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The Defence Toolkit – June 28, 2025: Ares v. Venner and Expert Evidence

Charter 11(b) | Experts | Hearsay | Sentencing Principles

Posted On 28 June 2025

This week’s top three summaries: R v Willier, 2025 ABKB 370: Ares v Venner #Expert Evidence, R v Zabihullah, 2025 SKCA 64: 11(b) particular #complexity, R v Moazami, 2025 BCCA 189: trial #aggravating sentence

R v Willier, 2025 ABKB 370

[June 18, 2025] The Common Law Business Records Exception to Hearsay [Justice N. Whitling]

AUTHOR’S NOTE: Limits of the Business Records Exception in Criminal Cases

Ares v. Venner established a common law exception allowing business records to be admitted as hearsay without notice to the defence. However, many business records in criminal cases contain embedded expert opinions—such as those from doctors, nurses, or investigators.

In this case, the Court addressed the admissibility of expert opinion evidence within business records. It held that a true opinion, given by someone within their specialized expertise, cannot fall within the business records exception. Specifically, the opinions of a fire investigator regarding the fire’s point of origin, ignition source, and whether it was deliberately set were not admissible under the common law rule.

This reinforces that expert opinions must meet the stricter requirements of admissibility for expert evidence, including qualification and necessity, and cannot be admitted merely because they appear in a business record.

I. Introduction

[1] The accused, Darcy Victor Willier, stands charged on a 16-count Direct Indictment. The charges include 10 counts of arson contrary to ss. 433(a) and 434 of the Criminal Code, RSC 1985 c C-46. The parties and the court are presently engaged in a “Hart voir dire” in which the defence seeks to exclude certain statements made by the accused to undercover police officers pursuant to R v Hart, 2014 SCC 52.

[2] These reasons address an application by the Crown to admit a document currently marked as Exhibit ‘E’ for identification which contains a compilation of certain findings and conclusions drawn from 17 fire investigation reports prepared by 11 fire investigators employed by Edmonton Fire Rescue Services (“EFRS”). The defence objects to the admission of the opinions contained in this document on the basis that they constitute hearsay. The Crown acknowledges that the Crown did not provide the defence with notice of its intention to introduce the information contained in Exhibit ‘E’ as business records in accordance with s. 30(7) of the Canada Evidence Act, RSC 1985 c C-5. Consequently, the Crown relies upon the business records exception to the hearsay rule recognized inAres v Venner, [1970] SCR 608.

[4] To further complicate matters, the document now at issue, Exhibit ‘E’, contains information respecting 17 fires. Of those 17 fires, only 7 are encompassed by a count in the Indictment. The remaining 10 fires occurred at 5 of the 8 residences pleaded in the 10 arson counts. In other words, Exhibit ‘E’ contains information respecting 7 of the 10 fires in the Indictment, plus 10 fires that occurred at 5 of the same residences, but which are not the subject of any charge. Of those 10 “uncharged” fires, 7 of them occurred at a single residence, being the residence pleaded in Count 9.

[5] The practical significance of Exhibit ‘E’ to the matters at issue in this prosecution would appear to be limited to the information it contains with respect to the 10 “uncharged” fires. That is so since the complete fire investigation reports respecting the 7 fires that are encompassed by the Indictment have already been collected in a separate agreed-upon exhibit, being Exhibit ‘HVD-35’.

[6] The potential significance of the information contained in Exhibit ‘E’ respecting the 10 “uncharged” fires can only be understood in light of the other evidence in the record. That evidence includes statements made by the accused to undercover police officers while driving in northeast Edmonton on May 26, and June 12, 2022. On those dates, the accused directed the officers to each of the 8 residences pleaded in the Indictment and made certain statements claiming responsibility for fires at those residences.

[7] However, the accused’s statements to the undercover officers contained little or no information as to when the fires he was referring to had been set. This raises a proof problem for the Crown. Was the accused claiming responsibility for the particular fires pleaded in the Indictment? Or was he referring to some other fires that happened to have occurred at the same locations?

[8] As I understand the Crown’s position, the purpose of Exhibit ‘E’ is to assist in answering these questions. For the purposes of the present mid-trial application, the information in Exhibit ‘E’ could assist in assessing the probative value of the accused’s admissions to the undercover officers for the purposes of Hart. If later tendered as a trial exhibit (which is anticipated), it would be of potential assistance in determining whether the accused’s admissions referred to the fires encompassed by the Indictment or to some other fires. It bears emphasis that the information contained in Exhibit ‘E’ “cuts both ways”, in that it is of potential assistance to both the Crown and the defence.[Emphasis by PJM]

[9] Exhibit ‘E’ was tendered through Crown witness Dwayne Casavant. Mr. Casavant has been a Fire Investigator with EFRS since 2018 and was duly qualified as an expert in this area without objection by the defence….

[10] Mr. Casavant also confirmed that all fire investigators are required to file a fire report reflecting their conclusions. Fire investigators are trained in both the conduct of investigations and the preparation of their reports. Although there are no fixed rules as to the level of documentation required for a fire investigation report, fire investigators are generally expected to take photographs and to record their observations….

[11] Exhibit ‘E’ consists of some basic identifying information for each of the 17 fires, as well as the “narrative” sections from the 17 fire reports. Those narrative sections contain some factual observations respecting the fires, as well as some expressions of opinion such as the value of the damage caused by the fire, the fire’s point of origin, and whether the fire was deliberately set.[Emphasis by PJM]

[12] As an illustrative example, the tenth entry on Exhibit ‘E’ refers to a fire which is not encompassed by the Indictment, but which occurred at the same residence as the fire pleaded in Count 9. In addition to EFRS’s file number, that entry states that the fire occurred at “11738 91 ST”, at “7/26/2021 @ 05:37 AM”, and that the fire investigator was “R. RESLER”. It also includes the following narrative section:

This fire involved a single story house; the house was vacant with no utilities connected to the house. Damage was confined to the basement and was estimated at $30,000.00 dollars. The fire originated in the NE corner basement bedroom. This fire was determined to be deliberately set.

[14] Finally, it bears emphasis that the complete fire investigation reports from which Exhibit ‘E’ was derived have been disclosed to the defence, and the defence was given an adjournment to review those records prior to cross-examining Mr. Casavant. (See Kon Construction Ltd. v Terranova Developments Ltd., 2015 ABCA 249 at para. 46.)

IV.Analysis

[17] Since the Supreme Curt of Canada’s recognition of the business records exception to the hearsay rule inAres v Venner, the Court has recognized that the “principled approach” to hearsay must prevail in cases of conflict with the traditional exceptions. However, the traditional hearsay exceptions remain important since “in the clear majority of cases, the presence or absence of a traditional exception will be determinative of admissibility”: R v Starr, 2000 SCC 40 at para. 211.

[18] The extent to which the rule in Ares allows for the admission of opinion evidence has been the subject of some controversy.

[20] The issue was more squarely addressed in the English case of R v McGuire (1985), 81 C App R 323 (Eng CA). That case addressed the admissibility of a report prepared by a deceased fire investigator, which included both his observations as to the state of the scene of the fire, and also his opinion as to the fire’s point of origin. The English Court of Appeal admitted the observations at the fire scene but not the conclusion as to the point of origin since, among other reasons, “there was nothing mechanical or routine about the opinion” (p. 330). It may be noted that in R v West, [2001] OJ No. 3413 (SCJ) at para. 60, Hill J. suggested that McGuire may be inconsistent with the Supreme Court of Canada’s holding in Ares. [Emphasis by PJM]

[21] There is little doubt that Ares allows for the admission of some opinion evidence. Indeed, the only objection raised by Dr. Venner in that case was to those aspects of the nurses’ notes which reflected opinions as opposed to factual observations (see pp. 620-22). The matters of opinion found by the Supreme Court of Canada to be admissible in Ares included that “the plaintiff’s toes were numb, swollen and blue and that there was no movement in the toes….[Emphasis by PJM]”

[25] In the footnote accompanying the above passage from McWilliams, the authors cite R v Larsen, 2003 BCCA 18 in support of the proposition that expert opinions are admissible under the rule in Ares. In that case, the court found an autopsy report authored by a deceased pathologist to be admissible under that rule. On a careful reading however, the Court’s analysis was limited to an initial report which “consisted entirely of his findings and observations from the autopsy that he conducted on October 16th; he expressed no opinion as to the cause of death”. The admissibility of a supplemental autopsy report which expressed an opinion that the deceased had died from asphyxiation was not at issue since the cause of death was agreed upon (see paras. 10, 34-39). In my view, this case does not support the conclusion that Ares allows for the admission of out-of-court statements containing expert opinions as opposed to factual observations.

[26] The other case cited by the authors of McWilliams on this point is West. In that case, Hill J. (then writing in his judicial capacity), concluded at para. 63 that the above passage from the 1999 edition of The Law of Evidence in Canada is “correct”. In other aspects of his decision, he adopted a more nuanced approach:

63 There is of course a continuum of subjective opinonism with observations positioned at one end and conclusions clearly steeped in expert skills at the other. In some instances, observations of the expert declarant, while informed by a measure of special knowledge or expertise, are arguably little more than the expression of opinion permitted by a lay witness… On the other hand, some opinion statements are almost wholly the product of application of specialized skill and experience as in the hard science of forensic pathology… […]

64 It may be that, in a given case, the novelty of the science at issue, the high degree of subjectivism as in psychiatric assessment, or the centrality of the hearsay opinion to the ultimate issue in the proceeding, will attract application of the court’s residual discretion to exclude evidence whose prejudicial effect outstrips its probative value: McCormick on Evidence, supra at page 266, § 293.[Emphasis by PJM]

[27] The above approach from West is commended in Sankoff, Law of Witnesses and Evidence in Canada, at §14:37. Professor Sankoff goes on to quote the following passage from Bezanson v Sun Life Assurance Co. of Canada, 2015 NSSC 1 as reflecting “what appears to be the prevailing view of this matter”:

31 Ares v. Venner continues to stand for the proposition, in my view, that some simple observational opinions might be permitted to stand in business records. It should be noted that even lay persons are often permitted to opine in areas of common human experience (such as a person’s temperature (“warm to touch”), color (“flushed”), mood (“angry”), and so on). But a true opinion, given by a person within their area of special expertise, is not and could never be a business record. In particular, where the medical opinions are crucial and of utmost importance to the case, as they would be here, the Court needs to be assured of their reliability. Such opinions must be brought forward to the Court by their authors, defended, and properly tested by cross-examination.[Emphasis by PJM]

[Emphasis added]

[29] Having considered these authorities, I adopt the above passage from Bezanson, and I reach substantially the same conclusion as that reflected in McGuire.

[30] As the testimonies and curriculum vitae of the fire investigators in this trial confirm, fire investigation requires a significant amount of training and experience. Such matters as a fire’s point of origin, ignition source, and whether a fire was deliberately set, are matters that call for expert opinion. For these reasons, it has been recognized that laypersons are not generally permitted to provide evidence on these subject matters: Steveco Construction Ltd. v Saskatchewan Power Corp., 2023 SKKB 57 at paras. 45-47, aff’d 2024 SKCA 46 at paras. 37- 38.[Emphasis by PJM]

[32] For these reasons, I essentially agree with the position taken by the defence on this application. Exhibit ‘E’ is not admissible in its current form. The conclusions of fire investigators with respect to such matters as a fire’s point of origin, its ignition source, and whether it was deliberately set, are generally not matters that may be admitted under the business records exception in Ares.

[33] Having said that, there may be exceptions to this general rule. As an illustrative example to guide future argument, the second fire addressed in Exhibit ‘E’ is stated to have been caused by some food items being placed next to an energized toaster oven. The fire investigator’s conclusion as to that particular fire’s point of origin may have been so obvious as to have required little more than a visual observation. Like the nurses’ observations as to “blue toes” in Ares, this conclusion would likely be admissible. In contrast, the fire investigator’s conclusion that the fire was accidental would, if controversial, likely be inadmissible.

[34] With this guidance, I am hopeful that counsel will be able to reach agreement as to a revised version of Exhibit ‘E’ should the Crown wish to pursue the type of evidence it contains in the trial of this matter.

V. Conclusion

[35] In conclusion, the defence’s objection to the admission of Exhibit ‘E’ is sustained, and the Crown’s application to mark that document as a full exhibit on the Hart voir dire is denied.

R v Zabihullah, 2025 SKCA 64

[June 4, 2025] Charter 11(b): Particular Complexity [Leurer C.J.S., Caldwell J.A. and Bardai J.A.] 

AUTHOR’S NOTE: Delay Not Excused by Legal Uncertainty Alone

While Jordan allows for delays beyond the presumptive ceiling if a case is particularly complex, the Supreme Court made clear that even a typical murder trial would not necessarily qualify.

In this case, involving aggravated sexual assault and some legal uncertainty surrounding the constitutionality of ss. 278.92(1), 278.92(2)(b), and 278.94(2) (governing defence-held records in sexual offence trials), the Court found no exceptional complexity justifying delay.

There was no expert evidence or other features that would elevate the case’s complexity. The Crown failed to meet its burden to show an exceptional circumstance, and the delay beyond the Jordan ceiling was not justified.

 

[1] The Crown appeals an order made by a Court of King’s Bench judge staying charges against Mohammad Zabihullah because of a violation of his right to be tried within a reasonable time, as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms: R v Zabihullah (21 December 2023) Regina, CRM-RG-00360-2018 (Sask KB) [Delay Decision].

[3] Mr. Zabihullah was charged under an information sworn on May 7, 2018, in connection with offences alleged to have occurred, in one instance, between July 29 and 30, 2017, and on May 5, 2018, in another. After a preliminary inquiry held on October 10, 2018, Mr. Zabihullah was committed to stand trial on charges of assault, contrary to s. 266 of the Criminal Code, and aggravated sexual assault, contrary to s. 273. The trial was initially scheduled to take place on October 15 and 16, 2019 [First Trial Dates]. Due to a number of factors, Mr. Zabihullah’s trial was postponed many times and eventually set down for April 8–12, 2024.

[5] Under that structure, the judge found that the total delay between the laying of the information to the anticipated end of trial was 2,168 days (see Delay Decision at para 64). He subtracted from this total defence delay, which he determined to be 109 days, bringing the net delay to 2,059 days (see paras 72–73). After an extensive analysis, he identified three exceptional circumstances that had caused additional delay, being an adjournment due to the death of a member of Crown counsel’s family, the COVID-19 pandemic and the withdrawal by Mr. Zabihullah of a guilty plea in relation to one offence, which had caused the First Trial Dates to be vacated (see paras 74–109). Based on these events, the judge deducted 853 days from the net delay, with the result that the remaining delay in the case amounted to 1,206 days or the equivalent of 40 months and 6 days (see para 110). Finally, the judge rejected the Crown’s argument that some time should be factored into the overall delay analysis to account for the fact that this was a complex case (see paras 111–117). Taking all of this into consideration, the judge found that Mr. Zabihullah’s right to be tried within a reasonable time, as guaranteed by s. 11(b) of the Charter, had been violated, and he imposed a stay of proceedings with respect to the two charges before him.

[6] The Crown takes no issue with the judge’s general approach. Instead, in its factum it focuses on two errors he allegedly made.

[7] The Crown’s first argument….

….We see no reason to explore the intricacies of this submission because, even if the Crown’s argument had merit, accounting for the judge’s alleged error would still leave the time to trial above the presumptive ceiling set in Jordan by over four months….

[8] The Crown’s second argument is that the judge erred in his consideration of the complexity of the case. Its submission is that the judge “erred in law by imposing the incorrect legal standard in the case complexity determination”. The Crown emphasizes that the test is reasonableness, not perfection, referring to the statement given in Jordan that the Crown “is not required to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid the delay” (at para 70)….

[9] Unlike defence delay and discrete events, “case complexity requires a qualitative, not quantitative, assessment” (R v Cody, 2017 SCC 31 at para 64, [2017] 1 SCR 659). The Supreme Court has also emphasised that a determination as to whether a case’s complexity justifies a matter taking longer than the presumptive ceiling “falls well within the expertise of a trial judge” (Cody at para 64, referring to Jordan at para 79).

[10] A particularly complex case is one that, “because of the nature of the evidence or the nature of the issues, require[s] an inordinate amount of trial or preparation time” (Jordan at para 77, emphasis in original, see also Cody at para 64). Here, the judge explained why this case should not be considered to be sufficiently complex to justify exceeding the Jordan presumptive ceiling:

[113] The accused, Mr. Zabihullah, stands charged with one count of common assault, contrary to s. 266, and one count of aggravated sexual assault, contrary to s. 273 of the Criminal Code respectively. As counsel for Mr. Zabihullah quite correctly points out, at para. 100 of her brief, the Supreme Court of Canada, in Jordan, concluded that even a typical murder trial would not qualify as a complex case.

[114] The parties have had the benefit of a preliminary inquiry, and the trial of these allegations is estimated to take only two days; the Indictment lists only the complaint and one police witness, the case does not appear to be document intensive and there is no indication that any expert evidence will be proffered by either party.

[115] Counsel for the accused submits, and in the circumstances, I accept, that the only complicating issue in this case was the uncertainty surrounding the constitutionality of s. 278.92(1), 278.92(2)(b) and 278.94(2) of the Criminal Code.[Emphasis by PJM]

[11] We see no error in this part of the judge’s analysis and therefore can find no error in his bottom-line conclusion that the “present case, considered as a whole, simply does not rise to the threshold of a complex case as contemplated in Jordan” (Delay Decision at para 117).[Emphasis by PJM]

[26] In conclusion, we were unconvinced by the grounds of appeal advanced by the Crown in its factum to intervene in this matter. We were also not prepared to allow the Crown to expand upon those grounds. Thus, we saw no basis to interfere with the judge’s decision to stay the charges against Mr. Zabihullah based on the arguments that were properly brought before us by the Crown. This made it unnecessary for us to consider the arguments advanced by Mr. Zabihullah to the effect that the judge had erred by attributing too much delay to him and to the exceptional circumstances.

[27] We therefore dismissed the Crown’s appeal.

R v Moazami, 2025 BCCA 189

[June 19, 2025] Sentencing: Conduct of the Trial Aggravating a Sentence [Reasons by Winteringham J.A. with Bennett and Riley JJ.A. concurring]

AUTHOR’S NOTE: Trial Participation Cannot Aggravate Sentence

While a guilty plea may mitigate a sentence, choosing to go to trial cannot be treated as an aggravating factor. In this case, the trial judge imposed a sentence exceeding the Crown’s position, citing that the accused subjected the complainants to “fear, stress, and aggravation” by proceeding to trial, re-victimized them, and lied under oath.

The Court of Appeal found this to be a clear error. The judge’s claim that the accused lied was based solely on a negative credibility finding—not a conviction for perjury—and improperly used to justify a harsher sentence.

The Court reaffirmed that:

“Neither the decision to plead not guilty nor the manner in which an accused presents their defence is to be treated as an aggravating factor on sentence.”

 

Overview

[1] Reza Moazami seeks leave to appeal a global sentence of 23 years, less time credited as five years and 26 days, imposed on November 10, 2015: R. v. Moazami, 2015 BCSC 2055. The sentence was imposed following a 61-day trial of 30 sexual and prostitution-related offences against 11 complainants ranging in age from 14 to 19 years over a period of two and a half years, from February 2009 to October 2011: R. v. Moazami, 2014 BCSC 1727 (collectively, the “Avails Offences”). Sentence was imposed on 26 counts after four counts of sexual assault were stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729, 1974 CanLII 14.

[2] After the trial for the Avails Offences, the appellant was convicted of attempting to obstruct justice and breaching a no-contact order for attempting to persuade one of the complainants not to testify against him: R. v. Moazami, 2016 BCSC 99 (the “Obstruction Offence”). For the obstruction of justice and breach conviction, the appellant was sentenced to three years imprisonment, to be served consecutively to the sentence for the Avails Offences: R. v. Moazami, 2016 BCSC 2137.

[7] Essentially, the appellant contends the sentencing judge committed errors by: (1) failing to consider the principle of rehabilitation; (2) exceeding the Crown’s proposed range of sentence without providing notice to the appellant that she intended to do so; (3) treating the appellant’s exercise of his right to trial and the conduct of his defence as an aggravating factor; (4) improperly assessing the role of mandatory minimum sentences; (5) wrongly applying the totality principle; and (6) imposing a sentence that was demonstrably unfit.

[12] Second, the judge exceeded the Crown’s sentencing position by almost three years without providing notice to the appellant of her intention to do so. This case predates R. v. Nahanee, 2022 SCC 37, and the judge, in the circumstances of this case, cannot be criticized for failing to give notice to the appellant and inviting further submissions pursuant to the principles set out in Nahanee. However, the judge revealed an error in principle in her explanation for exceeding the Crown’s position on sentence. In this case, the appellant’s primary position at the sentencing hearing was that the Crown’s position (20 years and 8 months) greatly exceeded any case seen in this country and therefore, a much lower sentence (10–12 years) was fit. The judge went above the Crown’s position by almost three years and imposed a 23-year jail sentence.[Emphasis by PJM]

[13] The judge justified this position, in part, because the appellant “subjected these young, marginalized young women to the fear, stress, and aggravation of a long trial; he re-victimized the complainants and he lied to the Court under oath”: at para. 144. While a guilty plea may be a mitigating factor on sentencing, neither a decision to plead not guilty nor the manner in which an accused person presents their defence is to be treated as an aggravating factor. In my respectful view, when the judge explained the higher sentence, she linked it, in error, to the appellant’s decision to proceed with a trial, and in some respects, to the manner in which the trial was conducted. I have concluded the error directly impacted the sentence.[Emphasis by PJM]

Reasons for Sentence – Avails Convictions

[35] The judge then considered the mitigating and aggravating circumstances relevant to each of the 11 complainants and determined the entire length of sentence for all complainants to be 48 years and six months imprisonment before applying the totality principle. She concluded that the total sentence should not be calculated concurrently; to do so, she stated, “would be the equivalent of giving [the appellant] a reduced sentence because he inflicted harm on many young girls rather than only one or two”: at para. 137. She noted that this Court has held that “crime should not be ‘cheaper by the dozen’” but that the totality principle demands some reduction to avoid imposing a harsh and oppressive jail term that was “not befitting [the appellant’s] past criminal record, and would crush his prospects for any rehabilitation”: at para. 137.

[38] After using the statutory minimum and maximum sentences as a benchmark and applying the factors relevant to the totality principles, the judge found a sentence of 23 years incarceration was “the minimum necessary to achieve the fundamental objectives of sentencing on the facts of this case”: at para. 143. She then made the following comment about the appellant’s potential for rehabilitation as it related to the objectives of sentencing:

[143] … Denunciation and deterrence are the most important principles of sentencing in light of the nature of the offences against children. While it is also important to consider [the appellant’s] potential for rehabilitation, the serious nature of his offences and the harm he has caused to these young complainants requires this sentencing objective to be accorded a secondary role in crafting the appropriate sentence. Moreover, as described earlier, there has been no formal assessment of [the appellant’s] potential for rehabilitation and risk for re-offending, and the value of the evidence of rehabilitation he has produced is lessened substantially by the known facts proven at the trial.

[39] After determining the length of sentence to be imposed, the judge observed that it exceeded the length proposed by the Crown, but found that a reduction of the total sentence to 23 years “properly reflect[ed] [the appellant’s] overall blameworthiness for his egregious misconduct and the serious harm caused to the complainants”: at para. 144. The judge then made the following comments about the appellant’s choice to proceed with a trial and the conduct of his defence:

[144] … In addition to [the appellant’s] misconduct during the periods of the offences charged, as outlined in this judgment and in the reasons for conviction, he subjected these young, marginalized young women to the fear, stress, and aggravation of a long trial; he re-victimized the complainants and he lied to the Court under oath. He exhibited no remorse and failed to take even the slightest amount of responsibility for his misconduct. He has no insight into the harm caused to his victims.[Emphasis by PJM]

Second ground: Did the judge err by exceeding the Crown’s sentencing range without providing notice to the parties?

[54] At the time, the judge was not required to give notice to the parties that she was considering imposing a sentence exceeding the upper end of the range proposed by the Crown. Following Nahanee (for cases involving guilty pleas and contested sentencing hearings), failing to provide notice and an opportunity for further submissions is understood to be an error in principle which, if it had an impact on the sentence, satisfies the standard for appellate intervention: Nahanee at paras. 52, 59….

[58] However, on the third branch of Nahanee, I am of the respectful view that the judge’s reasoning for exceeding the Crown’s sentencing position was based on an erroneous consideration; the appellant’s decision to pursue a trial. I would characterize this as an error in principle and will address this submission under the next heading.

Third ground: Did the judge improperly consider the appellant’s exercise of his right to trial or the conduct of his defence as an aggravating factor?

[60] In my view, there is an aspect of the judge’s reasoning on this point that is problematic. The judge links the appellant’s exercise of his right to a trial and the conduct of his defence to the longer sentence imposed. I recite the paragraph here:

[144] Although the Crown has proposed a somewhat shorter total sentence, I find that a reduction of the total sentence to 23 years properly reflects [the appellant’s] overall blameworthiness for his egregious misconduct and the serious harm caused to the complainants. In addition to Mr. Moazami’s misconduct during the periods of the offences charged, as outlined in this judgment and in the reasons for conviction, he subjected these young, marginalized young women to the fear, stress, and aggravation of a long trial; he re-victimized the complainants and he lied to the Court under oath. He exhibited no remorse and failed to take even the slightest amount of responsibility for his misconduct. He has no insight into the harm caused to his victims.[Emphasis by PJM]

[Emphasis added.]

[61] ….The Crown submits that even if the Court finds error here, it is one without an impact on the sentence….

[62] Respectfully, I disagree. The law is clear that a guilty plea may be a mitigating factor on sentencing. However, neither a decision to plead not guilty nor the manner in which an accused person presents their defence is to be treated as an aggravating factor on sentence. In R. v. Kozy (1990), 74 O.R. (2d) 545, 1990 CanLII 2625 (C.A.), the Court of Appeal for Ontario stated it this way, at page 506:

Just as an accused should never apprehend that a penalty will flow from a plea of not guilty, there should also be no perceived impingement upon the manner of presenting the defence. This is so whether it be counsel’s viciousness in attacking a complainant or lies told by the accused. The latter may lead to its own penalty on a trial and conviction for perjury, but within the trial for the offence of sexual assault both rank as tactics of the defence, however ill-conceived, and they are embraced within the right to full answer and defence afforded by s. 802(1) and s. 650(3) of the Criminal Code …[Emphasis by PJM]

Imposing a higher sentence because an accused testified and lied would be contrary to his right not to be punished for a crime—in this case, perjury—of which he has not been convicted.

[66] First, in my view, the judge did more than simply comment that the appellant did not have the benefit of a mitigating guilty plea. The judge placed her comments about the appellant’s choice to proceed to a trial in a paragraph where she explained her reasons for exceeding the Crown’s proposed sentence. The judge stated that the 23-year sentence properly reflected the appellant’s overall blameworthiness for his “egregious” conduct during the offending period, and “[i]n addition to [his] misconduct … he subjected these young, marginalized young women to the fear, stress, and aggravation of a long trial; he re-victimized the complainants and he lied to the Court under oath”: at para. 144. The judge explicitly relied on the appellant’s exercise of his right to a trial and the conduct of his defence to justify a 23-year sentence, one higher than sought by the Crown.

[67] Second, the judge’s statement that the appellant lied under oath cannot be easily explained. It raises the exact problem identified in Kozy. That is, the judge found that the appellant had lied but he was not convicted of perjury. In my view, reading the reasons as a whole and in light of the context of the record, the judge’s treatment of his false testimony was used as an aggravating factor at sentencing. She stated as much when, in the sentence immediately preceding this comment, she indicated she was going higher than the Crown’s proposed sentence.

[68] In sum, it is my view that the judge erred when she considered the appellant’s exercise of his right to a trial and his conduct during the trial as justification for imposing the 23-year sentence. Later in these reasons, I will address whether the error impacted the sentence imposed.

Did the Error Impact the Fitness of the Sentence Imposed?

[104] As set out above, I have concluded the judge erred when she justified the 23- year sentence based on the factors identified at para. 144 of her reasons; that is, that the appellant compelled the complainants to endure a trial, thus re-victimizing them; and lied in his testimony. These impugned factors were directly connected to the reason why the judge exceeded the Crown’s sentencing position. In my view, this error impacted the length of the sentence ultimately imposed.

What is a Fit Sentence?

[105] Where an error in principle has impacted the sentence, this Court may determine a fit sentence, applying the principles of sentencing afresh, with due deference to the judge’s findings of fact and the aggravating and mitigating factors that are untainted by error: Friesen at paras. 27–28; R. v. G.J.M., 2024 BCCA 82 at para. 74.

[106] ….Giving priority to the objectives of deterrence and denunciation and placing adequate weight on the harm inflicted on the complainants, and because the judge’s reasons are otherwise untainted by error, I would reduce the total sentence to 20 years and 8 months, the position advanced by the Crown at the sentencing hearing. The judge’s analysis of the applicable sentencing principles, including aggravating and mitigating factors, and the circumstances of the offence and the offender was otherwise flawless.

[108] It is important to point out, and indeed to stress, that the appellant’s criminal conduct was grave and morally reprehensible. He engaged in predatory and exploitative criminal behaviour toward a large number of vulnerable young victims. His conduct was punctuated by coercion and sexual violence toward a number of them. At the sentencing hearing, the parties were unable to find any other reported sentencing decisions dealing with avails and related sexual offences on this scale over a comparable duration of time involving so many victims. Every one of the appellant’s victims was an individual who suffered indignity at the hands of the appellant. All were traumatized, some severely, to the point that they continued to struggle years afterward. The trial judge found a pressing need for denunciation and deterrence, a conclusion that has not been disturbed on appeal and is fully supported by the evidence at trial and sentencing. Clearly, the appellant’s offending conduct called for a very lengthy penitentiary sentence.

[109] However, in my view, the sentencing judge’s error in principle impacted the sentence to the extent that it led to her to impose a penitentiary term exceeding the position advanced by the Crown. The Crown’s position was formulated with a view to the gravity of the offences and the offender’s moral blameworthiness and also took into account the principle of totality. I would thus reduce the total sentence to 20 years and 8 months….

Disposition

[113] The application to adduce fresh evidence is dismissed.

[114] Leave to appeal sentence is granted. The sentence appeal is allowed and the sentence of 23 years is reduced to 20 years 8 months….

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Pawel Milczarek, Appellate Lawyer in Calgary, AB.

Written By Pawel Milczarek

Pawel is a partner at Sitar & Milczarek. When he’s not litigating he writes the Defence Toolkit blog.

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