Pending & Prominent: Reviewing Crown discretion

I wrote about the case of R v Gill, 2011 ONSC 1145 in Mack's Criminal Law Bulletin and have blogged about it on two occasions: Exercising, or is it excising, Crown discretion; Protecting the Quasi-Judicial Function of the Crown.  That case was argued before the Ontario Court of Appeal on Thursday.  We will see if they agree with my conclusion:

The decision by the Crown to file notice is one that goes to the nature and extent of the prosecution; such discretion, therefore, should only be reviewable in accordance with the principles in R v Power, [1994] 1 SCR 601. 

DG Mack

News: Two years less a day for Luangpakham

Sommit Luangpakham was sentenced today to two years less a day by Justice Monique Metivier [see report by Norman Jack and Anna Drahovzal; see also CBC report].  Luangpakham was convicted by a jury of, inter alia, dangerous driving and failing to remain after he struck and injured five cyclists (Mark White, Cathy Anderson, Robert Wein, Rob Harland and Hilary McNamee) on January 19, 2009 while driving his van in Kanata [see David Hollingsworth's review of the evidence of the cyclists in his blog Personal Injury and Accident News]. 

The sentence also included a one year driving prohibition.  

DG Mack

New & Notable: Always double check your math!

Cuong Luong pleaded guilty to possession of a loaded restricted firearm.  The mandatory minimum sentence for this offence - as it was his second - was five years.  A joint submission was put before the sentencing judge of five years.  Luong had spent 16.5 months in jail prior to sentencing.  After giving Loung credit - at 2 for 1 - the sentencing judge intended to impose a sentence that would equate to five years.  However, in following the joint submission, the sentencing judge also followed the erroneous math of the Crown who said the remaining time would be 17 months.  In fact it should have been 27 months [five years = 60 months; 60 - (16.5 X 2) = 27].

The Crown brought an application before the sentencing judge to correct the error; the sentencing judge held that he was funtus officio.  (As an aside, it is not clear that the sentencing judge was in fact funcus officio; there is authority that a judge can clarify a sentence after it is imposed: R v Malicia, 2006 CarswellOnt 5539 (CA)).   Given the judge's view that he was functus, the Crown brought an appeal: 2011 ONCA 780.

On appeal the Court of Appeal agreed that the sentence was illegal.  The respondent argued, however, that he would be prejudiced by the addition of 10 months.  Even if that were so, the court held the error must be corrected. 

The Court of Appeal corrected the sentence and added 10 months.

DG Mack

Quotable Quote: Context is everything

Robert Julien pleaded guilty to, inter alia, possession of cocaine for the purposes of trafficking.  During submissions the Crown argued that the prevalence of this type of offence in the Cornwall area should be an aggravating factor.  The Crown did not call any evidence to support this submission.

In rendering his decision on sentence Pelletier J considered this threshold issue: R v Julien, 2011 ONSC 5989. Pelletier J concluded that "emperical [sic] or statistical evidence is required to advance, as an aggravating factor, that a given offence is prevalent in the community as to be [sic] merit a sentence which may be more punitive than it might otherwise be" [para 4]. 

Pelletier J continued, however, and added, "a Court is capable, as an observer of its own process, to consider whether the prosecution of a particular crime represents either an isolated or frequent occurrence" [para 5]. His Honour continued with the following quotable quote:

While the recurrence of a certain type of prosecution cannot be viewed as an aggravating factor absent evidence showing that it is disproportionately frequent, it can nonetheless be examined and, if appropriate, considered as one factor in balancing the various sentencing objectives. Stated otherwise, a Court dealing with an offense seldom before the Courts may be less inclined to consider denunciation and deterrence as primary sentencing objectives, depending of course on the seriousness and nature of the offense. Conversely, a Court dealing with the disposition of an offense that is frequently before the Court would, logically, consider that the public safety objectives of the sentencing exercise call for a sentence with a sufficient denunciatory and deterrent effect. In all of the circumstances, I have concluded that there is no factual foundation for concluding that the possession of cocaine for the purposes of trafficking represents a societal problem in Cornwall and the surrounding area beyond what is being experienced in other communities in Ontario and the rest of the country. That said, offenses of trafficking in hard drugs are frequently before the Courts in this community. In addition, the Court is regularly confronted with cases involving serious offenses against the person, including homicides, where drugs are a central feature of the commission of the offense. Cases involving drug trafficking are not isolated matters before this Court, nor are cases where drugs figure prominently in related property and serious personal injury offenses. 

Accordingly, the determination of an appropriate sentence in the present case takes into consideration, along with other factors, that the use and sale of addictive and destructive drugs is a societal problem that has not escaped the City of Cornwall and the surrounding area; and one which must be confronted having regard to need to denounce and deter the conduct as a means of promoting a safe and peaceful community [paras 6-7]; [emphasis added].

Pelletier J sentenced Julien to 15 months incarceration and 18 months probation.

DG Mack

New & Notable: 10 Years Imposed on Roks by OCA

Adrian Roks recently had his second-degree murder conviction overturned by the Ontario Court of Appeal: R v Roks, 2011 ONCA 526.  I blogged about this case in a post entitled "The Paperback Novelist Strikes Again". 

The Court of Appeal has now exercised its power under section 686(3)(b) of the Code and imposed a sentenced for the manslaughter conviction it substituted in place of the second-degree murder conviction: R v Roks, 2011 ONCA 618.  Roks received the equivalent of a ten year sentence less pre-sentence custody and time served prior to the Court of Appeal's ruling [paras 27-28].

 

DG Mack

New & Notable: Setting the Record Straight on Jarvis

In the recent decision of R v Woodward, 2011 ONCA 610 the Ontario Court of Appeal set the record straight about its previous decision in R v Jarvis, 2006 CarswellOnt 4863 (CA). It also sent a clear message about the appropriate principles and range of sentencing in luring and child sex assault cases.

Thomas Edward Charles Woodward was charged with offences including luring (172.1(1)(c)), sexual touching (151(a)) and sex assault (271) in relation to his Internet luring and sexual contact with a young person. This young person was 12 years old and lived with her parents. In August or September 2006 Woodward sent a private text message to the complainant – he was 30 years old at the time. The text message originated through a chat site that the complainant could access via her mobile phone. The text message asked the complainant if she would sleep with him for $57 million. The complainant did not reply. A subsequent text message again asked the complainant if she wanted to have sex; this time she replied [para 7].

That response led to further texts numbering in the hundreds. These texts ultimately led to a meeting [para 8]. In the lead up to this meeting Woodward had offered the complainant increasing amounts of money to sleep with him; he even let her listen in on a call that was purportedly with a Bank of Montreal employee who indicated that Woodward had $300 million in his account. This lead the complainant to believe that Woodward had that kind of money and influenced her decision to meet him as her family was experiencing financial problems [para 10]. 

When the complainant met with Woodward he purportedly called the Bank of Montreal and transferred money into an account in her name. Thereafter he initiated sexual acts with the complainant including having her perform fellatio on him and having sexual intercourse with her [para 12]. 

Woodward was convicted after trial by Justice Nicklas. The judge ultimately sentenced Woodward to six and a half years jail. He appealed.

On appeal the appellant the court outlined the ground of appeal relating to the sentence as follows:

The appellant submits that the six-and-one-half year sentence he received manifestly exceeds the “range of reasonableness for a one-time isolated incident with no overt threats or violence and no abuse of trust or authority.” He points to a number of authorities, including some from this court, involving offenders who engaged in online sexually explicit conversations with undercover police officers posing as children under the age of 14 [para 53].

One of the cases relied upon by the appellant was Jarvis. With respect to Jarvis, Moldaver JA – on behalf of the court – noted that the reliance appears to be based on para 31 of that decision wherein Rosenberg JA offered the following: “decisions of trial courts that were placed before us suggest that the range of sentence for this offence [luring] generally lies between twelve months and two years” [para 54].

Moldaver JA then turned to discuss whether that comment properly set a range. After suggesting that was not the intention of Jarvis, Moldaver JA then offered the following clear statement about the future impact of Jarvis:

Even if Jarvis did purport to set a range of 12 to 24 months for the offence of luring, that range needs to be revised given the 2007 amendment in which Parliament doubled the maximum punishment from 5 years to 10 years. Moreover, if it is shown through the introduction of properly-tendered evidence that the offence of luring has become a pervasive social problem, I believe that much stiffer sentences, in the range of three to five years, might well be warranted to deter, denounce and separate from society adult predators who would commit this insidious crime [para 58].

Moldaver JA ultimately upheld the six and a half year sentence imposed by Justice Nicklas and concluded with the following quotable quote:

Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term. The five-year sentence imposed on the appellant for the sexual assault he committed on the 12-year-old complainant is not excessive. In the light of the appellant’s past criminal activity and the lack of any meaningful mitigating factors available to him, if anything, it was lenient. While acknowledging that trial judges retain the flexibility to fashion a fit and just sentence in the particular case, crimes like those committed by the appellant will typically warrant mid- to upper-level single digit penitentiary sentences. The additional 18 months the appellant received for the offence of luring was entirely appropriate and did not render the global sentence excessive [para 75]; [emphasis added].

DG Mack

New & Notable: Deterring Commercial Fraud

Garth Drabinsky and Myron Gottlieb are headed to jail; the Ontario Court of Appeal today dismissed their conviction appeals: R v Drabinsky, 2011 ONCA 582.  They wont be spending as much time there as was originally thought however. 

Drabinsky and Gottlieb established Cineplex in the 80s.  The two quickly built that business to great success and in 1989 left Cineplex after acquiring its live entertainment division.  The two then formed a partnership called MyGar.  This company operated until the sprint of 1993 when it made a public offering and became a public company known as Livent. 

Drabinsky and Gottlieb were large shareholders in Livent and fully controlled its operations.  The business was a notable success.  In 1998 there was a significant change in the management of Livent when new investors came in to run the financial side of the business. 

The new accountants began to ask some questions.  It turned out that the books of Livent had been fraudulently altered and did not reflect the true financial state of the company.  Drabinsky and Gottlieb were immediately locked out of the company and the new investors began to pursue them in relation to the fraud. 

Livent declared bankruptcy five months later. 

Drabinsky and Gottlieb were ultimately charged and convicted.  Drabinsky was sentenced to seven years jail and Gottlieb to six years [para 154].  They appealed.

After dismissing the conviction appeal the court turned to consider the sentence appeal.  In doing so the court considered, inter alia, the argument advanced that the judge erred in principle by focusing on general deterrence; the appellants argued that there was "little concrete evidence to support the contention that longer sentences provide more effective general deterrence than shorter jail terms" [para 158].  In response thereto the court held:

[T]his court and all other provincial appellate courts have repeatedly held that denunciation and general deterrence must dominate sentencing for large scale commercial frauds. Denunciation and general deterrence most often find expression in the length of the jail term imposed [para 160]; [emphasis added].    

The court then considered the range of available sentences and offered the following comments in relation to the suitability of the sentence: 

 

First, the investigation and prosecution of crimes like these is difficult and expensive. It places significant stress on the limited resources available to the police and the prosecution. An early guilty plea coupled with full cooperation with the police and regulators and bona fide efforts to compensate those harmed by the frauds has considerable value to the administration of justice. The presence of those factors, depending of course on the other circumstances, may merit sentences outside of the range.

Second, individuals who perpetrate frauds like these are usually seen in the community as solid, responsible and law-abiding citizens. Often, they suffer personal and financial ruin as a result of the exposure of their frauds. Those factors cannot, however, alone justify any departure from the range. The offender’s prior good character and standing in the community are to some extent the tools by which they commit and sustain frauds over lengthy time periods. Considerable personal hardship, if not ruin, is virtually inevitable upon exposure of one’s involvement in these kinds of frauds. It cannot be regarded as the kind of unusual circumstance meriting departure from the range [paras 166-167]. 

 Nonetheless, the Court of Appeal held that the failure of Livent could not be attributed solely to the appellants.  The causes of the failure were "numerous and complex"; the losses caused by the bankruptcy cannot be laid "entirely at the feet of Drabinsky and Gottlieb" [para 182].  In the absence of proof of the actual financial loss a sentence lower than that imposed was appropriate.  
 

Based on this finding - one which was not made by the trial judge - the Court intervened and reduced the sentences to five years for Drabinsky and four years for Gottlieb.

 

DG Mack

New & Notable: Addressing the Scourge of Guns and Drugs

Tyler Batson shot and killed Paul Marcelus in an Ottawa apartment on 17 December 2008. Batson testified at his trial that he shot Marcelus during a struggle that had erupted when he attended the apartment to buy drugs. The Crown had alleged that the shooting was an execution. 

Batson was convicted of second-degree murder – apparently the jury had not found, beyond a reasonable doubt, that the shooting was an execution.

Last week Justice Roy sentenced Batson to life imprison (the mandatory sentence) with an order that he serve 12 years before being eligible for parole. As reported by Andrew Seymour in a 9 September 2011 Ottawa Citizen article, Judge condemns guns, drugs before sentencing Batson to life Justice Roy offered the following comments in support of increasing the parole ineligibility period above the minimum 10 years: “The combination of guns and drugs result in very tragic and serious, deadly consequences”.

The concern over the carrying and use of guns in the community has also recently been noted in the case of R v Chevers, 2011 CarswellOnt 8844, 2011 ONCA 569. Chevers was convicted of attempted murder. The trial judge described the aggravating circumstances in that case as follows:

The facts here are alarming. It calls for, because of the nature of the event and specifically the use of a handgun, greater sanctions for the benefit and welfare of our community and for the public interest.

Here we have a situation where Mr. Chevers, in an unprovoked, premeditated, cold-blooded manner, attempted to murder [the victim], and by mere chance, he missed: probably because he was using a 22 calibre weapon [para 4].

Chevers was sentenced to 15 years jail. He appealed.

The Court of Appeal held that sentences for “planned executions involving the use of loaded firearms” warrants double digit sentences. In upholding the sentence the court noted that the premeditation, use of a prohibited handgun, the appellant’s criminal record and the impact on the community justify such a sentence [paras 8-9].

 

DG Mack

New & Notable: Fighting an Intractable Problem?

Impaired driving has proven to be an intractable problem.  Society's abhorrence of it is palpable.  According to MADD Canada, in 2007 at least 1,239 of the 3,045 motor vehicle fatalities in Canada were alcohol related.  It is not surprising, therefore, that the Ontario Court of Appeal recently recognized the reality that there are - and needs to be - increases in the sentences being imposed in impaired driving causing death cases: R v Kummer, 2011 ONCA 39.

As the dangers of impaired driving have become increasingly evident and as this problem has continued to demonstrate its intractability, the sentences imposed where impaired driving results in death have increased [para 15]; [emphasis added].

In a decision released August 31 Jack Tobin was sentenced to three years for impaired driving causing death: R v Tobin, August 31, 2011 (see copy of judgement at Ottawa Citizen). 

Tobin had been out drinking with friends including the victim, Alex Zolpis.  Eventually the group made their way back to Tobin's truck which was parked in a parking garage in downtown Ottawa.  The group continued to drink in the truck and one of them said "a couple of times to Mr Tobin 'you are not driving' and he replied 'no'" [para 4].  He did drive however.  He first drove his truck up a couple of levels to the top of the parking garage which was uncovered and had two foot wall surrounding it.  Tobin then began doing donuts.  Somehow his friend Zolpis fell out.  He was caught under the truck and was killed.

Tobin pleaded guilty. 

Andrew Seymour (reporter for the Ottawa Citizen) reported Tobin's comments in court at the sentencing hearing:

Jack Tobin said he hoped his "unforgivable" and deadly mistake while driving drunk would be a lesson to others during an emotional apology in court Friday to the family of the friend he killed. 

Others likely had hoped that not only his mistake but also the sentence imposed for it would be a lesson to others.  Some are disappointed at the sentence imposed and feel it will not serve as a lesson.  Zolpis' fiancé offered the following in this regard: "Jack Tobin gets one year in jail [referring to the fact that he will likely be out on parole in one year] and Alex gets his life lost".  (See similar discontent expressed in comments on the CBC).

The discontent with the sentence is understandable perhaps.  A review of recent cases from the Ontario Court of Appeal might have lead some to believe more jail time would have been imposed.

In Her ruling Judge Maisonneuve reviewed some of those cases: R v Ramage, 2010 ONCA 488 and R v Junkert, 2010 ONCA 549.  In those cases the Court of Appeal upheld sentences of four and five years respectively for impaired driving. 

More recently the Court of Appeal upheld a sentence of five years in R v Niganobe, 2010 ONCA 508, four and a half years in R v Turnbull, 2011 ONCA 121. 

While each case will turn on its own facts and there is an almost infinite range of mitigating and aggravating factors, it is apparent that the Court of Appeal is recognizing by upholding an increase in sentencing for impaired driving causing death cases.  

Kumm  er is another example of this trend.  In that case the Court of Appeal upheld a sentence of eight years.  Kummer had no criminal record but other factors weighed heavily in imposing and upholding that sentence:

The appellant did not have a criminal record and he cannot be treated as having one. His driving record, however, is significant. In October of 2007, the appellant was convicted of careless driving and failing to report an accident in relation to an incident in which, after consuming three drinks and allergy medication, he drove onto the runway at the London airport and jumped approximately 60 metres through airport antennas. He then left his car, walked through the airport terminal, and took a cab home. The incident caused $127, 000 in damage to the vehicle and the airport.

The 2007 incident should have served as a "wake-up call" to the appellant. It should have impressed upon him the danger he posed to himself and others when driving in an altered state. Clearly it did not. Following the 2007 incident, the appellant's parents spoke with him about the dangers of drinking and driving. This also obviously had little effect on him. The appellant received one final warning just minutes before the fatal crash. His friend and passenger, Randy Psaila, warned him to slow down. Again, tragically, this warning had no impact on the appellant. While it would be difficult to believe that any person in Canada could be ignorant of the dangers of drinking and driving, the appellant had particular reason to be aware of the risk he posed in doing so. His decision to disregard that risk is an important factor that can and should be considered in determining an appropriate sentence [paras 25-26]; [emphasis added].

The similarities with the Tobin case are notable.  Tobin too had a driving record - 11 speeding convictions and 3 driving suspensions [para 18].  Tobin too had a "wake up call" - another incident of doing donuts after some drinking this time with someone holding onto the roof racks of his car and falling off [para 17].  Tobin also had a brush with the law in regard to impaired driving - on August 29, 2009 he blew 84 and 80 (legal limit is 80) but was not charged [para 17].  Tobin too had warnings just before the fatal incident when one of the passengers said "you are not driving".  Tobin too should have been acutely aware of the dangers of drinking and driving.

Despite these similarities and background the judge imposed a sentence of three years.  In doing so, Her Honour ruled that the "paramount principles of general deterrence and denunciation can be satisfied with a lesser penitentiary sentence" [para 69].

If sentences of four, four and a half, five and eight years have been imposed recently in an attempt to deter and denounce this abhorrent conduct, one might reasonably wonder how a sentence of three years will achieve these objectives.

 

 

DG Mack