Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

This Week at the SCC

On Friday, Nov. 12, 2021, the Supreme Court of Canada is releasing its decision in R. v. Parranto & Felix. At issue is whether it’s appropriate for a Court of Appeal to set starting points for sentencing.

The appeal involves companion cases. In the first, a police search of Parranto on arrest and searches of his residence found fentanyl, other drugs, cash, weapons and drug paraphernalia. Parranto pleaded guilty to 8 offences, including two counts of wholesale trafficking in fentanyl. On the two counts of wholesale trafficking in fentanyl, he was sentenced to 4 years and 5 years consecutive. In the second, Felix sold fentanyl and cocaine in six transactions to an undercover cop. Felix pleaded guilty to four offences, including two counts of wholesale and commercial trafficking in fentanyl. On the counts of trafficking in fentanyl, Felix was sentenced to two 7-year terms concurrent.

On appeals from the sentences, the Court of Appeal established a starting point of 9 years for sentences for wholesale trafficking in fentanyl. It sentenced Parranto to two 7-year terms consecutive for trafficking in fentanyl and Felix to two 10-year terms concurrent for trafficking in fentanyl.

Last year in R. v. Friesen, 2020 SCC 9, the Court dealt with starting points for sentencing sexual offences against children. The SCC allowed the appeal and overruled a Court of Appeal that had found the sentencing judge erred by applying a starting point. The SCC took the approach that sentencing ranges and starting points are guidelines, not hard and fast rules. Appellate courts cannot treat the departure from or failure to refer to either as an error in principle. However, the Court declined to address the concerns about starting points generally and said the issue would need to be dealt with in an appropriate case.

Parranto and Felix say that this appeal is the appropriate case for clarity on starting points in sentencing. They argue that the function of creating and categorizing offences and assigning minimum and maximum sentences is properly the function of the legislative branch, not the judicial branch. The Crown, in response, defends the approach saying it’s a valuable tool and no more than a guideline for sentencing judges.

I’m leaning towards appeal allowed. I don’t see the SCC doing away with starting points, but they will emphasize the importance of not restricting a sentencing judge’s discretion. For the purpose of scoring this one, in the event the two cases end up with different results, I’ll focus on Parranto’s appeal.

Last SCC Decisions

H.M.B. Holdings Ltd. v. Antigua and Barbuda

  • On Nov. 4, 2021, the SCC released H.M.B. Holdings Ltd. v. Antigua and Barbuda, 2021 SCC 44. The five-judge panel of the Court unanimously dismissed the appeal.
  • The Court ruled that a foreign judgment against Antigua could not be enforced in Ontario. Antigua was not “carrying on business” in British Columbia, where the judgment was rendered, so the judgment could not be registered for enforcement in Ontario.
  • The appeal decision focuses on the interpretation of “carrying on business” in the Reciprocal Enforcement of Judgments Act. To determine whether a defendant is carrying on business in a jurisdiction, a court must inquire into whether it has some direct or indirect presence in the jurisdiction, accompanied by a degree of business activity that is sustained for a period of time.
  • Justice Côté, in concurring reasons, focused on the issue of derivative or “ricochet” judgments. The majority left the issue for another day.
  • 79% of players correctly predicted this outcome.

R. v. Cowan

  • On Nov. 5, 2021, the SCC released R. v. Cowan, 2021 SCC 45.
  • In a 5:2 decision, the Court dismissed Cowan’s appeal and allowed the Crown’s appeal. The result is a new trial.
  • The majority agreed with the Court of Appeal that the trial judge erred in law in his analysis of party liability. Where an accused prosecuted as an abettor or counsellor is being tried alone, and there is evidence that more than one person participated in the commission of the offence, the Crown is not required to prove the identity of the other participant(s) or the precise part played by each in order to prove the accused’s guilt as a party.
  •  However, the appropriate remedy is to set aside the acquittal and order a full new trial. Appeal courts may not limit the scope of a new trial to a particular theory of liability on a single criminal charge.
  • 83% of players correctly predicted this outcome.

-Tom Slade