Case: R. v. Gashikanyi, 2017 ABCA 194 (CanLII)
Keywords: Sentencing; Stare Decisis; “non-random assignment”
Note: This case has a Restriction on Publication as follows:
Restriction on Publication
Identification Ban – See the Criminal Code, section 486.4.
By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any way.
NOTE: This judgment is intended to comply with the restriction so that it may be published
Two young women run away from home. The Respondent, age 33, spots the young women, ages 14 and 18 (the latter her cousin) at a bus stop. The Respondent offers to take them to his home and feed them. All three spend the night with the Respondent. He twice has protected sexual intercourse with each young woman and, the following morning, further and unprotected intercourse with the fourteen year old. (See para. 55).
The Crown appeals a sentence of two years less a day plus 12 months’ probation for sexual interference with a minor. The Crown relies on R. v. Hajar, 2016 ABCA 222 (CanLII), which it argues establishes three years as the starting point for sexual interference by an adult offender with no prior record.
The Crown maintains appellate courts must follow their own precedents and that “subject to a few exceptions or procedures, appellate authority binds all judges and panels of that court”. (See para. 2, as quoted from R. v. Arcand, 2010 ABCA 363 (CanLII) at paras. 185-186).
Berger J.A. disagrees, finding Hajar was wrongly decided. Read as a whole, the reasons of the sentencing judge (which deviate from the three year starting point established in Hajar) expose no error justifying appellate intervention. The sentence imposed is not demonstrably unfit.
Berger J.A. found that, when the liberty of the subject is involved, the doctrine of stare decisis is not as rigidly applied. (See para. 8). In other words, there is an overarching principle governing the reasoning process of a judge: jurists can and should follow their legal conscience. Berger J.A.’s reasons in this regard are stated in paras. 4-12 of the judgment.
One consequence of Berger J.A.’s finding is that there is no need to rigidly adhere to the Court’s decision in Hajar. Berger J.A. provided a detailed, alternative justification for not applying Hajar as follows:
- “The majority in Hajar misapprehended, misconstrued or simply overlooked the Reasons of the sentencing judge, rendering problematic the precedential value of the majority decision.” (See para. 2, 45-48).
- “The majority judgment rests upon a precarious legal foundation and erroneous assertions and propositions which, in the result, fail to satisfy the test for a rationally designed starting point that provides meaningful guidance to sentencing judges.” (See paras. 2, 19)
- “A judicially imposed starting point in this jurisdiction constrains the ‘wide latitude’ and ‘broad discretion’ accorded to sentencing judges by the Supreme Court of Canada, stifles that sentencing discretion and results in a chilling effect on the ability of sentencing judges to craft individualized dispositions.” (See para. 2, 16-36).
In addition to Berger J.A.’s decision with respect to the fitness of the sentence imposed as against the Respondent or the soundness of the majority’s reasons in Hajar, of note are the observations he made with respect to the assignment of judges to sentencing panels.
Berger J.A. set out that protocol for the random assignment of judges to sentence appeal panels is not followed. The failure to do so results in a lack of diversity of opinion and the risk that judges are perceived as being selected based on how they might rule. (See paras. 3, 68-75).
He also states:
 The presence of individual discretion in a system of assignment poses a risk that some may think that panelists will be selected based on their perceived predispositions. An appellate court that utilizes discretionary non-random methods to assign (or to replace an assigned judge) leaves open the potential for manipulation. It is this potential that is problematic because, even if manipulation is not actually occurring, the lack of objective guarantees or protections against such abuse can breed suspicions or perceptions of want of impartiality, thereby eroding the integrity of, and public confidence in, the administration of justice.
 Judges are no different than butchers, bakers, and candlestick makers. All are human beings with different backgrounds and life experiences, different views of the world, and different philosophies.
 Differing perspectives and insights on complex and difficult legal issues find expression when all members of an appellate court are afforded an equal opportunity to contribute to its jurisprudence. Failure to do so suppresses meaningful debate and, in so doing, impedes the healthy development of the law. On the other hand, the articulation of competing viewpoints contributes to the wisdom and richness of a court’s opinions which, in turn, provide justification and respect for the binding nature of its judgments. The adoption of and adherence to a protocol of random assignments sends a clear message of a court’s commitment to diversity of opinion and its determination to safeguard and enhance the integrity of its jurisprudence.
 Publicly accessible records of this Court demonstrate that the failure to implement and adhere to an objective protocol for the random assignment of judges has resulted in significant discrepancies in both the number of sentencing panels on which some judges of the Court sit and a marked difference in the number of sentence appeals heard by certain justices of the Court as compared with their colleagues. The result is a disproportionate opportunity afforded to certain judges to shape the jurisprudence of the Court.
 The inherent risk flowing from such non-random assignments is the perception, whether accurate or not, that the jurisprudence of the Court over time may be skewed by doctrinal considerations. The risk is that diversity of opinion, so vital to the healthy development of the law, may be relegated to the occasional murmur, particularly so if the very same judges who sit on a majority of sentence appeals insist on inflexible adherence to horizontal stare decisis and maintain that their judgments, being “first at bat”, must be followed by their colleagues.
One does not see such directness that often.
Counsel for the Appellant: Julie Morgan (Department of Justice and Solicitor General, Calgary)
Counsel for the Respondent: André Ouellette (Blumer Ouellette Sirois LLP Criminal Trial Lawyers, Calgary)