MCLNugget: Burke NLCA

R v Burke, 2018 NLCA 31

The Issue

The standard and appropriateness of imposing a restitution order under s738 of the Code.

The Answer

Stand-alone restitution orders are constitutionally valid. They are discretionary and such discretion must take into account an offender’s ability to pay: R v Zelensky, [1978] 2 SCR 940. However, where there is a breach of trust, ability to pay is not a predominant consideration: R v Castro, 2010 ONCA 718.

The Fine Print

In the present case there was a breach of trust. The evidence did not support an inability to pay. The $35,821.85 restitution order was upheld.

DM

MCLNugget: LeBreton NBCA

R v LeBreton, 2018 NBCA 27

The Issue

Does 724(3)(e) ) of the Code allow a sentencing judge to infer a disputed aggravating fact from the undisputed facts presented at an informal sentencing hearing?

The Answer

In short, yes. The NBCA cited R v Gardiner, [1992] 2 SCR 368 where the SCC held as follows:

It should also be recalled that a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more. Beyond that any facts relied upon by the Crown in aggravation must be established by the Crown. If undisputed, the procedure can be very informal. If the facts are contested the issue should be resolved by ordinary legal principles governing criminal proceedings including resolving relevant doubt in favour of the offender. [Gardiner @111].

The Fine Print

The NBCA held that the sentencing judge could, in this case, draw the impugned inference:

In this case, the dispute centres on the sentencing judge’s inference of premeditation, a state of mind which is a question of fact. In my view, the judge was entitled to draw the inference if she was satisfied beyond a reasonable doubt it was the only reasonable inference to be drawn from the facts. On this point, although Mr. LeBreton admitted to planning and taking the steps necessary to implement his plan, as noted, his dispute rested with whether the plan was for the purpose of scaring or killing his victim, which raised a question of his state of mind. I conclude his state of mind could be inferred from the facts. Applying Gardiner, it is easily concluded the sentencing judge had the right to rely on admitted facts to infer Mr. LeBreton’s state of mind. It is for this reason I am of the view the sentencing judge’s interpretation of s. 724(3)(e) was consistent with the framework set out by the Supreme Court in Gardiner. [@18]

DM

MCLNugget: Hunt ONCA

R v Hunt, 2018 ONCA 480

The Issue

Does late disclosure, delaying a bail hearing and causing “unnecessary and prolonged uncertainty [regarding his bail status] for the appellant and his family that he supported”.

The Answer

Credit may be provided for state conduct as per R v Nasogaluak, 2010 SCC 6. In this case, however, the trial judge properly rejected the request:

In the view of the sentencing judge, the alleged misconduct did not have anything to do with the circumstances of the offence or the offender so as to warrant consideration in sentencing: see Nasogaluak, at paras. 3 and 49. We agree. Moreover, even if the late disclosure can be described as state misconduct, it does not rise to the level of being a mitigating factor in this case. [@17].

DM

No Discretion to Circumvent

Judge (2).jpg

Do sentencing judges have the discretion to impose concurrent victim surcharges [VS]? The Ontario Court of Appeal unanimously says no. In short, the Court held that “there is no discretion in the court to circumvent this automatic imposition [of the VS] by ordering concurrent victim surcharges.” [Fedele @1]

The Ontario Court of Appeal released the decision in Fedele2017 ONCA 554 on the same day that it unanimously upheld the constitutionality of the surcharge: Tinker2017 ONCA 552

Fedele stole a wheel of cheese and a pack of razor blades. He plead guilty. A pre-sentence report revealed that Fedele was supported by the Ontario Disability Support Program. He was sentenced to five days in jail and 18months probation. The sentencing judge ordered that the victim surcharge of 100$ per conviction be applied concurrently.

The Crown appeal to the Superior Court was dismissed. 

The Summary Conviction Appeal court analogized the VS to a DNA order, in other words, “one order will suffice even where there are multiple convictions” [@9]

The Court disagreed and held that:

the legislative text and legislative history of s. 737 make it clear that victim surcharges are to be imposed for each and every offence and as is the case with fines, there is no judicial discretion in a court to impose victim surcharges concurrently. [@13]

First, the court noted that while

[i]t is true that s. 737 does not remove the discretion to impose victim surcharges concurrently or consecutively, this misses the point. The proper question to ask is whether such a discretion exists. In my view, it does not. [@32]

Second, the Court explained that the terms concurrent and consecutive do not apply to monetary amounts:

[c]oncurrent and consecutive are concepts that apply to periods of time. There can be concurrent sentences of incarceration or concurrent prohibitions on driving. Fines and surcharges are not punishments which are measured in time – they are measured in amounts of money. [@34]

In short, there is no discretion to circumvent the VS.  

LT

Tried to go to rehab; ONCA said no, no, no

Clouthier’s blood alcohol was over the legal limit; he drove anyway. He drove badly and dangerously. Clouthier rear-ended another motorist as he approached an intersection; he fled from the accident. He did so by reversing over the median and heading into a residential area. There he rear-ended a second vehicle. He fled from that accident too- accelerating away at speeds over 100km/hr. He collided head on with another vehicle. One of the passengers of that third vehicle sustained serious injuries and need emergency surgery. Clouthier climbed out of the window of his truck and tried to run away. Witnesses captured him and held him until police arrived.

Clouthier plead guilty to impaired operation causing bodily harm, dangerous operation causing bodily harm and two counts of failing to stop at the scene of an accident.

He was remorseful. He took steps prior to sentencing to address his addictions and depression. By the time of sentencing he was gainfully employed.

Clouthier sought a suspended sentence or alternatively that he be sentenced to 90days and be permitted to serve the time on weekends.

The Crown argued for a sentence of 12months incarceration followed by probation.

The sentencing judge decided that a period of 5months in custody was the appropriate sentence, however she offered Clouthier the opportunity to serve the sentence in two intermittent installments. Clouthier accepted. He served 90days intermittently and then returned to court months later to be sentenced to a further 60days intermittent sentence.

The Crown appealed arguing that the imposition of consecutive intermittent sentences was illegal and that the sentence was manifestly unfit. The Ontario Court of Appeal agreed: 2016 ONCA 197.

Watt JA writing for the Court held:

What happened here was that, by imposing intermittent sentences at different times, the trial judge did indirectly what she could not have done directly without breaching the 90-day limit in s. 732(1) of the Criminal Code. The result is an effective sentence that defeated the very object of s. 732(1) and disregarded the correctional principles that it was meant to serve. [@para 38]

With respect to the fitness of the sentence the Court held that the five month sentence imposed “fails to reflect in any meaningful way the predominant sentencing objectives of general deterrence, denunciation, and protection of the public.” [@para 58]

Moreover the Court noted that it was an error not to have imposed consecutive sentences for the two counts of failing to stop at the scene. Although the sentences for failing to stop could have been made concurrent to each other to give effect to the principle of totality “they should have been made consecutive to the sentences for the dangerous and impaired offences.” [@para 60]

The Court held that the appropriate sentence in this case would have been 15-18months followed by a 12 month period of probation. This is so notwithstanding the positive rehabilitative steps Clouthier took to address his addictions.

In deciding whether to reincarcerate the offender the Court explained that:

These were serious offences that demonstrated a complete disregard for the lives and safety of others lawfully using the streets of an urban area on a summer evening. Repeated flights from the scenes of the accidents displayed a callous indifference to fellow motorists. No undue delay has occurred between service of the sentence and the hearing and determination of the sentence appeal. Despite the respondent’s remorse and significant rehabilitative steps, I see no reason to stay the operation of the sentence I consider appropriate in this case. [@para 64]

The ONCA ordered Clouthier to surrender himself within 72hours to serve a further 9months in custody.

Active efforts at rehabilitation are an important consideration at sentencing however they cannot displace the predominant sentencing objectives of deterrence, denunciation and protection of the public. As Watt JA held, those efforts are what make the appropriate range 15-18months “were it not for these positive attributes, a fit sentence would involve a more lengthy period of incarceration.” [@para 61]

 

The victim surcharge...

Nancy Bateman pleaded guilty to assault. Bateman had thrown a bowl of hot soup at the victim while the two were residents in “a transitional housing facility in the 200 block of Main Street in Vancouver” [para 4]. The sentencing judge imposed an absolute discharge. In relation to the victim surcharge the appeal court noted that the following transpired:

In relation to the mandatory $100 victim surcharge under s. 737 for this summary conviction offence, Defence counsel said the accused wanted the victim surcharge to be payable forthwith and to be found in default. After consulting with his client, however, he changed this submission and said she wanted to have six months to pay. The trial judge acceded to this request, stating: 
THE COURT:  Yes. What I will do presently today is I will give Ms. Bateman six months to pay the surcharge.
Another lawyer who happened to be in the courtroom asked if she could “assist the court” and then suggested a “rather unique, relatively creative approach” using the fine option program in s. 736.
Over the objection of the Crown, the trial judge then said that she was going to deem the victim surcharge paid under s. 736(3). When Crown counsel asked by what mechanism, the trial judge stated: 
THE COURT:  I am just deeming it paid. 
Proceedings were then adjourned, and the accused and both counsel left the courtroom.
Later the same day, at the request of the trial judge, both Crown and defence counsel returned to the courtroom. In the absence of the accused, the trial judge announced that she was going to enter a stay of proceedings on the charge. When Crown counsel asked the trial judge to provide reasons, the trial judge said:
THE COURT:  Well, if the matter had proceeded to trial, I believe the young woman would have been acquitted. And she was not – she clearly wanted to proceed, most likely because of her mental health issues. And perhaps those should have been taken into account when the charge approval decision was made.
[Paras 9-13].

The Crown appealed. The appeal was allowed in relation to the stay: 2015 BCSC 2071. Bateman conceded that the judge was functus. The appeal court held that the sentencing judge’s reasons did not “provide a proper basis for entering a stay” [para 15].

Turning to address the victim surcharge, the appeal court held:

I agree with counsel for Ms. Bateman that notwithstanding s. 737(4), a sentencing judge retains a discretion to allow no time to pay, pursuant to s. 734.7(2). This is because s. 737(9) provides, inter alia, that s. 734.7 applies, with any modifications that the circumstances require, in respect of a victim surcharge, and that any reference to “fine” in s. 734.7 must be read as if it were a reference to “victim surcharge”. [Para 32].

Notwithstanding this finding, the court imposed the surcharge and granted six months to pay – the initial position advanced by Bateman.

With respect, there are at least two problems with this finding. First, having concluded that the offender lacked the means to pay it is illogical and improper to impose the surcharge and vary the time to pay causing an immediate default. In British Columbia the offender would have been grant 2 months to pay. If he did not pay – because, as the court found on the day of sentencing he was unable to – then no jail would be imposed: see R v Wu, 2003 SCC 73. In effect, the court has imposed an unnecessary jail term.

Second, the point of section 734.3 (which allows for the court to vary time to pay) is to allow an offender more time to pay. Overriding the statutory time to pay – forcing immediate default – is not only inconsistent with the dicta in Wu (that courts should not determine future ability to pay at the time of sentencing) but it also appears to be a means to avoid the imposition of the surcharge.

DM

Toews Counting: one day for one day

Trevor Toews was convicted of second-degree murder. With respect to sentence, the Crown and defence were ad idem regarding the appropriate period of parole ineligibility - 10 years. The sentencing judge accepted this position. The judge, however, reduced the 10 years to 6 years and 8 months to "reflect an enhanced credit for pre-trial custody" [para 1]. The Crown appealed that ruling. The Court of Appeal allowed the Crown's appeal: 2015 ABCA 167.   

Enhanced credit may be given where a court imposes a jail sentence, pursuant to section 719(3.1). The discretion to do so, provided in that section, has no application to life sentences for murder; that sentence is prescribed by 745(c). Time spent in custody prior to sentencing for murder is included in the calculation of the period of parole ineligibility but enhanced credit cannot be given in relation to that time [paras 3-4]. 

There is nothing in the statutory scheme that expressly supports a discretion to reduce the period of parole ineligibility below the statutory minimum. The absence of a specific provision precluding the discretion cannot support the existence of a residual discretion contrary to the statutory scheme. These conclusions are consistent with decisions of this Court and other appellate courts: R v Stephen1999 ABCA 190 (CanLII)R v Tsyganov,1998 NSCA 227; R v Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 161 OAC 169 (CA).
The respondent argues that had he known there was an issue as to the availability of an enhanced credit, he may have led evidence to justify the credit. This argument cannot succeed. No amount of evidence can overcome a lack of jurisdiction. [Paras 4-5]

DM

Victim Surcharge, constitutionally sound

The victim surcharge codified in section 737 of the Criminal Code has survived yet another challenge to its constitutional validity: R c Boudreault, 2015 QCCQ September 23, 2015 (currently unreported). Alex Boudreault committed lots of criminal offences, some summary and some indictable. By the time sentence was to be imposed he had entered pleas of guilt to 19 charges including numerous breaches of conditions, residential break and enter and assault with a weapon.

Some of the offences Boudreault plead guilty to pre-dated the amendment to s737 of the Code, meaning that the judge retained a discretion to vary or waive the amount owed by the imposition of the surcharge. Some of the convictions post-dated the amendments to s737 of the Code. The amendments removed judicial discretion to vary or waive the surcharge and also increased the amount of the surcharge. Boudreault was to owe $1400 in mandatory surcharges and a maximum of $1200 in respect of the pre-amendment convictions.

Boudreault sought a declaration that the mandatory victim surcharge violated section 12 of the Charter and was therefore unconstitutional.

Boudreault testified that:

·         He had dropped out of high school at the age of 15

·         He has never had stable employment

·         He has not received any income since November 2013

·         Upon his release from prison he wishes to complete his high school diploma

In light of these circumstances Boudreault argued that his limited earning capacity results in a grossly disproportionate effect of the surcharge provisions such that the provision is unconstitutional.

Boyer J of the Quebec provincial court rejected this argument. The Court held that notwithstanding the fact that the offender is both of limited means and with limited earning capacity an extension of the time to pay the surcharge would inure to the benefit of the offender. Moreover, non-payment of the surcharge does not result in consequences to the accused. It is only by application of the regulation that allows for the issuing of a warrant in default of payment that triggers the potential for consequences due to default.

Additionally, the province of Quebec offers a fine option program. Those with surcharge sums due may also avail themselves of the fine option program. In fact during his testimony the offender conceded that he was contemplating making use of a fine option program so that he could satisfy the outstanding debt.

In fact, in Quebec any offender in custody is notified by letter prior to their release of the amount of surcharges owing and the availability of a fine option program. Evidence lead at the hearing revealed that an 8hour work day at minimum wage results in 80$ paid to the outstanding surcharge debt. In order to pay off the mandatory $1400 the offender in this case would have to complete 17.5 consecutive days of work.

Boyer J noted that “if the accused considers that the total amount of the surcharges he owes are excessive, he has only himself to blame, given the high number of offences he committed; this does not render the punishment of the surcharge a cruel and unusual punishment.” [translated from the original French at para 44]

Having found no violation of s12 on the basis of the actual circumstances of the offender before the court, Boyer J then turned to a consideration of reasonable hypotheticals.

First, the court considered a scenario where an accused was charged with 56 counts of unlawfully at large. Although, not expressly mentioned in this particular decision the reference to a crime against the administration of justice such as unlawfully at large, as opposed to a crime perpetrated against a named victim harkens to arguments raised on other constitutional challenges to this provision based on a lack of connection between the purpose of the legislation and mechanism by which the purpose is achieved. In any event, Justice Boyer dismissed the example as an unreasonable hypothetical noting that much like the case of the offender before the court, the offender alone is responsible for the number of counts they are facing- not s737 of the Code.

Justice Boyer then cited with approval a decision from the Nova Scotia Court of Appeal:

The trial judge erred in law in his analysis concerning the application of section 12 of the Charter. He could not base his finding that the sentence provided for in the Excise Act constitutes cruel and unusual punishment simply on the fact that Desjardins is on welfare and that the Crown did not establish his ability to pay the fine. Courts are not ignorant of the ease with which many convicted persons can prove their financial incapacity by showing their lack of legal financial resources at the moment of sentencing. [at para 29]

Although not referenced by Justice Boyer this is entirely consistent with the Supreme Court of Canada’s determination in Wu where the majority of the Court held that the present inability of an offender to pay cannot be the basis to conclude that he will, for all time, be unable to pay.

As stated, the trial judge gave the respondent no time to pay. This was in accordance with a request from the defence, which sought to lay the basis for a conditional sentence. But it was an error. If it is clear that the offender does not have the means to pay immediately, he or she should be given time to pay: see R. v. Andrews (1973), [1974] 2 W.W.R. 481 (B.C. S.C.), and R. v. Brooks, [1988] N.S.J. No. 94 (N.S. C.A.). The time should be what is reasonable in all the circumstances: R. v. Beaton (1984), 49 Nfld. & P.E.I.R. 15 (P.E.I. C.A.), and R. v. Tessier (1957), 21 W.W.R. 331 (Man. Co. Ct.). In Canada (Attorney General) v. Radigan (1976), 33 C.R.N.S. 358 (Que. C.A.), the Quebec Court of Appeal allowed the offender to pay a fine of $5,000 through semi-annual instalments of $625. The courts have considerable flexibility to respond to the particular facts of an offender's situation. It is wrong to assume, as was done in this case, that the circumstances of the offender at the date of the sentencing will necessarily continue into the future.
[. . .]
An offender's inability to pay is precisely the reason why time is allowed, not a reason why it should be altogether denied: R. v. Natrall (1972), 9 C.C.C. (2d) 390 (B.C. C.A.), at p. 397; R. v. Zink (1992), 13 B.C.A.C. 241 (B.C. C.A.). It is true that the fine could not have been paid immediately, and perhaps never in full, but the mandatory minimum fine scheme imposed by Parliament was effectively nullified by immediately shifting the penalty from the respondent's financial interest to his liberty interest. R v Wu, 2003 SCC 73 at paras 31 and 33 (SCC)

Justice Boyer also rejected the offender’s hypothetical scenario involving an offender subject to an absolute discharge.

The Court found that the offender could not possibly be sentenced to an absolute discharge given the seriousness of the offences before the court. Boyer J held that it was incumbent on the accused to raise reasonable hypotheticals and not hypotheticals that are implausible or hard to imagine.

The Court concluded that s737 is constitutionally sound and imposed the mandatory surcharges. The Court then waived the imposition of the discretionary (pre-amendment) surcharges.  Ironically, judges consistently waiving the surcharge was one of the leading factors in the decision to amend s737 of the Code and make the surcharge mandatory in all cases. 

LT

Not so Endless Summer(s)

Mr Abdullahi was convicted after a trial of four offences relating to the possession of loaded restricted firearm. The only issue at trial was whether the accused was in possession of the firearm; he claimed he was not. The trial judge rejected the accused’s evidence and convicted him of the offences before the court. At the time Abdullahi was found to be in possession of the loaded restricted firearm he prohibited from doing so.

The trial judge imposed a global sentence of 6 years. The breakdown of the sentence was as follows:

  • Count 1:  Possession of a loaded restricted firearm (s. 95(1)):  4 years;
  • Count 3:  Possession of a firearm knowing its possession is unauthorized (s. 92(1)):  1 year consecutive to the s. 95(1) charge; and
  • Counts 4 and 5:  Possession of a firearm and possession of ammunition while prohibited:  1 year consecutive to the s. 95(1) and s. 92(1) sentences, but concurrent to each other.

Quigley J credited Abdullahi at a rate of 1.5:1 for 72 days of presentence custody as those days the offender was held in very crowded conditions. Abdullahi received no credit for the remaining 448 days of presentence custody.

Abdullahi appealed conviction and sentence.

The appellant’s main argument on the sentence appeal was that the trial judge erred in his assessment of the credit for pre-sentence custody. The Court of Appeal rejected that argument: 2015 ONCA 549.

In dealing with this argument the Court of Appeal noted first, that the sentencing judge did not have the benefit of the Supreme Court’s judgment in Summers, 2014 SCC 26.

The Court of Appeal briefly reviewed the principles in Summers and summarized them as follows:

First, the quantitative rationale for an enhanced credit is grounded in the loss of eligibility for early release and parole during pre-sentence custody.

Second, the qualitative rationale for an enhanced credit is to be applied to account for the relative harshness of the conditions in a detention center.

The Court of Appeal noted that the trial judge correctly applied the qualitative rationale in accounting for the harsh conditions during the 72 days where Mr Abdullahi shared a cell with two others.

The Court then noted that although loss of eligibility for early release is generally sufficient to grant enhanced credit it does not mean that such a credit is automatic. In fact, the specific circumstances of a particular offender may result in an adjustment or even denial of such a credit.

The Court held the following:

As observed in Summers, at para. 71, the quantitative rationale, that is loss of eligibility for early release and parole, will generally be a sufficient basis upon which to award credit at 1.5:1.  The credit is not, however, automatic.  If the circumstances of a specific offender render the possibility of early release or parole highly unlikely, then a trial judge can adjust, or even refuse enhanced credit:  Summers, at paras. 71, 79; R. v. Nelson, 2014 OJ. No. 5729, at para. 51-53. @para 18

In Mr Abdullahi’s case the Court noted that:

To assist in the proper application of Summers, this court received a report from the Ministry of the Solicitor General and Correctional Services outlining the appellant’s conduct since his incarceration of these charges.  His conduct could hardly be worse.  Unfortunately, his conduct since incarceration clearly demonstrates that he continues to engage in serious criminal and anti-social conduct even while in custody.  There is no realistic possibility that the appellant will be given any form of early release or parole.  Applying the quantitative rationale underlying enhanced credit for presentence custody, the appellant is not entitled to any credit beyond 1:1 credit. @para 19

As such even though the sentencing judge did not have the benefit of the decision in Summers, the Court of Appeal found no error in the allocation of the credit for pre-sentence custody.

This decision serves as an important reminder that the enhanced credit is not automatic but requires a quantitative and qualitative analysis, based on a sound evidentiary record, to be undertaken by the sentencing judge. 

LT

Parity does not mean Equal

Sahota participated in a prison riot. He was part of a group that attacked another smaller (in numbers) group at the Joyceville Prison. Ultimately, the attack focused on a single victim who was beaten severely. Sahota’s involvement in the attack was viscous and “substantially in excess of anything done or even attempted by the other inmates” [@para 2].

Sahota participated in the initial attack, he then returned to the victim who lay bloody and unconscious on the floor. Armed with a pool cue, Sahota speared the victim in the groin. He pulled down the victim’s pants and speared him again in the genitals with the pool cue. He spat on the victim and stomped on him before leaving the room [@para 3].

Sahota was charged with attempted murder but plead guilty to the lesser and included offence of aggravated assault. The Crown sought a sentence of 8 to 10 years; the defence sought a term of imprisonment of 3 ½ to 5 years. The sentencing judge imposed a sentence of 7½ years less 45 days of pre-sentence custody. Sahota appealed: 2015 ONCA 336

The sentencing judge had heard and sentenced the other offenders involved in the attack. Sahota argued that the sentencing judge failed to properly apply the principle of parity  as required by section 718.2(b) of the Code.

In dismissing the appeal the Court held that “this principle is one of parity, not equivalence” [@para 6].  The Court explained that “the principle of parity means that any disparity between sentences for different offenders in a common venture requires justification” [@para 7]. In this case the actions of the offender in returning to the room, delivering blows to the unconscious and injured victim, and spitting on the victim clearly set this offender apart. The fact that the other offenders were sentenced on the basis of joint submissions:

did not compel [the sentencing judge] to impose an equivalent or near equivalent sentence on the appellant for an offence that reflected a significantly greater degree of  moral blameworthiness. [@para 8]

Before concluding the Court of Appeal noted that:

it was not inappropriate for a trial judge to consider that a guilty plea in the face of an overwhelming case may not be accorded the same weight as one in which an accused pleads guilty and gives of significant litigable issues. [@para 9]

In Sahota’s case the evidence of his involvement was overwhelming, whereas the identity of the individuals who participated in the initial attack was less clear and as the Court of Appeal put it each of them “may have challenged the Crown’s case on identification.”  [@para 9]

LT