Aug 1, 2018

R. v. McDonald, 2018 ONCA 369 - Summary

R. v. McDonald, 2018 ONCA 369 (CanLII)

A person convicted of an offence can, in some circumstances, be declared a dangerous offender. This can only be done after a hearing on the matter. In addition, s. 7 of the Canadian Charter of rights and freedoms provides that "[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." As such, the hearing (which could impact the offender's liberty) needs to respect the principles of fundamental justice. Similar procedural protections are found in s. 11d) of the Charter, which provides for a "fair and public hearing by an independent and impartial tribunal".

Here, the offender did not receive the opportunity to make oral submissions regarding whether or not he should be declared a dangerous offender. The judge asked for written in lieu of oral arguments. The Court of Appeal for Ontario considered that as such the offender "was denied the right to make oral submissions at the close of his dangerous offender hearing." (par. 34) This could or could not be a problem, depending on whether there is some right to make oral submissions recognised in the principles of fundamental justice.

Canadian caselaw includes the right to make oral submissions under the larger umbrella of procedural fairness, itself a principle of fundamental justice and a requirement to the fairness of the tribunal. Its content is context-specific: the higher the stakes, the higher the procedural protections afforded. (See generally par. 37-39) Here, the Court concludes that for dangerous offender hearings, given that they entail a potential for "significant deprivation of liberty", "[s]ubject to the right of the parties to agree otherwise, the closing arguments must therefore include oral submissions, held in open court, in the presence of the accused, counsel, the trial judge and the court reporter." (par. 41)

The Court could have resolved the sentence appeal on this point. This case is noteworthy, however, because it goes on to explore the appellant's second argument, providing important remarks on the interaction between written arguments and s. 650 of the Criminal Code, which provides that "an accused [...] shall be present in court during the whole of his or her trial." The following paragraphs, reproduced in full, provide guidelines to follow:
"[45] In holding that counsel for the appellant was entitled to make oral submissions in the presence of the appellant, I do not suggest that the trial judge could not require written submissions as a first step in the argument process. It is now common practice in the criminal courts to require written submissions, not only at the end of the evidence in judge alone cases, but also in respect of various evidentiary motions, or pre-charge discussions held before or during trial. In those cases, written argument is used, not in lieu of oral argument, but in addition to and usually as a precursor to oral argument.
[46] If a trial judge requires written argument as a first step in the argument process, the trial judge must allow counsel, after a written argument has been exchanged, to make oral arguments in the presence of the accused to supplement, correct, or otherwise amplify the written argument. The trial judge, of course, controls oral argument as he does other facets of the trial. The right to make oral submissions is not the right to repeat what has already been said in written or oral submissions, or to otherwise waste valuable court time. Counsel may, of course, agree to waive oral argument either entirely or as a supplement to written argument.
[47] In the normal course, when a trial judge requires written submissions and allows counsel the opportunity to make additional oral submissions in the presence of the accused, procedural fairness requirements and the accused’s right to be present throughout his trial will be satisfied by the combination of written and oral argument. The trial judge is entitled to assume that counsel has taken the steps necessary to ensure that the accused, to the extent that he or she wishes to do so, has had the opportunity to review the submissions with counsel and participate in the formulation of defence submissions.
[48] Circumstances may arise, however, in which the accused does not have the opportunity to review written submissions with counsel and participate in the preparation of oral submissions. When counsel for an accused brings those circumstances to the attention of the trial judge, the trial judge must take the appropriate procedural steps to ensure procedural fairness and to protect the accused’s right to be present at trial. In some cases, it may even be necessary to require that the submissions be made orally and without regard to any prior written submissions that were filed.
[49] The trial judge has discretion to decide how best to address the kinds of problems referred to above. This discretion, however, must be exercised in a manner that protects the fairness of the proceeding. Experience indicates that in the vast majority of cases there will be no problems. Written argument coupled with the opportunity to make additional oral submissions after written argument has been exchanged and filed will suffice."