In a sentencing appeal, the British Columbia Court of Appeal in R v. Pahl split on the issue of how to properly determine whether a sentence was fit in the context of disputes over the admissibility of evidence at the sentencing level. The majority found that, as an appellate court cannot return a matter to the trial-level for re-sentencing, a judge (other than the sentencing judge) should be appointed as “special commissioner” and should make further necessary findings of fact and then return the matter to the appellate court to make the final sentencing decision. The dissent would not have remitted the matter to a special commissioner and would have instead decided the appeal on the basis of the admissible evidence.

Facts

The respondent had used his position as an airport screener at Vancouver International Airport to bypass security checks and help deliver large quantities of illegal drugs to a courier who was about to smuggle those drugs into the United States. The respondent pleaded guilty to a charge of possessing drugs for the purpose of exportation.

The respondent’s explanation for why he committed the offence was that he was coerced by an unnamed individual. Although the respondent did not testify at the sentencing hearing, his explanation was advanced via a psychologist’s report, based on information provided to the psychologist by the respondent. While the respondent’s counsel submitted that the statements made to an undercover police officer – where the respondent said that he had smuggled drugs on four previous occasions – were mere “bravado”, the Crown submitted that this should be an aggravating factor.

The sentencing judge accepted the respondent’s explanation that he was coerced into committing the offence, and he was correspondingly sentenced to eight years’ imprisonment. The Crown sought to appeal the sentence, submitting that the sentencing judge erred in principle in accepting the respondent’s explanation.

Majority: Appoint a Special Commissioner

Writing for the majority, Justice Frankel noted that, when the evidentiary disputes arose regarding the respondent’s explanation for committing the offence, the sentencing judge should have held an evidentiary hearing:

[53] In my view, the sentencing judge erred in principle in accepting Mr. Pahl’s explanation for why he committed the offence as there was no admissible evidence to support that explanation. When the factual disputes arose at sentencing, an evidentiary hearing should have been held; sometimes referred to as a “Gardiner hearing”…

While Justice Frankel found that the Court of Appeal could not send the matter back for re-sentencing, he noted that a number of other tools were available at the court’s disposal, including the appointment of a special commissioner to determine the disputed facts and report back:

[86] That it is not open to send a matter back for re-sentencing does not mean that an appellate court cannot avail itself of the trial court’s fact-finding expertise to obtain factual information needed to properly decide a sentence appeal. Section 687(1) of the Criminal Code permits an appellate court to consider “such evidence, if any, as it thinks fit to require or to receive”. More importantly, s. 683 provides a number of mechanisms appellate courts may use to obtain needed information.

[87] Appellate courts have used s. 683 to have trial judges conduct evidentiary hearings and report back. For example, in Debaat at 230, this Court appointed a Provincial Court judge to report back on Mr. Debaat’s ability to pay a restitution order. See also: R. v. Stettner, [1984] S.J. No. 372 at para. 4 (C.A.); Englehart at paras. 12-13.

[88] In my view, the appointment of a Provincial Court judge under s. 683(1)(e) as a special commissioner is the fairest and most effective way to have the disputed facts in this case determined. The rules of evidence and burdens of proof that apply to a Gardiner hearing will govern that hearing.

Dissent: Decide on the Basis of Admissible Evidence

Writing in dissent, Justice Garson noted that the remedy proposed by the majority had never been used before, and that the appropriate remedy would be for the Court of Appeal to determine the sentence’s fitness based on the admissible evidence before the court:

[93] I have found no previous case in which s. 683(1)(e) was employed in the fashion proposed by my colleague: that is, remitting an evidentiary question to the sentencing judge after a determination that the judge relied on inadmissible evidence in imposing the sentence at issue.

[94] Generally speaking, if a sentencing judge proceeds to sentence on the basis of inadmissible facts, the appellate court will, if the sentence is unfit, impose a fit sentence on the basis of the established facts: R. v. Melvin, [1995] N.B.J. No. 297, 164 N.B.R. (2d) 158 (C.A.); R. v. Verner, [1982] N.B.J. No. 244, 41 N.B.R. (2d) 95 (C.A.); R. v. Rowe, 2008 NLCA 3 (CanLII); R. v. Murphy, 2011 NLCA 16 (CanLII); R. v. Hamilton, 2004 CanLII 5549 (ON CA), [2004] O.J. No. 3252, 72 O.R. (3d) 1 (C.A.); R. v. Craig, 2003 CanLII 12866 (ON CA), [2003] O.J. No. 3263, 177 C.C.C. (3d) 321 (C.A.); R. v. Tran, 2007 BCCA 405 (CanLII).