CITATION: R. v. Singh, 2015 ONSC 904
COURT FILE NO.: CR-10-2123
DATE: 20150211
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Baldev Singh
Accused
Richard L. Pollock, for the Crown
No one appearing for the accused
HEARD: February 3, 2015
ruling on crown request to sentence in absentia
pomerance j.:
[1] On September 22, 2014, Baldev Singh was convicted of importing 69 kilograms of cocaine into Canada. This was the last time he attended court. He failed to attend the meeting with the probation officer who was to prepare a pre-sentence report; he failed to attend his sentencing hearing on December 5, 2014; and he failed to attend the subsequent hearing on February 3, 2015. His bail has been estreated. His sureties do not know where he is, and police are unable to find him. A warrant is outstanding for his apprehension. All indications are that Mr. Singh has absconded in order to avoid being sentenced by the court.
[2] The Crown seeks to have Mr. Singh sentenced, in absentia, to 15 years in jail. For the reasons that follow, I am not prepared to accede to this request.
[3] Where an offender absconds, the court can either conduct proceedings in the offender’s absence or adjourn proceedings until the offender appears. These options are reflected in s. 475(1) of the Criminal Code, R.S.C. 1985, c. C-46:
- (1) Notwithstanding any other provision of this Act, where an accused, whether or not he is charged jointly with another, absconds during the course of his trial,
(a) he shall be deemed to have waived his right to be present at his trial, and
(b) the court may
(i) continue the trial and proceed to a judgment or verdict and, if it finds the accused guilty, impose a sentence on him in his absence, or
(ii) if a warrant in Form 7 is issued for the arrest of the accused, adjourn the trial to await his appearance,
but where the trial is adjourned pursuant to subparagraph (b)(ii), the court may, at any time, continue the trial if it is satisfied that it is no longer in the interests of justice to await the appearance of the accused.
[4] The section creates an exception to the requirement that the accused be present at his or her trial. The operative question is whether it is “in the interests of justice” to proceed. This exception should be invoked sparingly, and only when the interests of justice create an imperative to continue despite the absence of the accused.
[5] Section 475 purports to govern both trials and sentencing hearings. It has been applied in both contexts. Offenders have been sentenced in absentia in various cases, including R. v. Correa, 2011 ONCJ 409; R. v. Maxwell, 2013 ONSC 5088; and R. v. Bayani, 2011 ONSC 5808. Every case is different, and the court must exercise its discretion based on the presenting circumstances. Nonetheless, I suggest that the interests of justice will usually manifest differently in the trial, as opposed to sentencing, context.
[6] First, where trial is concerned, a failure to continue will abort the proceedings, thereby wasting the judicial resources that have already been expended. An aborted trial will frustrate resolution of the criminal allegations. There is a strong societal interest in seeing that criminal trials, once commenced, are completed. Adjourning the proceedings may prejudice the Crown’s ability to prove its case, as witnesses may become difficult to find or otherwise unavailable. There is good reason to prevent the trial process from being hijacked by an offender flouting the jurisdiction of the court. As it was put in R. v. Tzimopoulos (1986), 1986 152 (ON CA), 29 C.C.C. (3d) 304, 54 C.R. (3d) 1 (ONCA) at para. 74, quoting from R. v. Czuczman (1986), 1986 2714 (ON CA), 54 O.R. (2d) 574 (Ont. C.A.):
An accused person should not be able to thwart the rights of others and of society by deliberately absenting himself from his trial. Balancing his rights against those of others and of society with respect to the trial, it is fair that the trial proceed and indeed, in my opinion, it offends a basic principle of fundamental justice if the trial must be aborted because the appellant absconds. In my view, s. 431.1(1) of the Code does not offend any right guaranteed by s. 7 of the Charter and this ground of appeal fails.
[7] The situation is different where, as here, the trial is complete, the offender has been found guilty, and all that remains is the determination of a fit sentence. The public interest in adjudication on the merits has been satisfied. There are no judicial resources subject to squander. The Crown will not be prejudiced by an adjournment because its position on sentence is based on the details of the crime, which have crystallized in the findings made by the court.
[8] Secondly, the factual parameters at a trial are different than those at a sentencing hearing. At trial, the issues are sufficiently well-defined that a just verdict can ensue in the absence of the accused. If the accused absconds, he or she forfeits the ability to contradict the crown’s evidence, or advance a positive defence. He or she may be subject to an adverse inference on factual issues. But the accused does not forfeit the right to put the Crown to the strict proof of its case. Whether or not the accused is present, the Crown bears the burden of proving the elements of the offence beyond a reasonable doubt. The court can assess the evidence that has been called, apply the governing legal principles, and determine whether that burden has been made out.
[9] Conversely, sentencing calls for a more holistic approach. The factual issues are more loosely defined, given the breadth, variety and complexity of information that might bear on penalty. The rules of evidence are relaxed in the sentencing context precisely so that the court can consider a broad swath of data.
[10] This is necessary to achieve proportionality, “the sine qua non of a just sanction”: see R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 at para. 37. Proportionality is the central objective of sentencing – enshrined in the case law, codified in s. 718.1 of the Criminal Code, and recognized as a principle of fundamental justice under s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11: see R. v. Safarzadeh-Markhali, 2014 ONCA 627, 122 O.R. (3d) 97; R. v. Anderson, 2014 SCC 41, [2014] 3 C.N.L.R. 267. Proportionality demands that the sentence reflect the gravity of the offence, and the moral blameworthiness of the offender. It must punish no more than is necessary. It must be based on a complete understanding of not only the crime, but the person who committed it, including his or her background, experience and other personal circumstances. It is trite to say that, subject to mandatory minimum penalties, sentencing is a highly individualized process.
[11] This has been consistently endorsed by the courts. In R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, 46 C.R. (4th) 269, the Supreme Court of Canada observed at para. 92:
It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.
[12] Similarly, in R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368 at 414, 30 C.R. (3d) 289, the Supreme Court stressed at para. 109 that “[the judge] 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”. In Ipeelee, at para. 79 it was observed that: “No two offenders will come before the courts with the same background and experiences, having committed the same crime in the exact same circumstances”. The background and experience of an offender may implicate any number of factual issues, including age, educational background, employment, financial circumstances, family responsibilities, community support, character, cultural background, proficiencies or disabilities, physical and/or mental health, likelihood of recidivism, amenability to treatment, cooperation with the authorities, and expression/level of remorse.
[13] In this case, I know little more than Mr. Singh’s age and the fact that he is before the court as a first offender.
[14] Unlike the situation at trial, informational gaps at a sentencing hearing cannot be resolved through the application of onus. Neither the Crown nor the offender bear a strict onus to prove that a particular penalty is fit. These parties may urge a particular penalty on the court, but it is ultimately the court’s responsibility to fashion a fit and appropriate disposition. This point was made by Moldaver J. in Anderson, at para.25:
Importantly, both Gladue and Ipeelee speak to the sentencing obligations of judges to craft a proportionate sentence for Aboriginal offenders. They make no mention of prosecutorial discretion and do not support Mr. Anderson’s argument that prosecutors must consider Aboriginal status when making a decision that limits the sentencing options available to a judge. Mr. Anderson’s argument in effect equates the duty of the judge and the prosecutor, but there is no basis in law to support equating their distinct roles in the sentencing process. It is the judge’s responsibility to impose sentence; likewise, it is the judge’s responsibility, within the applicable legal parameters, to craft a proportionate sentence. If a mandatory minimum regime requires a judge to impose a disproportionate sentence, the regime should be challenged. [Emphasis added.]
[15] The court also bears responsibility for ensuring that it has the information that it needs. For example, it is well settled that the court has a positive duty to gather information about an offender’s aboriginal heritage. As noted in R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, 23 C.R. (5th) 197 at p. 732 that: “ …even where counsel do not adduce this evidence, where for example the offender is unrepresented, it is incumbent upon the sentencing judge to attempt to acquire information regarding the circumstances of the offender as an aboriginal person.” This duty is not restricted to aboriginal offenders; it manifests in every case and is discharged in, among other ways, the directed preparation of pre-sentence reports. There are limits on how far a sentencing judge can legitimately stray into the evidentiary arena (see R. v. Hamilton (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1, 189 O.A.C. 90 (ONCA)), but it is open to a judge to refuse to sentence on a paucity of information when another option is available.
[16] The key concern in this case is the complete absence of input from the defence. Not only do I have no information about Mr. Singh, I have no submissions on behalf of Mr. Singh. Mr. Singh’s trial lawyer, quite properly, removed himself as counsel when Mr. Singh failed to attend court. The net effect of this is that the Crown is the only litigant before the court on the sentencing hearing. It is, functionally speaking, an ex parte process. The notion of ex parte sentencing is, in any case, troubling; all the more so when the Crown is seeking a double digit sentence in the penitentiary.
[17] The Crown submits that, by absconding, Mr. Singh has forfeited his right to have representations made on his behalf, or to have the court consider factors in mitigation of sentence. I cannot agree. Mr. Singh may have given up his right to have input, but he has not forfeited his right to a fit sentence. If the range of sentence is, as the Crown submits, 8 to 12 years, then the court must determine where, along that continuum, this case should fall.
[18] The Crown submits that, because of Mr. Singh’s failure to appear, he should be sentenced to a term at the highest end of the range. The Crown submits that, if Mr. Singh was present, he would warrant a term of 12 years in jail. In his absence, it is said that a sentence of 15 years is appropriate. However, it is not clear to me how this follows. First, absent information about Mr. Singh, I am not prepared to assume that the starting point for his sentence should be one of 12, as opposed to 8, years. The offence of importing cocaine into Canada is extremely serious, and calls for a significant term of imprisonment. However, if the range begins at 8 years, how can I assume that Mr. Singh is deserving of 12? I know very little about the offender, but I do know that he has no prior criminal record. It is even more difficult to understand how a sentence of 15 years in jail – three years longer than the recognized range - can be justified in the present circumstances. It seems that, in both instances, the Crown relies on the fact that Mr. Singh has absconded. This, it is said, justifies a starting point at the high end of the range, and a final sentence that falls beyond the range.
[19] One of the fallacies in the Crown’s approach is that it purports to treat the absconding behaviour as an aggravating factor on sentence. It is not an aggravating factor as it relates to Mr. Singh’s importation of cocaine. It negates certain mitigating factors. Mr. Singh is not entitled to credit for remorse. Nor can it be said that he has taken responsibility for his actions. But it does not follow that the sentence should be increased. The absence of mitigating factors must not be confused with the presence of aggravating factors. Mr. Singh’s failure to attend court is serious misconduct, representing an affront to the administration of justice. But it is a separate delict, representing a separate offence (s. 145 of the Criminal Code), for which Mr. Singh may receive separate punishment. To treat it as an aggravating factor on the importing offence is to risk imposing excessive punishment, and worse, double punishment. I am not prepared to assume that, because of his failure to attend court, Mr. Singh’s sentence should be the highest one imaginable.
[20] For all these reasons, I am not presently in a position to determine a fit sentence. To proceed would be to risk imposing a sentence that is unfit. That risk outweighs any nominal benefit that would accrue from sentencing Mr. Singh in his absence. The Crown relies on the public interest in enforcing the criminal law, and preventing an offender from evading the consequences of his conviction. That interest, while important, is only marginally vindicated by a sentencing in absentia. Whenever sentence is imposed, Mr. Singh will only confront his penal consequences when he is apprehended on the warrant. Until then, the value of the sentence will remain largely symbolic. Symbols can be important. A sentence imposed in absentia can educate the community about the consequences of crime and facilitate general deterrence. But there is little value in the symbolism that attaches to an unfit sentence. The public interest in the timely sentencing of offenders must be balanced against the public interest in proportionality. When these interests clash, it is proportionality that must prevail. It is far more important to be just than to be quick.
[21] I, therefore, dismiss the Crown’s application to have Mr Singh sentenced in absentia. I adjourn the proceedings until Mr. Singh is apprehended and brought before the court, or alternatively, until another mechanism is in place to allow more information to be placed before the court. One such mechanism might be the appointment of amicus curiae on the sentencing hearing. I am prepared to hear submissions from Crown counsel, and Mr. Singh’s former trial counsel, as to the suitability of this approach in the present case.
Original signed by Renee Pomerance
Renee M. Pomerance
Justice
Released: February 11, 2015
CITATION: R. v. Singh, 2015 ONSC 904
COURT FILE NO.: CR-10-2123
DATE: 20150211
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Baldev Singh
Ruling on crown request to sentence in absentia
Pomerance J.
Released: February 11, 2015