Criminal - Appeals - Change in Law. R. v. Lavergne
In R. v. Lavergne (Ont CA, 2023) the Court of Appeal considered the appellate legal effect of a change in the law subsequent to sentencing:
 The appellant argues that based on the decision in R. v. Bunn, 2000 SCC 9,  1 S.C.R. 183, we must reconsider the sentences imposed because of these changes in the law. In my view, the circumstances in this case are different from those in Bunn.
 In Bunn, s. 742.1 was enacted after Mr. Bunn was sentenced to two-years’ imprisonment on breach of trust convictions. Section 742.1 created the conditional sentence, making those offences eligible for conditional sentences at the time of his appeal. The Manitoba Court of Appeal reconsidered Mr. Bunn’s two-year sentence and substituted a two-year-less-a-day conditional sentence, based largely on Mr. Bunn’s financial difficulties and his need to remain at home to care for his disabled, dependent, elderly wife. The Crown appealed the Manitoba Court of Appeal decision, arguing that the court erred in not deferring to the trial judge’s sentence. But Lamer C.J.C., for the court, upheld the Manitoba Court of Appeal decision, explaining that had s. 742.1 been in force at the time the trial judge sentenced Mr. Bunn, there was a “distinct possibility” that the trial judge would have imposed a sentence of less than two years, making him eligible for a conditional sentence: Bunn, at para. 19. Since Mr. Bunn had now had the benefit of s. 742.1, the imposition of a conditional sentence was appropriately considered by the appeal panel and imposed for appropriate reasons. Chief Justice Lamer explained that even though the trial judge had not erred in principle or imposed a demonstrably unfit sentence, “[w]here there has been an intervening change in the law between sentencing and appeal, it is as though the sentencing judge has committed an error in principle, albeit for reasons beyond his or her control, because relevant principles have not been considered”: Bunn, at para. 21. He said that in such circumstances, “[t]he Court of Appeal need not … defer to all of the trial judge’s findings, and can proceed to re-sentence in light of the new principles.”
 My analysis of the application of Bunn to this appeal differs relating to the sexual assault conviction and the sexual exploitation conviction. It is convenient to begin with the sexual assault conviction.
 With respect to the sexual assault conviction, as a result of Bill C-5 there are now no remaining statutory impediments to a conditional sentence for that offence. Had Bill C-5 been in force at the time the appellant was sentenced, the trial judge would have had to consider whether to impose a conditional sentence, not unlike the circumstances in Bunn. That said, I do not read Bunn as requiring appellate courts to reconsider anew all sentences that become eligible for more lenient treatment as the result of changes in the law. Bunn holds that courts of appeal need not defer to trial sentences. It does not say that they cannot do so, and in my view, this is an appropriate case for deference. This is not a case where the sentence may have been different had the appellant had the benefit of the current law at the time. It is patent in the trial judge’s decision that she would not have imposed a conditional sentence on the sexual assault offence, even had she considered the possibility. The trial judge concluded that a denunciatory and deterrent sentence had to be imposed to reflect the appellant’s wrongdoing and the harm caused by his offending. She commented that she believed three months of imprisonment to be too low and made it clear that she would have imposed a longer sentence had the Crown not requested three months in prison. Moreover, this is not a case like Bunn where there is a strong basis for using the restorative or rehabilitative tool of a conditional sentence. The appellant continued to deny his guilt and was no longer going to have access to children in the power dynamic of a teacher. Therefore, unlike Bunn it is not a case where there was a “distinct possibility” that the trial judge would have concluded that the need for rehabilitation or restoration should qualify the primary sentencing objectives of deterrence and denunciation. The trial judge had the benefit of presiding at the trial and hearing the sentencing submissions. Absent a real, rather than notional, error in principle, I would defer to her decision.