What Do You Do When You Think a Defendant’s Expression of Remorse is a “Sham”?

In R. v. Dick (K.D.), 2015 MBCA 47, April 27, 2015, the accused pleaded guilty to the offence of manslaughter.  The trial judge imposed a period of seven years imprisonment.  The accused appealed form sentence and argued that the sentencing judge erred in her consideration of his expression of remorse at the sentence hearing.

The Manitoba Court of Appeal noted that following sentencing submissions “the defence produced a written apology stated to be from the accused that defence counsel read to the court.  The sentencing judge questioned whether it was the accused’s words, given that, in her view, the sophistication of the vocabulary did not match the reduced level of his intellectual functioning as found by Dr. Somers.  Defence counsel said that the accused told her that he had help preparing it from his case manager and another inmate at the institution where he was being held.  Defence counsel also stated that the accused said that ‘these are his words, this is what he wanted to say and he had some help writing it out.’”

In response to the sentencing judge’s comments, defence counsel “offered to contact the case manager and get more information regarding the preparation of the apology, but the sentencing judge refused.  Instead, she suggested that the accused make his statement orally in court.  He attempted, but spoke only a few words to say that he was sorry.  This was significantly simpler than the written apology and did not demonstrate the insight into the effects of his criminal behaviour and the commitment to rehabilitation that was expressed in his written apology.”

In her written reasons for imposing sentence, the sentencing judge stated that “[t]he prepared statement is a sham attempt to demonstrate any sense of true remorse.”

On appeal, the Manitoba Court of Appeal concluded that the sentencing judge did not improperly consider the expression of remorse proffered.  The Court of Appeal held, at paragraphs 16 and 17, that given “all of the evidence available to the sentencing judge, it was open to her to conclude that the written apology was not that of the accused and that the remorse was not genuine…we do not find that the sentencing judge erred in her conclusion that the written apology was a sham on the part of the accused or that she gave it too much weight.  Thus, in the end, she did not commit any error in relation to her treatment of circumstances of the written apology, the accused’s lack of true remorse or the weight that she gave to those circumstances.”

However, the Court of Appeal also pointed out that “many accused have difficulties expressing themselves, both verbally and in writing” and that therefore there “is absolutely nothing wrong with an accused receiving some assistance in preparing a statement to be presented in court, as long as that statement expresses the true sentiments and insights of the accused” (at paragraphs 13 and 14):

It is clear that many accused have difficulties expressing themselves, both verbally and in writing.  There is absolutely nothing wrong with an accused receiving some assistance in preparing a statement to be presented in court, as long as that statement expresses the true sentiments and insights of the accused.  These statements are intended to have an impact on the sentence imposed, and, if they do not express the true sentiments and insights of an accused, then their use will result in an improper sentence.

In this case, given her later, rather strong finding that the written apology was a sham, it would have been better had the sentencing judge first permitted the defence to speak to the case manager to try to clear up the details of the preparation of the written apology.  In the end, however, there was evidence to support her findings that the apology was not written by the accused and that his remorse was not genuine.  The vocabulary and sophistication of the apology was inconsistent with Dr. Somers’ assessment of the accused’s mental deficits.  Further, as the sentencing judge noted, the pre-sentence report “further noted that [the accused] had expressed no remorse for his involvement in the death of [the deceased], but was more concerned about his own safety should he go to a federal institution” (reasons at para. 9).  This pre-sentence report was compiled only three months before the sentencing submissions.  In addition, while she does not specifically refer to this aspect of Dr. Somers’ report, she had clearly read it closely and there is no reference in Dr. Somers’ report to the accused expressing any remorse, although the accused did talk of the risk to himself in federal prison.  Dr. Somers’ report was prepared only one week before the presentation of the written apology.  Thus, if the accused did feel true remorse, it came very late in the game, which could lead to questions about whether it was genuine.

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