R. V. Pahl: Determining A Sentence's Fitness On Appeal

In a sentencing appeal, the British Columbia Court of Appeal in R v. Pahl split on the issue of how to properly determine whether a sentence was fit in the context of disputes over the admissibility of evidence at the sentencing level. The majority found that, as an appellate court cannot return a matter to the trial-level for re-sentencing, a judge (other than the sentencing judge) should be appointed as "special commissioner" and should make further necessary findings of fact and then return the matter to the appellate court to make the final sentencing decision. The dissent would not have remitted the matter to a special commissioner and would have instead decided the appeal on the basis of the admissible evidence.

Facts

The respondent had used his position as an airport screener at Vancouver International Airport to bypass security checks and help deliver large quantities of illegal drugs to a courier who was about to smuggle those drugs into the United States. The respondent pleaded guilty to a charge of possessing drugs for the purpose of exportation.

The respondent's explanation for why he committed the offence was that he was coerced by an unnamed individual. Although the respondent did not testify at the sentencing hearing, his explanation was advanced via a psychologist's report, based on information provided to the psychologist by the respondent. While the respondent's counsel submitted that the statements made to an undercover police officer - where the respondent said that he had smuggled drugs on four previous occasions - were mere "bravado", the Crown submitted that this should be an aggravating factor.

The sentencing judge accepted the respondent's explanation that he was coerced into committing the offence, and he was correspondingly sentenced to eight years' imprisonment. The Crown sought to appeal the sentence, submitting that the sentencing judge erred in principle in accepting the respondent's explanation.

Majority: Appoint a Special Commissioner

Writing for the majority, Justice Frankel noted that, when the evidentiary disputes arose regarding the respondent's explanation for committing the offence, the sentencing judge should have held an evidentiary hearing:

[53] In my view, the sentencing judge erred in principle in accepting Mr. Pahl's explanation for why he committed the offence as there was no admissible evidence to support that explanation. When the factual disputes arose at sentencing, an evidentiary hearing...

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