Penalty Precedents and Assignment of Panels

To use diplomatic language, the case of R. v. Gashikanyi, 2017 ABCA 194 is an example of frank and vigorous debate within an appeal panel. The issue was whether the sentence for sexual assault in a criminal case was appropriate. Each of the three Justices issued separate reasons.

One Justice made an impassioned case that precedents and established “starting points” constituted an unfair constraint on individual trial judges to establish the sentence that they think is fair. The Justice said: “A “precedent” may be nothing more than the product of the assignment of a like-minded three or five person panel to hear an appeal. Judges of a particular “doctrinal disposition” will set the precedent simply because the panel was “first at bat”.” The second Justice was supportive of this approach, but couched that support in terms of permitting Judges at sentencing hearings to distinguish precedents on the facts of their case. The third Justice, however, took exception to this approach to precedents, indicating that they provide useful guidance to subsequent courts. That Justice said: “that consistency, certainty, predictability and sound judicial administration are achieved with the adherence to precedent”.

While not an issue in this case, there was also spirited debate by the three Justices on whether assignments to appeal panels should be random. The first Justice raised the issue, stating:

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. [Citing: Robert Brown Jr. and Allison Herren Lee, “Neutral Assignment of Judges at the Court of Appeals” (2000) 78: 5 Tex. L. Rev. 1037 at 1103.] An appellate court that utilizes discretionary non-random methods to assign (or to replace an assigned judge) leaves open the potential for manipulation.

Neither of the other Justices agreed with this comment. The second Justice cited such considerations as expertise, workload, illness and appearance of bias would warrant the exercise of discretion by the Chief Justice, although random selection should still be the general rule. The third Justice interpreted the first Justice’s comments as being an attack on the impartiality of Judges generally and a baseless suggestion against the open-mindedness of the current assignment system in particular. This discussion has obvious implications for the assignment of panels by the chairs of committees of regulators.

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