Deference?

Should the idea that appellate courts owe deference to lower courts in some areas apply to sentencing? I think not, but the Supreme Court of Canada (with only Fish J dissenting) has held that it does: R v LM [2008] SCC 31 (29 May 2008).

Deference, when accorded by a higher court to a lower court, is an acknowledgement that the lower court is better placed to decide the point. It is often – indeed, usually – applied to determinations of questions of fact: if a judge has seen and heard the witnesses, an appellate court will be slow to depart from the findings of credibility and of fact made by that judge. There may be times when it can be shown that the judge drew inferences that were not justified, or that there was insufficient evidence to support the findings of fact, but generally the deferential approach is appropriate.

Sentencing is a process that applies once facts have been found. The judge can set out the facts and an appellate court can give the judge due deference on those. But that should be the extent of deference. Deference should not apply to the sentencing judge’s perception of how serious the particular offending is in the context of other cases, and of what weight to give matters of aggravation and mitigation. This is why appellate courts lay down a process of reasoning for sentencing judges to follow: fix a starting point taking into account the seriousness of the overall offending, including matters that aggravate or mitigate that seriousness, having regard to decided cases and the purposes and principles that statute requires to be considered, and then take into account matters personal to the particular offender, to increase or decrease the final sentence that is imposed, again with guidance from decided cases. This method helps to promote consistency, while at the same time it recognises that identical cases will be unlikely to occur. It also enables an appellate court to identify errors of principle and unreasonable assessments of the appropriate sentence. It is inaccurate (notwithstanding dicta to the contrary) to describe the sentencing judge as exercising a wide discretion if that is taken to mean that an appellate court will not be alert to identify errors: the judge’s choices must be made according to law.

But in LM the majority claimed to be endorsing deference:

“35 This exercise of ensuring that sentences are similar could not be given priority over the principle of deference to the trial judge’s exercise of discretion, since the sentence was not vitiated by an error in principle and the trial judge had not imposed a sentence that was clearly unreasonable by failing to give adequate consideration to certain factors or by improperly assessing the evidence ….”

Perhaps, however, the position is not as bad as this “deference” might suggest, because there is a non sequitur here: the appellate court does not defer when deciding whether the trial judge was wrong in principle, or whether the sentence was clearly unreasonable, so the appellate court is in reality giving priority to the exercise of ensuring that sentences are similar, while saying here that it isn’t.

To give deference to an exercise of discretion, while at the same time checking that it is not in error in principle or unreasonable, is a very artificial sort of deference. Fish J (agreeing on everything except the deference point) pointed to the function of the court of first appeal:

“69 Courts of Appeal are indeed bound to recognize that trial courts enjoy a broad discretion in sentencing matters. But they are required to intervene where the sentence imposed at trial is shown to be unfit, within the meaning of the decided cases. And in reviewing their decisions on a recognized ground, we should remain mindful that provincial Courts of Appeal are endowed in sentencing matters with a supervisory jurisdiction that this Court is not meant to share. As Lamer C.J. put it in M. (C.A.) 1996 CanLII 230 (S.C.C.), [1996] 1 S.C.R. 500, at para. 92: “Appellate courts . . . serve an important function in reviewing and minimizing the disparity of sentences imposed by sentencing judges for similar offenders and similar offences committed throughout Canada.””

He had also held,

“64. Parliament has now recognized in s. 718.2(b) of the Criminal Code that parity is a principle that trial judges must consider in determining a fit sentence. Failure to do so adequately thus amounts in itself to a reviewable error in principle: appellate intervention does not depend, in my respectful view, on the existence of an additional error in principle as well.”

The Supreme Court did not explore in detail the Quebec Court of Appeal’s treatment of the facts, where it apparently found some reason to materially differ from the trial judge’s findings. That difference was the reason the majority in the Court of Appeal would have reduced the sentence in this case. The Supreme Court’s approach, emphasising deference, leaves unresolved the issue of whether the trial judge’s findings of fact were supported by the evidence.

The case does make some other points: a maximum sentence is not reserved for only the most serious cases imaginable, and the post-imprisonment period on supervised parole is not relevant to determination of the duration of the relevant sentence of imprisonment.