R. v. W. (G.), [1999] 3 S.C.R. 597
Her Majesty The Queen Appellant
v.
G.W. Respondent
Indexed as: R. v. W. (G.)
File No.: 26705.
Hearing and judgment: June 16, 1999.
Reasons delivered: October 15, 1999.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the court of appeal for newfoundland
Criminal law -‑ Appeals -‑ Court of Appeal ‑- Jurisdiction -- Sentencing -- Whether Court of Appeal has inherent jurisdiction to vary sentence where no appeal from sentence has been sought -- Whether Court of Appeal can ease its concern over what it feels is an improper sentence by inviting counsel to seek leave to appeal.
The accused was convicted by a jury of one count of assault, two counts of assault and sexual assault against his common law spouse and one count of obstruction of justice. He was sentenced to four years in prison. He appealed his conviction but not his sentence. The Court of Appeal dismissed the appeal against conviction. However, based on its unease over the prison term it elected to exercise what it deemed to be an inherent jurisdiction to review sentence on its own motion, even in the absence of an appeal against sentence. Counsels were ordered to return to present argument on the sentence. The Crown appeals the Court of Appeal’s order on sentence.
Held: The appeal is allowed.
Per Lamer C.J. and Gonthier, Iacobucci, Major, Bastarache and Binnie JJ.: Appellate courts do not have inherent jurisdiction to consider a sentence imposed upon an accused after conviction, in the absence of an appeal against sentence. No such power exists in a court that is governed solely by a statutory framework. A review of the line of authority considered by the Court of Appeal to support its claim to inherent appellate jurisdiction to deal with sentencing reveals, first, that some of the cases do not necessarily support such an assertion, and second, that those that do support it all purport to follow a single British case that does not in fact support the existence of that jurisdiction.
While appellate courts have no explicit statutory right to invite appeal on sentence, they do possess the right to ask the parties questions during oral argument. But an appellate court’s jurisdiction in this area is seriously limited and should be exercised in only the rarest of circumstances. As long as the question is not raised in a manner which suggests bias or partiality on the part of the appeal court, such a question is proper. The Court of Appeal’s reasons for judgment, which speak of an “unease” and “discomfort” with the sentence imposed, indicate that the necessary threshold for raising the issue of a sentence appeal with counsel was not met. Courts should refrain from raising the issue unless, after reviewing the conviction appeal, there is some preliminary indication that the sentence is “clearly unreasonable” or “demonstrably unfit” in the sense of being outside the acceptable range. The Court of Appeal conducted what amounted to a de facto sentence review which was inappropriate. Its reasoning gives rise to a reasonable apprehension of bias in favour of the accused.
Per L’Heureux-Dubé and Gonthier JJ.: The Court of Appeal has no jurisdiction to review a sentence proprio motu. In the absence of jurisdiction to entertain a sentence appeal, the Court of Appeal was clearly wrong to comment on the adequacy of the sentence. The comments attract a reasonable apprehension of bias, all the more so since such comments may be perceived as reflecting myths and stereotypes about complainants in sexual assault cases.
Cases Cited
By Lamer C.J.
Disapproved: R. v. MacKay (1934), 62 C.C.C. 188; R. v. Musgrave (1926), 46 C.C.C. 45; distinguished: R. v. Towers (1929), 21 Cr. App. R. 74; R. v. Henry (1927), 20 Cr. App. R.. 117; R. v. Moscovitch (1924), 18 Cr. App. R. 37; R. v. Hervey (1939), 27 Cr. App. R. 146; referred to: R. v. Thomas, [1998] 3 S.C.R. 535; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53; R. v. Ferencsik, [1970] 4 C.C.C. 166; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Shropshire, [1995] 4 S.C.R. 227.
By L’Heureux-Dubé J.
Referred to: R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Esau, [1997] 2 S.C.R. 777; R. v. Ewanchuk, [1999] 1 S.C.R. 330.
Statutes and Regulations Cited
Criminal Code, R.S.C., 1985, c. C-46, ss. 675(1), 678, 687.
Authors Cited
Andrias, Richard T. “Rape Myths: A persistent problem in defining and prosecuting rape” (1992), 7:2 Criminal Justice 2.
Archard, David. Sexual Consent. Oxford: Westview Press, 1998.
Burt, Martha R. “Rape Myths and Acquaintance Rape”. In Andrea Parrot and Laurie Bechhofer, eds., Acquaintance Rape: The Hidden Crime. New York: John Wiley, 1991, 26.
Federal/Provincial/Territorial Working Group of Attorneys General Officials on Gender Equality in the Canadian Justice System. Gender Equality in the Canadian Justice System: Summary Document and Proposals for Action. Ottawa, 1992.
Mack, Kathy. “‘You should scrutinise her evidence with great care’: Corroboration of women’s testimony about sexual assault”. In Patricia Easteal, ed., Balancing the Scales: Rape, Law Reform and Australian Culture. Sydney: Federation Press, 1998, 59.
Mohr, Renate M. “Sexual Assault Sentencing: Leaving Justice to Individual Conscience”. In Julian V. Roberts and Renate M. Mohr, eds., Confronting Sexual Assault: A Decade of Legal and Social Change. Toronto: University of Toronto Press, 1994, 157.
Ruby, Clayton C. Sentencing, 4th ed. Toronto: Butterworths, 1994.
Sheehy, Elizabeth A. “Canadian Judges and the Law of Rape: Should the Charter Insulate Bias?” (1989), 21 Ottawa L. Rev. 741.
APPEAL from a judgment of the Newfoundland Court of Appeal (1998), 163 Nfld. & P.E.I.R. 132, 503 A.P.R. 132, 18 C.R. (5th) 379, [1998] N.J. No. 130 (QL), regarding a jurisdiction issue. Appeal allowed.
Wayne Gorman, for the appellant.
R. Michael Newton, for the respondent.
The judgment of Lamer C.J. and Gonthier, Iacobucci, Major, Bastarache and Binnie JJ. was delivered by
The Chief Justice –
I. Introduction
1 The central issue in this appeal is whether appellate courts have any inherent jurisdiction to consider the sentence imposed upon an accused after conviction, in the absence of an appeal against sentence. The respondent was convicted by a jury of two counts of assault and sexual assault against his common law spouse, occurring over an extended period of time, one count of assault which occurred on January 3, 1993 and one count of obstruction of justice. The trial judge sentenced the respondent to four years’ imprisonment. The respondent appealed his conviction but not his sentence. The Crown indicated an intent to appeal the sentence but elected not to pursue the matter after the hearing on the conviction appeal. The Court of Appeal dismissed the appeal against conviction but ordered that counsel return to present argument on the sentence. The court held that it had an inherent jurisdiction to consider the sentence on its own motion (proprio motu), even in the absence of an appeal against sentence. The Crown appealed the decision of the Court of Appeal to this Court and, in the interim, the Court of Appeal’s order was stayed. On June 25, 1999, the Court of Appeal (in a separate proceeding) granted the respondent an extension of time in which to file a notice of application for leave to appeal from sentence.
2 This Court allowed the Crown’s appeal from the Bench. The Court of Appeal’s order that the parties return to present argument on sentence was quashed. We indicated that reasons for judgment would follow. These are those reasons which elaborate briefly on our decision.
II. Background
3 The indictment of the respondent contained four counts. Counts 2 and 3 were of a general nature alleging both physical and sexual abuse on the complainant over an extended period of almost six years. Count 1 referred to a specific assault on January 3, 1993 in which the complainant’s arm was fractured. Count 4 referred to a charge of obstruction of justice arising from the respondent’s death threats against the complainant in the event that she should proceed with her allegations of abuse. The respondent was convicted by a jury of all counts. He was sentenced to a total period of incarceration of four years after consecutive sentences were imposed for each conviction.
4 The accused appealed his conviction but did not seek leave to appeal his sentence. The Court of Appeal dismissed the conviction appeal: (1998), 163 Nfld. & P.E.I.R. 132. However, it indicated in its reasons for judgment by Marshall J.A., at p. 147, that it felt “sufficient unease over the prison term” to invoke its alleged “inherent appellate power” to review the sentence on its own motion. It ordered that counsel return to present argument on the sentence within a week.
III. Relevant Statutory Provisions
5 Criminal Code, R.S.C., 1985, c. C-46
675. (1) A person who is convicted by a trial court in proceedings by indictment may appeal to the court of appeal
(a) against his conviction
(i) on any ground of appeal that involves a question of law alone,
(ii) on any ground of appeal that involves a question of fact or a question of mixed law and fact, with leave of the court of appeal or a judge thereof or on the certificate of the trial judge that the case is a proper case for appeal, or
(iii) on any ground of appeal not mentioned in subparagraph (i) or (ii) that appears to the court of appeal to be a sufficient ground of appeal, with leave of the court of appeal; or
(b) against the sentence passed by the trial court, with leave of the court of appeal or a judge thereof unless that sentence is one fixed by law.
. . .
678. (1) An appellant who proposes to appeal to the court of appeal or to obtain the leave of that court to appeal shall give notice of appeal or notice of his application for leave to appeal in such manner and within such period as may be directed by rules of court.
(2) The court of appeal or a judge thereof may at any time extend the time within which notice of appeal or notice of an application for leave to appeal may be given.
. . .
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.
(2) A judgment of a court of appeal that varies the sentence of an accused who was convicted has the same force and effect as if it were a sentence passed by the trial court.
IV. Decision of the Court of Appeal
6 The Court of Appeal dismissed the appeal against conviction. However, based on its “unease” with the length of the prison term imposed, the court elected to exercise what it deemed to be an inherent jurisdiction to review the sentence even in the absence of an appeal against sentence. Its conclusion that it possessed such jurisdiction stemmed entirely from its reading of the text Sentencing (4th ed. 1994) by C. Ruby wherein the author provided (at p. 455) five case precedents as authority for such an inherent appellate jurisdiction. The court expressed its concern over the evidence presented in this case, particularly the evidence of the complainant. The complainant’s motivation for laying the charges was questioned as the court speculated she may have been prompted by the accused’s new relationship with another woman. The “indirect effect” of a motive inspired by vengeance had to be considered. Furthermore, the court felt that its perusal of the record showed several indicia of exaggeration by the complainant with respect to the extent and nature of the abuse and injuries suffered. Finally, the court concluded that its “extreme discomfort” over the length of the sentence could be further traced to the lack of need for specific deterrence. The Court of Appeal observed that the accused and complainant were no longer involved in an intimate relationship. Accordingly, the court assumed that the need for specific deterrence was negligible to non-existent. The parties were ordered to return in one week to present argument on sentence.
V. Analysis
7 At first blush this appeal could be disposed of quickly by dealing with the central issue of whether there is any inherent appellate power to deal with sentencing matters in the absence of an appeal against sentence. The answer is clearly “no”. No such power exists in a court that is governed solely by a statutory framework. However, a second glance reveals that this case involves a more complicated subsidiary issue. If an appellate court cannot deal with the matter of sentence in the absence of an appeal on that issue, can it assuage its concern over what it feels is an improper sentence by inviting counsel to seek leave to appeal? The respondent argues that appellate courts have the power to invite argument on specific matters. I will elaborate on these two issues in turn. Finally, in light of the respondent’s successful application for an extension of time to seek leave to appeal sentence, I will discuss my concerns with the appellate judgment in this case which cause me to suggest that any further hearings be conducted before a differently constituted panel. In my view, the reasoning of the Court of Appeal gives rise to a reasonable apprehension of bias in favour of the respondent.
A. Appellate Court Powers
8 It is clear that there is no inherent appellate court jurisdiction. This statement has been explicitly made in numerous cases and should be well understood. Most recently in R. v. Thomas, [1998] 3 S.C.R. 535, I reiterated the established principle that courts of appeal are purely statutory bodies. La Forest J. earlier emphasized this concept in Kourtessis v. M.N.R., [1993] 2 S.C.R. 53, at pp. 69-70:
Appeals are solely creatures of statute; see R. v. Meltzer, [1989] 1 S.C.R. 1764, at p. 1773. There is no inherent jurisdiction in any appeal court. Nowadays, however, this basic proposition tends at times to be forgotten. Appeals to appellate courts and to the Supreme Court of Canada have become so established and routine that there is a widespread expectation that there must be some way to appeal the decision of a court of first instance. But it remains true that there is no right of appeal on any matter unless provided for by the relevant legislature.
The jurisprudence of this Court has definitively established therefore, that appellate courts cannot claim any inherent jurisdiction.
9 The Court of Appeal in this case based its claim to inherent appellate jurisdiction to deal with sentencing on Ruby’s text Sentencing, supra. Mr. Ruby makes reference to five cases which in his view provide the authority for inherent appellate sentencing jurisdiction. A review of this line of authority reveals, first, that some of these cases do not necessarily support Mr. Ruby’s assertion, and second, that those that do support it all purport to follow a single British case that does not in fact support the existence of that jurisdiction.
10 In two of the cases cited by Mr. Ruby, the accused had actually initiated appeals against sentence. In R. v. Henry (1927), 20 Cr. App. R. 117, the accused specifically appealed his sentence which included a term of “preventive detention” following his conviction and labelling as a “habitual criminal”. The court considered that the accused’s record was very bad but that he had shown initiative in gaining employment and, therefore, the term of preventive detention was removed. In my view, this case can only be referred to as support for the notion that where an accused appeals his or her sentence, a court can reduce the sentence on its own judgment without returning the matter to a sentencing judge. While the headnote states: “the Court may proprio motu reduce the primary sentence”, the case does not support the notion that the court could reduce sentence when it was not appealed.
11 In R. v. Towers (1929), 21 Cr. App. R. 74, the accused applied for leave to appeal his conviction. At the hearing, he also asked the court to give leave to appeal against sentence. The Crown raised no objection to the application being extended to include the question of sentence. The court noted that it was “unintelligible” why the accused would not have applied for leave to appeal his sentence. Crown counsel “concede[d] the point” (p. 75). The court further held that since Crown counsel was present in the courtroom, it would deal with the matter immediately. The accused’s sentence was reduced from a prison term to a fine. The reduction was mandated because the trial judge was under a mistaken impression that he did not have the power to impose a fine. Since it was “perfectly obvious” that he did indeed have such a power, the Court of Appeal substituted that result. I would note however that the accused in Towers did specifically seek leave to appeal his sentence which merited no objection from the Crown. This is distinguishable from the case at bar.
12 I turn now to the other cases relied on in the court below. In R. v. MacKay (1934), 62 C.C.C. 188, the Nova Scotia Supreme Court did state that it could proprio motu reduce the sentence and relied on R. v. Musgrave (1926), 46 C.C.C. 45 (N.S.S.C.) as authority for exercising this power. Musgrave concluded that a court may proprio motu reduce sentence where there was no appeal against sentence. The Nova Scotia Supreme Court in Musgrave relied on an English case, R. v. Moscovitch (1924), 18 Cr. App. R. 37, as authority for this proposition. In Moscovitch, the accused appealed against his conviction but his counsel was specifically invited to seek leave to appeal against sentence. After considering the circumstances, the court in Moscovitch reduced his sentence.
13 The appellant quite rightly points out that in Moscovitch, the court specifically invited the accused to appeal against his sentence. Therefore, it was improperly relied upon in Musgrave, supra, which used it as a precedent for an appellate court reducing sentence completely on its own initiative. Musgrave then was improperly relied upon in MacKay.
14 In R. v. Hervey (1939), 27 Cr. App. R. 146, at pp. 148-49, the court noted that the defendant had appealed against his conviction only but held, “it is within the power of the Court to treat his notice of appeal as if it had included an appeal against sentence”. The accused was convicted on four counts dealing with robbery, housebreaking and conspiracy to steal. The court quashed his conviction on two counts and stated, “Notwithstanding the omission in the notice of appeal, the Court is of opinion that, in view of the partial revision of the conviction, his sentence may suitably be reduced to one of eighteen months’ imprisonment” (emphasis added). Hervey is distinguishable from the case at bar in two respects: first, the court in Hervey quashed his conviction on two counts and it therefore follows that his sentence should have been reduced accordingly; second, while the court in Hervey felt it could extend an appeal from conviction to include an appeal from sentence, the current Canadian Criminal Code offers specific alternatives that an accused must follow to appeal a conviction and/or sentence. In particular, s. 675(1)(b) states:
675. (1) A person who is convicted by a trial court in proceedings by indictment may appeal to the court of appeal
. . .
(b) against the sentence passed by the trial court, with leave of the court of appeal or a judge thereof unless that sentence is one fixed by law. [Emphasis added.]
An accused therefore needs leave of the court to appeal his or her sentence. It would not be proper for an appellate court to consider a notice of appeal from conviction as incorporating a notice of appeal from sentence. This point was made in R. v. Ferencsik, [1970] 4 C.C.C. 166 (Ont. C.A.), wherein Aylesworth J.A. specifically held that the unequivocal wording of the appeal sections of the Criminal Code, “indicates the separateness of and the distinction between appeals as against conviction or dismissal of a charge on the one hand, and as against sentence on the other” (p. 167).
15 It is evident therefore that there is no inherent power in courts of appeal to deal with sentence appeals. The jurisprudence from this Court confirms the statutory definition of appellate bodies. This conclusion alone is sufficient to dispose of the narrow issue here in that the Newfoundland Court of Appeal erred in finding that it had the inherent power to consider a sentence in the absence of an appeal against sentence. However, as I said, this case also raises a separate question as to whether an appellate court has the power to invite a sentence appeal in the interests of justice. As I will explain, in my view an appellate court’s jurisdiction in this area is seriously limited and should be exercised in only the rarest of circumstances.
B. Proper Role of the Court
16 It is true that the Newfoundland Court of Appeal did not “officially” reconsider the respondent’s sentence in the absence of an appeal against sentence. Rather, it ordered the parties to return to court in one week’s time to set a date for the hearing of argument on sentence. The respondent remained free on judicial interim release. In argument before us, the respondent conceded that the court did not have the inherent power it claimed to consider the sentence but argued that it did have the power to “invite” the respondent to file an Application for an extension of time to proceed with a Notice of Application for leave to appeal sentence. This power of “invitation” is also mentioned in one of the cases relied on in one of the cases previously mentioned, Moscovitch, supra. I would note that such a power has no statutory foundation.
17 While appellate courts have no explicit statutory right to invite appeal on sentence, they do possess the right to ask the parties questions during oral argument. As long as the question is not raised in a manner which suggests bias or partiality on the part of the appeal court, such a question is proper. It is important to emphasize that this right is limited to oral argument, and may not be exercised ex parte, in the court’s reasons for judgment or in any other forum. Parenthetically, I would add that it is not inappropriate, however, for an appellate court simply to note in its reasons for judgment that neither party brought an appeal against sentence before it. An appeal court may wish to do so in order to indicate, for example, why the conviction was reviewed but the sentence was left untouched.
18 This approach respects the tactical decisions made by counsel and remains firmly within the procedure for sentence appeals articulated in the Criminal Code. It also avoids an apprehension of bias because appellate judges are expected to ask pointed questions in the course of oral argument. By contrast, the Newfoundland Court of Appeal’s approach of inviting appeal risks creating an apprehension of bias particularly if, as in this case, the Court of Appeal expresses “discomfort” or “unease” with the sentence in its reasons. Such an approach, in my view, may provide grounds on which to impugn the impartiality of the court when it subsequently hears submissions on sentence. Especially in the absence of an appeal against sentence, such an expression of opinion also violates the longstanding principle that sentencing judges are owed tremendous deference due to the delicate nature of the sentencing process. In R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 91, I elaborated on the deference owed sentencing judges:
This deferential standard of review has profound functional justifications. As Iacobucci J. explained in Shropshire, [[1995] 4 S.C.R. 227], at para. 46, where the sentencing judge has had the benefit of presiding over the trial of the offender, he or she will have had the comparative advantage of having seen and heard the witnesses to the crime.... A sentencing judge still enjoys a position of advantage over an appellate judge in being able to directly assess the sentencing submissions of both the Crown and the offender. A sentencing judge also possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered consequences of the offender’s crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be “just and appropriate” for the protection of that community. The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly. [Emphasis added.]
In rare circumstances, appellate courts may feel compelled to ask the parties why they have not appealed a sentence. This would obviously be most appropriate in cases where an accused is unrepresented at the appellate level, as there is less concern about intruding upon a party’s strategic choices in framing the issues. Similarly, the risk of creating an apprehension of bias is diminished where the accused is unrepresented, as courts have historically taken extra measures to ensure that all available avenues have been considered by such an accused.
19 I emphasize also that in R. v. Shropshire, [1995] 4 S.C.R. 227, and M. (C.A.), this Court held that a variation of sentence (after leave to appeal has been granted) should only be made by an appellate court if the sentence imposed is “clearly unreasonable” or “demonstrably unfit”, these two standards in my view meaning the same thing. In Shropshire, the Court concluded (at para. 50) that unreasonableness in the sentencing context refers to an order falling outside the “acceptable range” of sentences under similar circumstances. In an adversarial system, it seems logical to assume that if no appeal against sentence is taken, neither of the parties found anything “clearly” unreasonable in it. I caution, therefore, that appellate courts should be wary of raising the issue of a sentence appeal unless the sentence is so clearly unreasonable or demonstrably unfit as to indicate possible oversight on the part of counsel or an unrepresented accused.
20 I realize this may at first seem contradictory in that appellate courts are asked not to conduct sentence reviews proprio motu, and yet may inquire as to whether the absence of an appeal is an oversight if they believe that the sentence, upon an initial review, is “clearly unreasonable”. In order to resolve the conundrum, I stress that a preliminary assessment of the appropriateness of a sentence can be made rather easily during a conviction appeal. In my view, it would be possible for an appellate court conducting a conviction appeal to form a preliminary opinion that a sentence appears to be clearly unreasonable or demonstrably unfit. In such cases the remedy of a sentence appeal could be raised with counsel or suggested to a self-represented accused in oral argument. A full-fledged review of sentence would be inappropriate in the absence of an appeal.
21 To that end, in my view the Court of Appeal’s comments here that it felt “unease” and “discomfort” over the period of incarceration handed down to the respondent were in error for two reasons: first, the court went beyond merely raising the matter of a sentence appeal with counsel (it actually ordered the parties to return and present submissions); second, the language used does not indicate that the appropriate threshold was met for raising the issue of a sentence appeal. The possibility of mere disagreement over the sentence awarded does not warrant unilateral intervention by an appellate court. Admittedly, the Court of Appeal did not purport to undertake a full-fledged sentence review. It certainly did not make an order as to sentence substituting its view for that of the sentencing judge. However, in effect, additional comments made by the Court of Appeal indicate that it had embarked on a de facto sentence review.
22 The Court of Appeal clearly indicated its opinion that the sentence imposed by the sentencing judge was too high. Indeed, the Court of Appeal concluded that the transcript of evidence provided three reasons for its unease and discomfort over the four-year sentence imposed (at p. 150):
They center on the nature of the dysfunctional relationship, the apparent severity of the sentence in comparison with misgivings over the extent of the actual violence and injury involved, and the absence of any apparent need for the sentence to specifically deter G.W. from recidivism.
23 Notwithstanding the foregoing comments, in ordering the parties to return to present argument on sentence, the Court of Appeal attempted to make clear that it would remain unbiased and consider the Crown’s submissions that the sentence was appropriate. However, an objective observer would, I think, find it difficult to believe that this panel of the court would affirm the sentence imposed, despite what efforts the Crown might bring to bear in that regard. The court’s clear indication of displeasure raises a concern about apprehension of bias in the court.
VI. Conclusion and Disposition
24 To summarize, in my view the Court of Appeal erred in the following respects:
1. In the absence of a sentencing appeal, the Court of Appeal had no inherent jurisdiction which could support an order that the parties return to make submissions on sentence.
2. The Court of Appeal’s reasons for judgment, which speak of an “unease” and “discomfort” with the sentence imposed, indicate that the necessary threshold for raising the issue of a sentence appeal with counsel was not met. Courts should refrain from raising the issue unless, after reviewing the conviction appeal, there is some preliminary indication that the sentence is “clearly unreasonable” or “demonstrably unfit” in the sense of being outside the acceptable range.
3. The Court of Appeal conducted what amounted to a de facto sentence review which was inappropriate, especially in the context of an order that the parties return in one week’s time to make submissions on sentencing.
25 Therefore, this Court having already allowed the appeal and quashed the order of the Court of Appeal that would have the parties return to make sentencing submissions, the respondent’s application for leave to appeal the sentence should proceed before a differently constituted panel of the Court of Appeal.
The reasons of L’Heureux-Dubé and Gonthier JJ. were delivered by
L’Heureux-Dubé J. – The issue in this appeal is whether a Court of Appeal has jurisdiction to hear an appeal against sentence where no leave to appeal has been sought.
26 I agree with the Chief Justice that the law on this issue is clear: the Court of Appeal has no jurisdiction to review a sentence proprio motu.
27 In this case, not only did the Court of Appeal err in invoking its alleged “inherent jurisdiction” to review the sentence and ordering the parties to return to make submissions on sentence, but it commented as follows on the issue of sentencing:
While a complainant’s motivation per se is not a factor directly impacting on the fixing of an appropriate sentence, it may be, nonetheless, a circumstance that has the potential for indirect effect. Where the evidence clearly shows, as it does in the case at bar, that the complaint was laid in retaliation for actions unrelated to the crimes, there is cause to inquire in the course of fixing a just sanction commensurate to the offences whether the impact of the crimes was as serious as represented by the victim. In such a circumstance, a perusal of the record is warranted for indicia of exaggerations by the complainant.
. . .
In this case, the perusal does leave scope for unease as to the actual extent of the episodic violence and injuries. It is fully appreciated the violent and threatening acts of which G.W. stands convicted must attract punishment. However, the penalty has to be appropriately commensurate to his offences. The jury’s verdicts speak to his culpability, but not to its degree. . . . [I]t has to be said that the transcript’s descriptions of the extent of S.M.’s injuries do not entirely support the magnitude of the abuse she alleges in her testimony to have suffered in the course of the unhealthy relationship.
. . .
A final factor ascertainable from the transcript which adds to the feeling of extreme discomfort over the length of the sentence is that the need for specific deterrence in this case appears negligible, or even non-existent, with the ending of G.W.’s relationship with S.M. and his entering a new one.
((1998), 163 Nfld. & P.E.I.R. 132, at pp. 149-50)
28 In the absence of jurisdiction to entertain a sentence appeal, the Court of Appeal was clearly wrong to comment on the adequacy of the sentence. The comments attract, as the Chief Justice points out, a reasonable apprehension of bias, all the more so since such comments may be perceived as reflecting myths and stereotypes about complainants in sexual assault cases. (See R. v. Seaboyer, [1991] 2 S.C.R. 577, at pp. 604 and 630, per McLachlin J., and at p. 651, per L’Heureux-Dubé J.; R. v. Osolin, [1993] 4 S.C.R. 595, at p. 670, per Cory J.; R. v. Esau, [1997] 2 S.C.R. 777, at pp. 814-15, per McLachlin J.; R. v. Ewanchuk, [1999] 1 S.C.R. 330, at pp. 374-78, per L’Heureux-Dubé J.; K. Mack, “‘You should scrutinise her evidence with great care’: Corroboration of women’s testimony about sexual assault”, in P. Easteal, ed., Balancing the Scales: Rape, Law Reform and Australian Culture (1998), 59; R. Mohr, “Sexual Assault Sentencing: Leaving Justice to Individual Conscience”, in J. Roberts and R. Mohr, eds., Confronting Sexual Assault: A Decade of Legal and Social Change (1994), 157; M. R. Burt, “Rape Myths and Acquaintance Rape”, in A. Parrot and L. Bechhofer, eds., Acquaintance Rape: The Hidden Crime (1991), 26; R. T. Andrias, “Rape Myths: A persistent problem in defining and prosecuting rape” (1992), 7:2 Criminal Justice 2; Federal/Provincial/Territorial Working Group of Attorneys General Officials on Gender Equality in the Canadian Justice System, Gender Equality in the Canadian Justice System: Summary Document and Proposals for Action (1992); E. A. Sheehy, “Canadian Judges and the Law of Rape: Should the Charter Insulate Bias?” (1989), 21 Ottawa L. Rev. 741; D. Archard, Sexual Consent (1998), at p. 131.)
29 In the result, I agree with my colleague’s disposition of the appeal.
Appeal allowed.
Solicitor for the appellant: The Department of Justice, St. John’s.
Solicitor for the respondent: The Newfoundland Legal Aid Commission, St. John’s.