Tuesday, July 9, 2013

A Court must allow submissions to be made on material issues

R. v. Cook, 2013 ONCA 467 is a good source for the principle that where a material issue is before the Court there must be opportunity given to address that issue.  A Court is not required to allow endless argument however it is an error to refuse an opportunity to make submissions:


[35]       The appellant challenges his long term offender designation, particularly the 10-year community supervision order imposed by the trial judge.  He submits that he was denied the right to make submissions on whether the requirements of the long term offender provisions of the Code had been met, specifically, whether the offence of criminal harassment constitutes a "serious personal injury offence" as defined under s. 752 of the Criminal Code.  As a result, the appellant contends, he was denied procedural fairness at his sentencing hearing.


[36]       We accept this submission.  The record reveals that from the outset of the Crown's long term offender application, defence counsel signalled her intention to argue that none of the offences charged constituted a "serious personal injury offence".  While other issues were addressed throughout the ensuing multiple court appearances before argument of the Crown's application, argument of this threshold issue did not take place.  Yet, the transcript reveals that when the trial judge eventually delivered his ruling, after a two-month adjournment of the proceedings, on whether the criminal harassment convictions constituted serious personal injury offences, he mistakenly believed that defence counsel had already made her submissions on this issue.  He therefore denied her request for an opportunity to address the issue.


[37]       With respect, this was an error.  Neither the Crown nor the defence had made submissions on this issue before the trial judge's ruling.  The appellant's right to hearing fairness was thereby fatally compromised.  Consequently, the sentence imposed as a result of the flawed sentencing hearing, including the appellant's long term offender designation and community supervision order, cannot stand.

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