



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hasiu, 2018 ONCA 24

DATE: 20180115

DOCKET: C63665

Epstein, Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul Hasiu

Appellant

Eva Taché-Green, for the appellant

Jennifer Conroy, for the respondent

Heard: November 29, 2017

On appeal from the sentence imposed by Justice Stephen J.
    Hunter of the Ontario Court of Justice, dated November 17, 2016.

Epstein J.A.:


OVERVIEW

[1]

This is another case involving the limits on a judges jurisdiction to
    amend a sentence after it is imposed.

[2]

On November 17, 2016, the appellant was convicted of two counts of
    possession of morphine and heroin for the purpose of trafficking while incarcerated
    within a federal penitentiary (the possession offences). He was sentenced to
    two years custody, in addition to 70 days of enhanced credit for pre-trial
    custody (the possession sentence). At the time of his conviction and
    sentencing for the possession offences, the appellant was serving a 75 month
    sentence for robbery (the robbery sentence).

[3]

The sentencing judge did not indicate whether the possession sentence was
    to be served concurrently with or consecutive to the robbery sentence. The
    federal institution where the appellant had been serving the robbery sentence
    sought the courts direction concerning this issue, and was informed that the possession
    sentence was to be served concurrently. Accordingly, on November 21, 2016, the
    appellant was released from custody pursuant to the
Corrections and
    Conditional Release Act,
S.C. 1992, c. 20 (
CCRA
), having passed
    his statutory release date for the robbery and possession sentences.

[4]

Three days later, the sentencing judge amended the Information recording
    the possession sentence to include the phrase: "Consecutive to current
    sentence being served.
Nunc pro tunc
." Before amending the
    Information, the sentencing judge did not notify or reconvene the parties. As a
    result of the amendment, the appellant was arrested and re-incarcerated on
    November 29, 2016, eight days after his release. Under the terms of the amended
    Information, the possession sentence will expire on November 2, 2020.

[5]

The appellant seeks leave to appeal his sentence. He argues that the
    sentencing judge was
functus officio
when he amended the Information.
    In support of this submission, the appellant seeks to admit fresh evidence
    detailing the events that transpired following the imposition of the possession
    sentence.

[6]

I agree with the appellant that in these circumstances, the sentencing
    judge did not have jurisdiction to amend the Information. I would therefore
    grant leave to appeal, admit the fresh evidence, and allow the appeal.

BACKGROUND FACTS

(1)

The Offence

[7]

On November 26, 2015, the appellant was found in possession of morphine
    and heroin while serving the robbery sentence at Collins Bay Institution. At
    the appellants trial, an expert testified that the nature of the drugs and the
    manner of their packaging was consistent with possession for the purpose of trafficking.
    In his defence, the appellant testified that (1) he had a prescription for the
    morphine, and (2) he found the heroin while cleaning a bathroom and had only
    used it for personal consumption.

[8]

The trial judge rejected the appellant's evidence and convicted him of
    two counts of possession for the purpose of trafficking. The matter proceeded
    to sentencing.

(2)

The Offender

[9]

At sentencing, several details emerged about the appellants personal
    circumstances.

[10]

The
    appellant has a daughter. He has had sole custody of her since she was a baby. At
    the time of sentencing, he had not seen his daughter or other members of his
    family for over five years because of his run-ins with the criminal justice
    system. The appellant has a lengthy criminal record, largely attributable to
    his struggles with drug addiction.

[11]

The
    appellant experienced hardship in prison due to the possession charges. He was
    denied his prescription morphine, which he began taking after a 2013 knee
    operation, and consequently experienced "excruciating pain". He was
    transferred to Collins Bays maximum-security area and lost the majority of his
    personal property. When his fellow inmates learned that he had used someone
    elses heroin, they attacked him, causing serious injuries. Following this
    attack, the appellant was placed in segregation for two months.

[12]

At
    the sentencing hearing, the appellant provided a letter outlining his ongoing
    struggles with addiction and plans for the future. In the letter, the appellant
    indicated that he was done with the life of drugs, and planned to spend time
    with his family and help with his fathers business after his release.

(3)

Positions of the
    Parties on Sentence

[13]

The
    Crown argued for a sentence between 30 to 33 months  6 to 9 months above the
    two year mandatory minimum applicable to the possession offences. According to
    the Crown, the quantities of drugs seized, while "not large", could
    have caused "mayhem within the prison system in terms of safety and
    security". The defence sought a two year sentence. Defence counsel
    emphasized the repercussions the appellant had suffered as a result of the possession
    charges, as well as his history of addiction and plans to turn his life around.

[14]

Both
    parties agreed that the sentence imposed should reflect 70 days of credit for
    the 47 days the appellant had spent on remand when he would otherwise have been
    on statutory release. Neither counsel made submissions on whether the possession
    sentence was to be served concurrently with or consecutive to the robbery
    sentence.

REASONS FOR SENTENCE

[15]

The reasons for sentence read as follows:

In the circumstances, taking into account the fact that this
    is, I think in part at least, addiction driven, and the amount involved, taking
    into account the institutional consequences which Mr. Hasiu has already
    suffered or endured, if I can put it that way, I believe the appropriate
    disposition at this point in time is two years in custody. I will reflect 70
    days of pretrial custody on the information, concurrent on both charges.

There will be a mandatory DNA order attaching. He is already on
    the databank in any event, and there will be a lifetime weapons prohibition
    under
section 109
as well.

I have read the letter. Mr. Hasiu, this is not a crushing
    sentence, although am I sure it's not something you want to have happen.
    Whether or not you move forward is entirely up to you at this point. Thank you.

POST-SENTENCING EVENTS

[16]

The
    appellant seeks to introduce, as fresh evidence, an affidavit detailing the
    events that took place after his sentencing hearing and up to the time he was
    re-arrested following the amendment to the Information. As a preliminary
    matter, I would admit the fresh evidence as I am satisfied it meets the test
    for admissibility set out in
R. v. Palmer
, [1980] 1 S.C.R. 759. The
    evidence could not have been adduced at the sentencing hearing and  as will
    become clear in my analysis  is necessary to determine whether the sentencing
    judge had jurisdiction to amend the Information. The Crown does not oppose
    admission of the fresh evidence, nor does the Crown contest its contents
(other than to caution that they are based at certain
    points on hearsay).

[17]

Having
    admitted the fresh evidence, I now turn to reviewing the relevant events that
    took place post-sentencing, as described in the appellants affidavit.

[18]

Following
    his sentencing hearing on November 17, 2016, the appellant was incarcerated in
    the Quinte Detention Center. Shortly thereafter, the Sentence Management Unit
    at Collins Bay sought direction from the court as to whether the possession
    sentence was to be served concurrently with or consecutively to the robbery
    sentence. This inquiry was made necessary by the provisions of the
CCRA
governing statutory release. Section 127(3) of the
CCRA
states that:

Subject to this section, the statutory release date of an
    offender sentenced on or after November 1, 1992 to imprisonment for one or more
    offences is the day on which the offender completes two thirds of the sentence.

[19]

If
    the possession sentence was to be served concurrently with the robbery
    sentence, s. 139(1) of the
CCRA

would have applied:

For the purposes of the
Criminal Code
, the
Prisons
    and Reformatories Act
, the
International Transfer of Offenders Act
and this
Act
, a person who is
    subject to two or more sentences is deemed to have been sentenced to one
    sentence beginning on the first day of the first of those sentences to be
    served and ending on the last day of the last of them to be served.

[20]

In
    this scenario, the appellants sentence would have effectively begun on August
    2, 2012 (the first day of the robbery sentence) and would have concluded on
    November 17, 2018 (two years after the imposition of the possession sentence).
    The appellants statutory release date (based on two-thirds of his 75.5 months
    in custody) would have been October 30, 2016.

[21]

If
    the possession sentence was to be served consecutive to the robbery sentence,
    the appellants statutory release would have been governed by s. 127(5.1) of
    the
CCRA
:

If an offender receives an additional sentence for an offence
    under an Act of Parliament and their parole or statutory release is not
    revoked, their statutory release date is the day on which they have served,
    from the earlier of the day on which they are recommitted to custody as a
    result of the suspension of their parole or statutory release and the day on
    which they are recommitted to custody as a result of the additional sentence,

(a) any time remaining before the statutory release date in
    respect of the sentence they are serving when the additional sentence is
    imposed; and

(b) two thirds of the period that equals the difference between
    the length of the sentence that includes the additional sentence and the length
    of the sentence that they are serving when the additional sentence is imposed.

[22]

In
    this scenario, the appellants sentence would have expired on November 1, 2020
    (two years after the last day of the robbery sentence), with a statutory
    release date of February 1, 2018.
[1]

[23]

Collins
    Bay was informed by the court that the possession sentence was concurrent to
    the robbery sentence, as the following note in the appellant's institutional
    records makes clear:

Although it was not specified whether the sentence was
    concurrent or consecutive,
Sentence Management at Collins Bay Institution
    (CBI) advised this writer that they had clarified with the court and the
    sentence was to be concurrent
. As such, on 2016-11-21 the offender was
    released from remand on [statutory release] with residence and transferred to
    the New Directions CRF in Kitchener on 2016-11-22. [Emphasis added]

[24]

Accordingly,
    pursuant to s. 139(1) and s. 127(3) of the
CCRA
, the appellant was
    released from custody on November 21, 2016, having passed his statutory release
    date. Prior to his release, the appellant asked his parole officer twice if the
    possession sentence ran concurrently with or consecutive to the robbery
    sentence. Both times, the appellants parole officer advised him that the
    sentences were concurrent, and that he would therefore be released.

[25]

Upon
    his release, the appellant travelled by bus to the New Directions Halfway House
    in Kitchener, Ontario. He reunited with his family, started to work in his
    father's business and attended his daughter's 18th birthday celebration.

[26]

As
    set out earlier, on November 24, 2016, the Information recording the possession
    sentence was amended without the appellants knowledge in order to identify the
    sentence as consecutive to rather than concurrent with the robbery sentence. 
    The appellant's prison records state:

On 2016-11-29, the Guelph Parole Office was informed by CBI
    that they had received an updated Warrant of Committal specifying that HASIU's
    sentence was in fact consecutive. As such, his [statutory release] date was now
    in the future and, subsequently, his parole became inoperative. As a result,
    the warden of CBI issued a Warrant of Apprehension under section 11.1 of the
    CCRA. The offender was apprehended by the Repeat Offender Parole Enforcement
    Unit on 2016-11-29 without incident.

[27]

On
    November 29, 2016, the appellant was arrested at the New Directions Halfway
    House by the Repeat Offender Parole Enforcement (ROPE) Squad. The ROPE
    Occurrence Report states:

During his federal sentence, Hasiu was convicted of Possession
    for the Purpose of Trafficking x2. These charges stem from incidents while he
    was serving his federal sentence. The charges were dealt with and he received
    two years concurrent. After consultation with the sentencing Judge, it was
    determined that a period of incarceration on the conviction was intended
    (consecutive to sentence).

On November 29, 2016, after it was learned that Hasiu was
    released due to a clerical mistake a federal parole warrant was issued.

[28]

The
    appellant is now serving an effective combined sentence of eight years and
    three months, set to expire on November 1, 2020.

ISSUES ON APPEAL

[29]

The
    sole issue on appeal is whether the sentencing judge was
functus officio

when he amended the Information. The parties agree this inquiry is governed
    by this courts decisions in
R. v. Malicia

(2006)
, 82 O.R. (3d) 772 (Ont. C.A.), and
R. v.
    Krouglov
, 2017 ONCA 197, 346 C.C.C. (3d) 148.

ANALYSIS

(1)

The Governing
    Principles

[30]

This
    court considered the
functus
officio
doctrine in somewhat
    similar circumstances in
Malicia
.  In that case, the sentencing judge imposed
    a sentence without indicating in her reasons, the indictment or the warrant of
    committal whether it was to be consecutive to or concurrent with a sentence
    already being served. When counsel brought this matter to the sentencing
    judges attention two days after sentence was imposed, the sentencing judge
    re-convened the parties. After hearing submissions, the sentencing judge indicated
    that she had always intended for the sentence to be consecutive and that she retained
    jurisdiction to clarify her intention.

[31]

On
    appeal, MacPherson J.A. upheld the consecutive sentence. He held that a
    sentencing judge may amend a sentence after it has been imposed only where the
    amendment does not amount to a reconsideration of her original decision.

Drawing upon Major J.s decision in
R. v.
    Burke
, [2002
] 2 S.
C.R. 857, MacPherson
    J.A. outlined at para. 27 the underlying policy rationale for allowing
    correction of errors in such circumstances:

[T]he policy rationale enunciated in
Burke
for permitting correction of errors in jury cases  namely, the administration
    of justice would be brought into disrepute if a court were barred from
    correcting a recorded verdict where there is no perceptible injustice to the
    accused and no reasonable apprehension of bias  is precisely the same in judge
    alone criminal trials. A jury can make an error in recording a verdict; so can
    a judge. The law for permitting (and refusing to permit) corrections of errors
    should be, as much as possible, the same in both scenarios.

[32]

MacPherson
    J.A. concluded that the sentencing judges intentions were "manifest"
    and the record made it "crystal clear that everyone was on the same page"
    that the sentence would be consecutive. He therefore dismissed the appeal.

[33]

In concurring reasons, Simmons J.A.
    supported the disposition proposed by MacPherson J.A. and generally agreed with
    his analysis. She noted, however, that Major J. in
Burke

included
    a second step in the test for determining whether the remedial jurisdiction to
    correct errors
should
be exercised: whether the correction
    created fear of a tainted or biased jury, or the appearance of unfairness:
Malicia
, at para. 46. Similarly, Cronk J.A.
    concurred with MacPherson J.A.s analysis, but agreed with Simmons J.A. that
    error correction will be precluded not only where the proposed correction is
    tantamount to a reconsideration of the verdict (or sentence), but also where
    issues of unfairness or injustice to the accused or reasonable apprehension of
    bias arise:
Malicia
,
    at para. 61. In Cronk J.A.s view, factors such as the passage of time might
    so compromise the appearance or reality of trial fairness as to prevent
    correction of the error in the interests of justice:
Malicia
, at para. 62.

[34]

This
    court had another opportunity to consider the
functus officio
doctrine
    in
Krouglov
, a case in which the sentencing judge erred by stating in
    his reasons both that the sentence imposed was to be 6.5 years and 66 months.
    The warrant of committal reflected a 66 month sentence. Several months later,
    after being contacted by the Corrections Service of Canada (CSC), the sentencing
    judge signed another warrant of committal  without alerting defence counsel 
    in which he clarified his intent to impose a sentence of 6.5 years.

[35]

On
    appeal, this court adopted a two-step approach to determining whether a judge
    retains jurisdiction to amend a sentence after it is imposed:

(1)

Is the proposed
    amendment consistent with the judge's manifest intentions at the time the sentence
    was imposed?

(2)

Does permitting
    the amendment give rise to a reasonable apprehension of taint and/or cause unfairness
    to the offender?

[36]

Addressing
    the first step, the
Krouglov
court concluded that there was nothing in
    the record to suggest that the trial judge undertook after-the-fact reasoning
    to justify his correction. The judge's intention to impose an aggregate
    sentence of 6.5 years was clear from the record, and the reference to 66 months
    had been nothing more than a mathematical error.

[37]

The
Krouglov

court described the second step of the test as an
    inquiry into whether the trial judge should have exercised his jurisdiction to
    correct the error, taking into account any reasonable apprehension of taint or
    bias, as well as possible unfairness to the offender. The analysis, according
    to the court, must proceed from the perspective of [a]n informed person,
    viewing the matter realistically and practically  and having thought the
    matter through:
Krouglov
, at para. 51.

[38]

The
    court ultimately held that there had been no unfairness to the appellant as he had
    been present to hear the judge sentence him to 6.5 years of imprisonment. Moreover,
    the judges subsequent clarification did not prejudice the appellant as his
    appeal was already underway, and he had not reached his statutory release date
    or been granted parole.

(2)

Applying the
    Principles

1. Is the Amendment Consistent with the Sentencing
    Judges Manifest Intentions?

[39]

The
    appellant submits that the amendment to the Information required the sentencing
    judge to reconsider his original decision. The sentencing judge imposed the
    sentence requested by defence counsel without stating whether it was to run
    concurrently with or consecutive to the robbery sentence. Neither the trial
    Crown nor defence counsel addressed that issue in their submissions. The most
    plausible explanation, the appellant argues, is
that the
    participants in the sentencing proceedings simply did not turn their minds to
    whether the possession sentence was to be concurrent or consecutive.

[40]

The
    Crown contends it was obvious to all parties involved that the possession
    sentence would be consecutive to the robbery sentence, which is why the issue
    was not expressly raised. In support of this claim, the Crown points to the
    sentencing submissions of counsel and emphasizes defence counsels concession
    that the appellant is going back in for a period of lengthy custody. The
    Crown also relies on the sentencing judges statement that the appropriate
    disposition at this point in time is two years
in custody
 (emphasis
    added). Finally, the Crown submits a concurrent sentence would have been
    plainly inappropriate for the appellant given the gravity of the possession
    offences and their lack of connection to the robbery offence:
R. v. Smith
,
    2011 ONCA 564, 88 C.R. (6th) 383, at para. 88.

Analysis

[41]

This
    issue reduces to the following question: why is the record silent on whether
    the possession sentence should be served concurrently with or consecutive to
    the robbery sentence? Is it, as the appellant submits, because the sentencing
    judge did not turn his mind to the issue? Or is the record silent because, as
    the Crown argues, the consecutive nature of the sentence was so plainly
    obvious that no one thought to verbalize it?

[42]

I do not believe the record supports the Crowns position, for three
    reasons.

[43]

First,
    unlike in
Malicia
, the submissions of counsel in the proceedings below
    were not anchored in a shared understanding that any sentence imposed by the
    judge would be consecutive to the one [the appellant] was already serving:
Malicia
,
    at para. 33. Both counsel in
Malicia
requested consecutive
    sentences: see para. 54. The submissions in this case are considerably less
    clear. While the trial Crown sought a sentence above the two year mandatory
    minimum, he did not indicate if the sentence should be served concurrently with
    or consecutively to the robbery sentence. Defence counsel opened his submissions
    by twice requesting a sentence of two years
from today
  language
    consistent with a concurrent sentence (emphasis added).

[44]

The
    Crown, on appeal, argues that defence counsel acknowledged the need for a
    consecutive sentence when he conceded that the appellant would be "going
    back in for a period of lengthy custody. I do not agree. As the appellant
    notes, defence counsel may not have realized that a concurrent sentence would
    be calculated by the [CSC] in such a way as to result in the Appellant's
    immediate statutory release. That possibility was not addressed at any point
    during the sentencing hearing. Accordingly, defence counsels statements can be
    readily interpreted as reflecting his (mistaken) belief that, irrespective of
    the concurrent or consecutive nature of the possession sentence, the
    appellants eligibility for statutory release would be significantly delayed, resulting
    in his going back in for a lengthy period custody.

[45]

Second,
    the sentencing judges reasons do not clarify whether the possession sentence
    was to be served concurrently with or consecutive to the robbery sentence. In
Krouglov
,
    this court was able to ascertain the sentencing judges manifest intent based solely
    on his reasons for sentence, which referenced both the sentence mistakenly
    entered on the warrant of committal (66 months) and the true sentence (6.5
    years). In this case, by contrast, the sentencing judges reasons do not
    include any reference to a consecutive sentence. Contrary to the Crowns
    submission, the phrase two years in custody does not necessarily demonstrate that
    the sentencing judge intended to impose a consecutive sentence. The phrase two
    years in custody suggests no more than that the trial judge was imposing a
    jail term. It says nothing about whether that jail term is to be consecutive or
    concurrent. There is no indication the sentencing judge understood that a
    concurrent sentence would result in the appellants immediate statutory release
     notably, the relevant provisions of the
CCRA
were not raised by either
    party at the sentencing hearing.

[46]

Third, unlike in
Malicia
, the sentencing judge has not declared
    that he always intended to impose a consecutive sentence. Had he done so, the
    ambiguities within counsels submissions and his reasons for sentence may well
    have been overcome. The Crown submits the amendment to the Information 
nunc
    pro tunc
 should be viewed as a declaration by the sentencing judge that
    he always intended to impose a consecutive sentence. That declaration, in the
    Crowns view, should be accepted absent something powerfully contrary in the
    record.

[47]

I
    disagree. The Crowns submission finds little support in
Malicia
, given
    MacPherson J.A.s observation at para. 29 that when a sentencing judge
explicitly
    declares
her intention  her declaration should be accepted by an appellate
    court, absent something powerfully contrary in the record. In my view, the use
    of the phrase 
nunc pro tunc
 in the amendment to the Information
    falls well short of an explicit declaration of the sentencing judges manifest intent
    at the time he imposed the sentence. A statement of this nature carries far
    less weight than a declaration of intent in open court, such as the one issued
    in
Malicia
.

[48]

I
    agree with the Crown that a consecutive sentence would likely have been the
    legally appropriate outcome for the appellants case, as the robbery and
    possession offences took place years apart and shared no relevant factual
    nexus:
Smith
, at para. 88. The appellant, however, does not argue that
    the sentencing judge consciously arrived at a legally inappropriate result. His
    position is that the parties and the sentencing judge did not turn [their]
    minds to the issue of concurrent or consecutive sentences. All participants at
    sentencing, while fully intending to achieve a legally correct result, could
    nonetheless have failed to appreciate that the consecutive or concurrent nature
    of the possession sentence would materially impact the appellants statutory
    release date under the
CCRA
. This possibility finds ample support in the
    record, given the lack of any reference to the
CCRA
s provisions at
    sentencing, and subsequent confusion over the appellants
sentence and statutory release.

[49]

Ultimately,
    far from reflecting the sentencing judges manifest intent, the record is
    ambiguous on whether he turned his mind to the consecutive or concurrent nature
    of the possession sentence. Reasonable people may draw different inferences
    from the evidence. For my part, I am unconvinced that the amendment to the
    Information is consistent with the sentencing judges manifest intent at the
    sentencing hearing. The first step of the
Krouglov
test is therefore not
    met, ending the inquiry into whether the sentencing judge had jurisdiction to
    amend the Information. However, for completeness sake and allowing for the
    possibility that I may be incorrect, I will proceed to consider the second
    branch of the test.

2. Does Permitting the Amendment Give Rise To A
    Reasonable Apprehension of Taint And/Or Cause Unfairness to the Offender?

[50]

The
    appellant submits the amendment to the Information compromised the appearance
    of fairness in the proceedings below, for three reasons. First, the parties
    were not notified or reconvened prior to the amendment. Second, the timing of
    the amendment prejudiced the appellant, as he had been released and had begun
    reintegrating into the community. Third, unlike in
Krouglov
, the
    appellant could not have anticipated that his sentence would be amended 
particularly given his
    conversations with his parole officer that indicated the possession sentence
    was concurrent to the robbery sentence.

[51]

The
    Crown submits the proceedings below were fair to the appellant. He was present
    in court to hear the sentencing judge impose a sentence of two years in
    custody, after his own lawyer had conceded that he faced a period of lengthy custody
    as a result of the possession offences. While the Crown concedes an
    administrative error was made, it submits the error was corrected swiftly and
    caused minimal prejudice to the appellant. Allowing the appellant to benefit
    from that error despite the severity of his crimes is, in the Crowns view, the
    larger threat to the appearance of fairness in these proceedings.

Analysis

[52]

In my view, the amendment to the Information seriously compromised the
    appearance of fairness and cannot be sustained. I reach this conclusion for three
    reasons.

[53]

First
    and foremost, the Information was amended without the parties being notified
    and reconvened. No one informed the appellant or his counsel about the amendment,
    much less gave them an opportunity to make submissions on its propriety. This
    approach sits uneasily with the guidance in
Krouglov
, where this court
    held at para. 60 that [t]here can be no doubt that where a verdict or sentence
    has to be revisited for any reason, it would be preferable that  all parties
    be given the opportunity to participate in the process.
It is clear that this direction needs to be
reinforced.


[54]

When a sentence is amended without the parties
    knowledge and participation, the fairness of the sentencing process suffers.
    Openness is a fundamental valu[e] in our criminal justice system:
R.
    v. Hertrich
(1982), 67 C.C.C. (2d) 510
    (Ont. C.A.), at p. 537;
R. v. Schofield
, 2012 ONCA 120, 109 O.R. (3d) 161, at para. 16. It
    promotes judicial accountability and enhances public confidence in the
    administration of justice:
Vancouver Sun (Re)
, 2004 SCC 43, [2004] 2 S.C.R. 332, at para. 25;
Canadian
    Broadcasting Corp. v. R.
, 2010 ONCA
    726, 102 O.R. (3d) 673, at para. 24. Open and transparent sentencing
    proceedings also improve the justice systems legitimacy in the eyes of
    offenders, who may well be left with a justifiable sense of injustice if
    their sentences are routinely amended without their knowledge:
Hertrich
, at p. 537. These considerations weigh strongly
    against permitting an amendment to a sentence where the parties have not been notified
    and reconvened  though, as
Krouglov
demonstrates, failure to reconvene the parties will
    not necessarily be dispositive and must be viewed in conjunction with all the other
    circumstances of a given case.


[55]

In
    my view, the sentencing judges failure to notify and reconvene the parties
    significantly detracted from the appearance of fairness in the present case.
    Even if the sentencing judges amendment had been consistent with his manifest
    intention at the sentencing hearing, the fundamental values of fairness and
    openness would have been better served if the parties had been consulted before
    the amendment was made.

[56]

Second,
    the amendment had a particularly unfair effect on the appellant.  Unlike in
Krouglov
,
    where the offender had not yet reached his statutory release date and had not
    been granted parole when his sentence was corrected, here, the appellant was
    prejudiced by the timing of the amendment. He had been granted statutory
    release, had reunited with his family, and was beginning to reintegrate into
    the community. Significantly, the appellant took these steps in reliance on the
    administration of justice.  Recall that the appellant was informed not once but
    twice by his parole officer that the possession and robbery sentences were
    concurrent. Confident that he had served his time, the appellant started the
    difficult process of turning his life around, only to be re-arrested and returned
    to prison. This series of events, in my view, resulted in significant unfairness.

[57]

Third,
    although I do not believe it to have happened, the circumstances of this case
    could create a reasonable apprehension that the sentencing judge may have
    changed his mind after the sentencing, which would be profoundly unfair. Specifically,
    records from Collins Bay confirm that someone from the the court confirmed
    that the sentence was concurrent. Then the judge amended the Information to
    show the sentence to be consecutive. This apparent change in position could
    reasonably trouble an informed person, viewing the matter realistically and
    practically, and having thought the matter through.

[58]

I conclude my analysis with reference to
    the words of Cronk J.A. in
Malicia
.
The circumstances of this case, viewed holistically, so compromise the
    appearance  [of] fairness as to prevent correction of the error in the
    interests of justice.
It follows that the amendment to the Information
    was not valid and must be set aside.

DISPOSITION

[59]

For
    these reasons, I would grant leave to appeal and allow the appeal. I would
    declare the amendment to the Information to be of no force and effect. As a result,
    the possession sentence is deemed to be concurrent with the robbery sentence
[2]
,
    and the appellant is entitled to statutory release effective immediately.

Released: DP JAN 15
    2018

Gloria Epstein J.A.

I agree. David M. Paciocco J.A.

I agree. I.V.B. Nordheimer J.A.





[1]
This date does not account for time the appellant spent out of custody on bail
    pending this appeal.



[2]

R. v. McCarthy
, 2005 NLCA 36, 248 Nfld. & P.E.I.R. 14, at para. 11.


