A sentencing judge who departs from the Crown's concession on remorse without putting the offender on notice denies procedural fairness, even where the departure is a qualified finding rather than a blanket rejection. Where an offender's mental health condition is established by unchallenged expert evidence, the sentencing judge must specifically address how it moderates general deterrence, retribution and denunciation, and whether it renders conditions in custody more onerous, even where no causal connection to the offending is established. The observations in Qutami v R about discounting self-reported statements to experts are not statements of principle and their continued application is questionable.
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