His Majesty the King v. Abdelrazzaq, 2023 ONCA 231

COURT OF APPEAL FOR ONTARIO

DATE: 20230404 DOCKET: C69696

Doherty, Favreau and Copeland JJ.A.

BETWEEN

His Majesty the King Appellant

and

Abdallah Abdelrazzaq Respondent

Counsel: James D. Sutton and Genevieve McInnes, for the appellant Ewan Lyttle, for the respondent

Heard: August 9, 2022

On appeal from the sentence imposed on June 23, 2021, by Justice Trevor A. Brown of the Ontario Court of Justice, with reasons released on July 6, 2021.

REASONS FOR DECISION

[1] In reasons released on February 22, 2023, and reported at 2023 ONCA 112, this court allowed the Crown’s appeal and set aside the trial judge’s finding that the fine in lieu of forfeiture provisions in the Criminal Code, R.S.C. 1985, c. C-46, were unconstitutional. In its reasons, the court asked the parties for written submissions on two issues:

• Does this court have jurisdiction to remit the question of sentence to the trial court?
• If the court addresses the merits of the sentence appeal, should the court impose a fine in lieu of forfeiture and, if so, on what terms and conditions?

[2] The parties have very helpfully filed joint submissions in response to both questions.

This Court’s Jurisdiction

[3] We accept counsel’s submission that this court does not have jurisdiction on a sentence appeal under s. 687 of the Criminal Code to remand the matter for sentence to the trial court. The section gives the court two choices. The court may allow the appeal and vary the sentence, or the court may dismiss the appeal.

[4] Counsel brought to the court’s attention R. v. A.S., 2010 ONCA 441, 258 C.C.C. (3d) 13, a brief endorsement by a panel of this court indicating, without explanation, that a matter could be remitted to the trial court for sentencing. That decision contains no analysis of the relevant statutory provisions and makes no reference to the earlier decision of this court holding to the contrary: see R. v. Kakekagamick (2006), 81 O.R. (3d) 664 (C.A.), at para. 60.

[5] A.S. must be read as overtaken by several subsequent decisions of this court, holding after an analysis of the relevant provisions, that this court has no jurisdiction on a sentence appeal to remit the matter of sentence to the trial court: see R. v. Monckton, 2017 ONCA 450, 349 C.C.C. (3d) 90, at paras. 103-105; R. v. Montesano, 2019 ONCA 194, 145 O.R. (3d) 474, at paras. 17-20, leave to appeal refused, [2019] S.C.C.A. No. 148; and R. v. Macintyre-Syrette, 2018 ONCA 259, 46 C.R. (7th) 78, at para. 25. Other appellate courts have come to the same conclusion: see Levasseur v. The Queen, 2022 QCCA 286, at para. 12; R. v. Pahl, 2016 BCCA 234, 336 C.C.C. (3d) 221, at para. 85; R. v. Perrier, 2009 NLCA 1, 282 Nfld. & P.E.I.R. 171, at para. 12; R. v. Cromwell, 2005 NSCA 137, 238 N.S.R. (2d) 17, at para. 25; and R. v. G.W.C., 2000 ABCA 333, 89 Alta. L.R. (3d) 217, at para. 28. [1]

[6] The parties have also referred to s. 46.1 of the Supreme Court Act, R.S.C. 1985, c. S-23. That section expands the power of the Supreme Court of Canada to include remanding a matter back to the trial court for further proceedings. This power includes further proceedings on sentence: see House of Commons Debates, 35-1, Vol. 5 (4 October 1994) at 6520 (Hon. Sue Barnes). This section has no application to provincial appellate courts.

What Order Should be Made?

[7] On the second issue, counsel have agreed that, in light of the court’s determination that the fine in lieu of forfeiture provision is constitutional, this court should impose a fine in lieu of forfeiture on Mr. Abdelrazzaq. The parties agree that the fine should be in the amount of $74,560, the amount of the “buy money” provided to Mr. Abdelrazzaq by the police agent in the relevant drug transactions. The parties further agree that Mr. Abdelrazzaq should receive the minimum statutory term of imprisonment (18 months) if he does not pay the fine. Finally, they agree that he should have ten years from the date this court imposes the fine to pay the fine.

[8] Counsel’s submissions are reasonable in the circumstances and this court is prepared to impose the sentence proposed by counsel. An order should go imposing a fine in lieu of forfeiture in the amount of $74,560. In default of payment of the fine, Mr. Abdelrazzaq is sentenced to a term of imprisonment of 18 months. Mr. Abdelrazzaq will have ten years to pay the fine.

[9] There may be other terms which are required to be included in a fine in lieu of forfeiture order, or there may be other terms, which counsel think advisable. The court would ask counsel to agree upon and submit a draft fine in lieu of forfeiture order for the court’s consideration.

“Doherty J.A.”

“L. Favreau J.A.”

“J. Copeland J.A.”

[1] The Supreme Court of Canada has commented in two cases on the power of the provincial appellate courts to remit a matter to the trial court on a sentence appeal. Those comments suggest the question may be open in that court. In R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 27, Cromwell J., for the court, said, “the predominant view is that there is no authority in the court of appeal to remit the matter to the trial judge for a new sentencing hearing.” Almost ten years later, Moldaver J., for the majority in R. v. Nahanee, 2022 SCC 37, at para. 61, indicated he would not “foreclose the possibility” that in “rare cases” an appellate provincial court could order a fresh sentencing hearing.