skillful in controlling theprison environment. This is evidenced by his ability to move up quickly to be the leader of the native gang in the penitentiary where heresides. He is so skilled at manipulating other inmates that other inmates will attack others as instructed by Laprise rather than be attackedthemselves. [27] The evidence established that this happened in the penitentiary in Saskatchewan, so Laprise was relocated to the penitentiary inNorthern Alberta.

He very quickly rose to the top of the native gangs within this prison. [28] This establishes his ability to quickly manipulate and control others in his environment. [29] The Court does accept the professional evidence of Dr. Choy that the accused qualifies as a dangerous offender and is in thehighest risk category to re-offend. With respect to the inability of Dr.

Choy to comment on s. 753(1)(a)(iii) of the Criminal Code, theCourt does have before it substantial evidence of other witnesses that the accused’s offences are of such a brutal nature that his behaviourin the future is unlikely to be inhibited by normal standards of behavioural restraint. This is especially evident by the brutal attack on themale bank teller which caused significant physical and psychological harm, much of which is likely to be lifelong for the victim, and thetying up of two Subway employees and locking them in the trunk of a car for an extended period of time.

To this is added a lifetime ofviolent offences listed on his criminal record, all of which have been accumulated by a man of his young age. [22] Having found that Mr. Laprise met the criteria for designation as a dangerous offender, the sentencing judge turned hisattention to the appropriate penalty. After quoting s. 753(4) and (4.1) of the Criminal Code, he said: [31] The Court does hereby declare the accused to be a dangerous offender under s. 753(4)(

a) of the Criminal Code and does impose asentence of detention in a penitentiary for an indeterminate period based upon the overwhelming evidence set forth in the precedingparagraphs with particular note of the highlighted portions. [23] The sentencing judge made no direct reference in the Decision to any of the testimony given by the Correctional ServiceCanada witnesses, and no reference whatsoever to the testimony of Mr. Laprise. [24] Although the sentencing judge found Mr.

Laprise to be a dangerous offender and concluded that an indeterminate sentenceshould be imposed, he did not specify in the Decision which offence or offences that sentence applied to. Nor did he specify what sentencehe was imposing for the offences in relation to which an indeterminate sentence either was not being sought or could not legally beimposed. The parties reconvened approximately four weeks after the Decision was delivered and made submissions in that respect.

Afterhearing those submissions, the sentencing judge clarified that the dangerous offender designation and indeterminate sentence would applyonly to the two counts of robbery. He also imposed the following sentences for the remaining offences: (

a) for the January 18, 2017, incident: 24 months concurrent for assault causing bodily harm, and 18 months consecutive forusing an imitation firearm while committing robbery; (

b) for the January 22, 2017, incident: 9 months concurrent for carrying a weapon for a purpose dangerous to the public peace;and (

c) for the November 28, 2016, incident: 18 months consecutive for assault with a weapon, and 18 months concurrent formischief. III. THE GROUNDS OF APPEAL [25] Mr. Laprise appeals only against his sentence. He asserts that the sentencing judge erred in two ways: (

i) by failing to considerhis testimony at the dangerous offender hearing; and (ii) by failing to consider and apply s. 718.2(

e) of the Criminal Code. Mr. Laprisesays the appropriate remedy is for this Court to set aside the dangerous offender designation made in relation to the two convictions forrobbery and to order a new hearing under

Part XXIV of the Criminal Code. IV. ANALYSIS [26] As I will explain, I am of the view that the sentencing judge erred in the ways that Mr. Laprise suggests. A new hearing mustbe the result. A. Standard of review

[27] Section 759(1) of the Criminal Code permits a person who is found to be a dangerous offender to appeal on “any ground of lawor mixed law and fact”. Appellate review from a finding that an offender should be designated as a dangerous offender is concerned withlegal error and whether the designation and sentence imposed are reasonable.

While this involves a somewhat more robust review than aregular sentence appeal, it does not call for a completely fresh look at the designation (R v Sipos, 2014 SCC 47 at paras 23–26, [2014] 2SCR 423 [Sipos]; R v Potter, 2022 SKCA 14 at para 44 [Potter]). [28] Absent an error of law, a court of appeal will not intervene unless the sentencing judge’s findings were unreasonable (R vCurrie, (SCC), [1997] 2 SCR 260 at paras 33–35; Potter at para 44; Starblanket at para 27). The presence of an error oflaw in the sentencing judge’s decision does not invariably mean that appellate intervention is warranted, however.

An appellate court maydismiss an appeal even in the face of a legal error, provided the error occasioned no substantial wrong or miscarriage of justice. The powerto dismiss an appeal against a dangerous offender designation, in the face of a legal error, will be exercised only in the rarest ofcircumstances, where the Crown has shown that there is no reasonable possibility that the outcome would have been any different had theerror of law not been made (Sipos at para 24; R v Johnson, 2003 SCC 46 at paras 49-50, [2003] 2 SCR 357 [Johnson]; R v Piche, 2019SKCA 54 at para 104, [2020] 2 WWR 240). B.

Did sentencing judge err by failing to consider Mr. Laprise’s evidence? [29] Dangerous offender proceedings are sentencing proceedings. As in any sentencing hearing, it is the duty of the judge in adangerous offender proceeding to determine a fit sentence. Section 723(2) of the Criminal Code requires that a court “shall hear anyrelevant evidence presented by the prosecutor and the offender” when determining a sentence.

Section 726.1 says that “in determining thesentence, a court shall consider any relevant information placed before it, including any representation or submissions made by or onbehalf of the prosecutor or the offender”. [30] In addition to this explicit statutory direction, the jurisprudence is clear that a failure by a judge to consider all of the evidence,in any proceeding, is an error of law (see, for example: R v Walle, 2012 SCC 41 at para 52, [2012] 2 SCR 438 [Walle]; R v Cote, 2015SKCA 52 at para 52, 457 Sask R 237; and R v Choli, 2016 SKCA 64 at para 46, 480 Sask R 73 [Choli]).

In the context of dangerousoffender proceedings, it is an error of law to fail to consider evidence relevant to treatability and manageability at either the designation orpenalty stage (see, for example: Boutilier at paras 43–44; R v Bird, 2021 SKCA 35 at para 20; Starblanket at para 67; and R v Daniels,2011 SKCA 67 at para 50, 375 Sask R 1). [31] This does not mean that the mere failure by a sentencing judge to mention a piece of evidence in their reasons can automaticallybe taken as a failure to consider that evidence.

A judge is not required to refer to every item of evidence they consider or to detail the wayeach item of evidence was assessed. Unless the record demonstrates that consideration of all the evidence in relation to the ultimate issuewas not done, the failure to record the fact of it having been done is not a proper basis on which to find legal error (R v J.M.H., 2011 SCC45 at paras 31–32, [2011] 3 SCR 197; Walle at para 52).

However, where the record, including the reasons for judgment, discloses a lackof appreciation of the relevant evidence or the complete disregard of such evidence, it is appropriate for an appellate court to intercede (Rv Harper, (SCC), [1982] 1 SCR 2 at 14; Choli at para 49). [32] In this case, Mr. Laprise’s testimony was unquestionably relevant to the issues the sentencing judge had to decide. It spoke tomatters pertaining both to whether designation as a dangerous offender was appropriate and what sort of penalty should be imposed. Muchof what Mr.

Laprise had said stood in contrast to, or provided an explanation for, what the Correctional Service Canada witnesses hadrecounted about his performance while in custody and on supervision. It also provided evidence about Mr. Laprise’s background and hisplans going forward that needed to be carefully considered and weighed in conjunction with Dr. Choy’s evidence. In particular, thesentencing judge needed to engage with Mr. Laprise’s evidence to determine whether it gave him reason to question or reject what Dr.Choy had said regarding such things as Mr.

Laprise’s treatability or the prospect of the eventual control of his risk in the community. [33] But the Decision does not reveal any such engagement. While the sentencing judge explicitly stated that he accepted theevidence set out in Dr. Choy’s report, it is not possible to reasonably read his reasons as demonstrating that he reached that conclusion byimplicitly rejecting the evidence given by Mr. Laprise, or by implicitly finding that Mr. Laprise’s evidence did not displace Dr. Choy’sopinions. I say this, in large part, because Dr. Choy’s report is the only evidence mentioned in any way in the Decision.

In 41 pages, theDecision contains not one single mention of the testimony given by Mr. Laprise. In a dangerous offender proceeding, where the offendertestifies about crucial matters, as Mr. Laprise did here, it is vital that the court assess that evidence and weigh it in determining the propersentence to impose. In my view, there is simply no way to read the Decision as establishing that the sentencing judge undertook thatassessment. Instead, he appears to have completely disregarded Mr. Laprise’s evidence and to have deferred entirely to Dr. Choy’s clinicalopinion. That was an error of law. C.

Did the sentencing judge err by failing to consider and apply s. 718.2(

e) ofthe Criminal Code? [34]

Section 718.2(

e) of the Criminal Code requires that, for all offenders, sentencing judges must consider “all available sanctions,other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to the victims or to the community”,and that in this consideration, they give “particular attention to the circumstances of Aboriginal offenders”. It is settled law that thisprovision imposes a requirement to consider the unique circumstances of Indigenous offenders in every case before a sentence is imposed,including in proceedings brought under

Part XXIV (R v Ipeelee, 2012 SCC 13 at para 87, [2012] 1 SCR 433; R v Standingwater, 2013SKCA 78 at paras 52–53, 417 Sask R 158; R v Montgrand, 2014 SKCA 31 at para 16, 433 Sask R 248; R v Peekeekoot, 2014 SKCA 97 atpara 59, 446 Sask R 22). [35] Weighing issues such as the offender’s culpability, future risk and treatability necessarily requires a sentencing judge toconsider how the offender may have been affected by their individual experience as an Indigenous person, including the impact of historicand systemic factors, a point well-explained by Ryan-Froslie J.A. in R v Moise, 2015 SKCA 39, 457 Sask R 190 [Moise]: [24]

Section 718.2(

e) requires a sentencing judge to consider both the unique circumstances of Aboriginal offenders which may

diminish their moral blameworthiness in committing the offences for which they are charged, and any available alternatives to incarceration which exist as a result of culturally sensitive programming and supports both within and outside the Aboriginal community.

When dealing with violent offenders subject to dangerous and long-term offender applications, moral blameworthiness may have little or no impact on the need for incarceration to protect the public, but culturally sensitive programming and supports may make a difference to the offender’s rehabilitation and management, within the community, of his or her risk to reoffend (see: Standingwater at paras. 49-53 ; Montgrand at paras. 16-17 ; Peekeekoot at para. 58 ). [25] As with any sentencing decision, the weight to be attributed to Gladue considerations rests with the sentencing judge.

It is, however, mandatory that those provisions be taken into account (see: Gladue at paras. 82-84; Ipeelee at paras. 60 and 85 ; Standingwater at para. 51 ; Montgrand at paras. 16-17 ; and, Peekeekoot at paras. 57-59 .) [26] Crown counsel, defence counsel and sentencing judges must pay more than lip service to Gladue considerations. For s. 718.2(

e) to serve any purpose, there must be more than a review of the offender’s personal circumstances. There must be a meaningful evaluation of any alternatives to incarceration including culturally sensitive programming, supports and safeguards available within and outside the Aboriginal community which may assist in rehabilitating the offender, reducing his or her risk to reoffend violently and managing his or her behaviour within the community. … [ 36 ] As noted in Moise , it is particularly important, in the context of a

Part XXIV proceeding, for a sentencing judge to consider the potential impact of culturally specific programming for an Indigenous offender.

This principle was recently affirmed in R v Ballantyne , 2022 SKCA 13 [ Ballantyne ], where Jackson J.A. wrote: [23] …When Indigenous offenders are sentenced under s. 753(4.1) of the Criminal Code , any consideration of treatment necessarily includes Gladue factors and culturally specific programming: R v Montgrand , 2014 SKCA 31 at paras 16 and 17 , 433 Sask R 248; R v Standingwater , 2013 SKCA 78 at paras 49–53 , 417 Sask R 158; and R v Starblanket , 2019 SKCA 130 at paras 71 , 74 and 81, [2020] 6 WWR 288.

If such programming can be shown to reduce an offender’s risk to a manageable level, an offender should not be declared a dangerous offender, and the imposition of an indeterminate sentence would not be appropriate. … [ 37 ] All of this is to say that where, as here, the offender being sentenced is Indigenous, a sentencing judge cannot ignore s. 718.2(e). While s. 718.2(

e) does not dictate a particular result; it must form part of the analysis. Failing to consider it is an error of law. [ 38 ] Again, in my view, the sentencing judge in this case failed to give any consideration to Mr. Laprise’s background and unique experiences as an Indigenous person. In part, this is because he appears to have completely ignored Mr. Laprise’s evidence. Mr. Laprise testified about his family background. He testified about how his experiences as an Indigenous person shaped his criminal history and how it affected the way he viewed the world.

He testified about his latent connection to his Indigenous heritage, and about how he saw that affecting his choice of institutional programming and his prospects of success in that programming. He testified about how those things affected his plan for eventual life outside of a custodial setting in the future. [ 39 ] Regrettably, the sentencing judge did not engage with any of this.

The Decision reveals no analysis of any of that evidence, and no recognition of the need to approach the problem of determining an appropriate sentence from the angle set out in Moise and Ballantyne, or the cases referred to in those decisions. The failure to conduct this analysis was an error of law. D. Is a new hearing required? [ 40 ] In the light of those errors, in my view, the appropriate remedy is to order a new sentencing hearing.

As noted earlier, the power to dismiss an appeal from a dangerous offender designation in the face of legal error is to be exercised only in the rarest of circumstances, where the Crown has shown that there is “no reasonable possibility that the verdict would have been any different had the error of law not been made” ( Sipos at para 24 ; Johnson at para 50 ). The Crown has not met that burden in this case. Let me explain. [ 41 ] The sentencing judge conducted no analysis of Mr. Laprise’s evidence, made no findings of its credibility or reliability, and gave no consideration to how the things Mr.

Laprise said might have affected his conclusions regarding the risk he posed going forward or the likelihood of that risk being successfully managed. The sentencing judge also conducted no analysis of Mr. Laprise’s evidence, or any of the other evidence, through the lens of s. 718.2 (

e) of the Criminal Code . Given the nature of that evidence and its relevance to the issues in a

Part XXIV proceeding, I am not persuaded that the outcome – i.e., a dangerous offender designation and indeterminate sentence—was inevitable. As such, that result cannot be sustained on appeal in the face of errors of law. [ 42 ] Nor is this Court in a position to impose the appropriate sentence based on its own review of the record. This is because the sentencing judge’s errors include failing to consider the evidence and, thus, failing to make the necessary findings of fact. A proper determination of sentence would require weighing the evidence given by Mr.

Laprise, making credibility findings, and making determinations of fact. That is not properly done on the basis of a sterile transcript. A new hearing must be held. V. CONCLUSION [ 43 ] I would allow Mr. Laprise’s appeal and remit the matter to the Court of Queen’s Bench for a new sentencing hearing under

Part XXIV of the Criminal Code , in relation to the two counts of robbery. No appeal was taken in relation to the fixed sentences imposed on Mr. Laprise for the other offences . As such, I would not disturb those sentences. [ 44 ] Mr. Laprise did not appeal against his convictions on the charges of robbery. As such, he shall be detained in custody under the authority of the warrant of committal that issued following his convictions until he may appear in the Court of Queen’s Bench to be dealt

with according to law. A warrant remanding him may be issued by the Registrar of this Court to that effect. “Kalmakoff J.A.” Kalmakoff J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Schwann J.A.” Schwann J.A.