New & Notable: The last word on the appropriate sentence

Brandon Adamson was 19 when he broke into his ex-girlfriend’s home and tried to murder her.  He was found guilty by a jury of four offences: attempted murder, assault with a weapon, break and enter, and aggravated assault. He then faced sentencing before Gray J: 2013 ONSC 2365.

 

Justice Gray stayed the convictions for aggravated assault and assault with a weapon pursuant to the principles of Kienapple.

The Crown took the position that a 10 year sentence was the appropriate disposition; Adamson argued that a sentence of 7 years. When the Crown advised the Court of their position on sentence, Gray J offered the following to counsel:

…my initial reaction was that the 10-year sentence proposed by the Crown is too low, and I might consider a longer period of incarceration to be appropriate. As required by appellant authority (eg R v Thompson, 2013 ONCA 202), I afforded both counsel an opportunity to make submission as to why I should not impose a longer sentence [para 19].

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New & Notable: Pham considered in the OCA

Sz-Yin Lu was in Canada on a student visa when her boyfriend hit and killed a pedestrian with his car while she was a passenger in it. The police interviewed Ms. Lu twice about the accident and each time Ms. Lu lied by denying any knowledge of the accident. Eventually, Ms. Lu and her boyfriend came clean with the police. She later pleaded guilty to obstruction of justice and her boyfriend was convicted of dangerous driving causing death and failure to remain at the scene of an accident.

At sentencing in the Ontario Court of Justice, Lu sought a conditional discharge. The Crown recommended a suspended sentence followed by a period of probation as well as community service. The Court imposed a suspended sentence followed by six months probation and 75 hours of community service.

Pursuant to the Immigration and Refugee Protection Act (IRPA), Ms. Lu, convicted of a criminal offence, in spite of her eventual marriage to a Canadian, was inadmissible to Canada on grounds of criminality, as she had been convicted of a criminal offence punishable by indictment.

Lu appealed to the summary conviction appeal (SCA) court but that appeal was denied following the SCA judge’s consideration of the Supreme Court of Canada decision in R. v. Pham, 2013 SCC 15. Lu subsequently appealed to the Ontario Court of Appeal: 2013 ONCA 324.

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Current & Curious: 3 years or not, a minimum is clearly needed

The Ontario Court of Appeal is soon to release a significant decision on the constitutional validity of the mandatory minimum set out in section 95 (3 years). In the meantime, trial courts continue to have drastically divergent views on the appropriate sentence for this offence. While that is, in part, undoubtedly a function of the different circumstances of the offenders and offences, it may also be seen as evidence of why a mandatory minimum was and continues to be necessary.

Vader is an example at one end of the spectrum; in that case the court imposed a 5.5 year sentence where the offender was caught driving around with an "arsenal" of weapons - a sentence which is hard to criticize: 2013 ONSC 109. On the other end of the spectrum, Laponsee is a curious case where the court imposed a 12-month conditional sentence where the offender had brought a firearm and ammunition to the airport - a sentence which is somewhat easier to criticize.

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New & Notable: The nuances of Gladue

The regrettable impact of Canada’s criminal justice system upon the First Nations cannot be denied. Parliament has attempted to address the problem of the overrepresentation of aboriginal offenders in Canadian prisons through section 718.2(e) of the Code. In turn, the Supreme Court of Canada has interpreted and applied that section in cases such as R. v. Gladue and R. v. Wells. In R. v. J.N., the Ontario Court of Appeal is called upon to address a case on the periphery of the issue: 2013 ONCA 251.

 

J.N. was convicted of the sexual assault, sexual interference and invitation to sexual touching for the prolonged sexual abuse of his step-daughter. Although J.N.’s lawyer requested a Gladue report be prepared to assist in the sentencing, Aboriginal Legal Services did not prepare one, as the aboriginal identity of the offender could not be confirmed. He was sentenced at trial to seven years in the prison less two years of pre-trial custody for a total of five years. 

Ultimately, the Court of Appeal in J.N. upheld the sentence but the case is noteworthy for two different facets. 

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Current & Curious: Systemic issues with Quebec PSRs?

Kelvin Earl McPherson was a pimp. In November of 2012 a jury found McPherson guilty of procuring a person to become a prostitute and exercising control. McPherson’s trial proceeded entirely in English.

 

Following the jury’s findings of guilt, Baltman J of the Ontario Superior Court of Justice ordered the preparation of a pre-sentence report (PSR). Sentencing was set to proceed on January 10, 2013: [2012] OJ No 5931 (SCJ).

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New & Notable: Definitely not that "new car smell"...ONCA reiterates propriety of dual purpose stops

Kwesi Morris was pulled over by the police because they wanted to verify his documentation under the Highway Traffic Act (“HTA”).  The police smelled fresh marijuana and so arrested Morris and searched him and the car.   They found drugs and a loaded handgun in the car.  Morris argued that the drugs and gun should have been tossed out as evidence by the trial judge because, according to him, the police used the HTA as a pretext for an unauthorized stop and search.  The Ontario Court of Appeal disagreed: 2013 ONCA 223.
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New & Notable: No animals were harmed in the making of this offence

TT was a mother. TT decided to take on a raw vegan diet. She imposed this diet on her children. The consequences of that decision lead to serious health issues for her children; it also lead to criminal charges: 2012 ONSC 4346.
 

TT is the biological mother of 3 children, born between 2005 and 2009. In 2008 TT adopted a raw vegan diet for the family. This diet "mandated not consuming animal or animal by-products, including eggs, milk and cheese" [para 3]. As such TT "fed her children only raw vegetable, sprouted rice, fruit, nuts, coconut water, herbal tonics and supplements.

Their feeding was highly regimented and TT strictly controlled portion size. She did not seek medical advice on the appropriateness of the raw vegan diet for infants and small children.  Further, the children did not have a family doctor, nor did they have immunizations” [para 3].

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Current & Curious: Unfit, yet undisturbed...

Mohammed Butt pleaded guilty to one count of sexual interference contrary to section 151 of the Code. Almost a year after his guilty plea he was sentenced to 14 days in jail, the mandatory minimum prescribed by the Code, and three years probation. The Crown appealed this sentence: 2012 ONSC 4326.

 

Butt had lured the twelve-year-old male victim off the street into his apartment under the pretext that he was a fortune-teller. Once at the apartment Butt began to read the victim’s palm and made notations on a notepad. Butt told the boy that he was lucky and invited him to lie down on a blanket so that he could read his feet. Butt then began to rub the boy’s genitals over his clothes making the young boy fearful. Butt performed fellatio on the boy. When the boy stated that he was late for camp, Butt removed his own shirt, cupped his breast and told the boy that he was a woman.

When the victim ultimately made his way to camp he notified the staff of what had just happened.

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New & Notable: What a difference a day makes

Being convicted and sentenced for a criminal offence has many consequences.  Some, like loss of liberty, are easily identifiable.  Others can be more properly characterized as collateral.  For Hoang Pham it was a collateral consequence that led to his appearance before our nation’s highest court: 2013 SCC 15. 

 

Mr. Pham, a non-citizen, was a drug dealer with a criminal record.  After being convicted of two drug offences, a joint submission was placed before the court for a two-year penitentiary sentence.  The sentencing judge agreed and the offender was sentenced to two years.  Unbeknownst to any of the parties, under the Immigration and Refugee Protection Act [IRPA], a non-citizen sentenced in Canada to a term of imprisonment of at least two years loses the right to appeal a removal order against him or her.

Upon coming to this realization, Mr. Pham appealed his sentence, asking for a reduction of one day to allow him to appeal the deportation order.  The Alberta Court of Appeal upheld the sentence holding that a reduction in sentence would only seek to undermine the IRPA and that the offender “had abused the hospitality afforded to him by Canada”.  Mr. Pham appealed to the Supreme Court.

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New & Notable: Second guessing Crown discretion

Frederick Anderson was convicted of impaired driving. It wasn’t the first time. He had prior convictions. The Crown filed notice to seek an increased penalty. Anderson argued that this violated his rights under sections 7 and 15 of the Charter. The central basis of this application was that Anderson was aboriginal – and that the Crown gave no reasons for filing notice.
The trial judge found that the Crown’s decision to file notice violated sections 7 and 15 of the Charter and set aside the notice. With respect to section 7 the judge noted, inter alia, that “the Crown would be required to give adequate reasons for relying on section 727 notice” [para 7].
The Crown appealed: 2013 NLCA 2.
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