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. R. v. S.B.

In R. v. S.B. (Ont CA, 2023) the Court of Appeal rejects the argument that post-offence convictions (for other offences) are relevant to current sentencing, here on an appeal where the Crown sought to introduce them as fresh evidence:
(ii) Crown’s Fresh Evidence of SB’s Subsequent Convictions

[51] In contrast, the Crown’s fresh evidence concerning SB’s subsequent convictions in 2014 and 2017 is not admissible. I reach this conclusion for two reasons.

[52] First, the 2014 and 2017 convictions would not have changed the outcome of SB’s sentencing hearing. These convictions were entered after SB was sentenced for first degree murder. Their existence would not – and cannot – have affected the youth court judge’s assessment of the appropriate sentence for the murder conviction. As this court observed in R. v. Reeve, 2020 ONCA 381, 151 O.R. (3d) 65: “[T]he appellant can only be punished for the conduct that he was convicted of. He cannot be punished, or be seen to be punished, for conduct that is alleged to have occurred a year after his sentence was imposed”: at para. 53.

[53] Second, the Crown alleges that the 2014 and 2017 convictions are relevant to the sentencing appeal as they highlight the limitations of the EPSR, which had been silent on these offences. I disagree. The limitations of the EPSR are clearly noted in the report itself. In particular, the EPSR notes that it “is not a detailed review of [the appellant’s] circumstances that would account for the period in between the commission of the offence and his sentencing in 2014.” Consequently, it is unnecessary to admit other fresh evidence to highlight this same limitation.

[54] In short, the Crown cannot ride on the coattails of the appellant’s fresh evidence application in order to submit their own fresh evidence – especially when this evidence did not exist at the time of the original sentencing hearing. As the Supreme Court of Canada wrote in R. v. Sipos, appellate courts must respect the importance of finality. Absent the Palmer criteria being met, this court cannot routinely decide sentence appeals “on the basis of after-the-fact developments”: R. v. Sipos, at para. 30.

[55] Accordingly, the Crown’s fresh evidence application is denied.


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