New & Notable: Clarifying and Safeguarding Crown Discretion

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Frederick Anderson was charged with over 80. He pleaded guilty. Prior to his plea he was served with a Notice of increased penalty. At sentencing the Crown intended to prove that Notice was served; the result being that Anderson would be subject to a minimum sentence of 120 days (Anderson had four prior convictions). 

Anderson sought to challenge the filing of notice alleging it breached section 7 of the Charter. In particular, he alleged that the Crown was obliged to consider his Aboriginal status. The Crown’s position was that the filing of Notice was a matter of prosecutorial discretion reviewable only through a finding of abuse of process. The matter ultimately made its way to the Supreme Court: 2014 SCC 41.

In considering the appeal the Court considered two issues. First, is the Crown required to consider the Aboriginal status of the offender in filing Notice of increased penalty. Second, whether filing the Notice is a matter of “core” prosecutorial discretion and on what basis can the exercise of Crown discretion be reviewed.

With respect to the first issue, the Court rejected the notion that the Crown was required to consider Aboriginal status for two reasons.

First, consideration of the Gladue principles is the responsibility of the judge not the Crown:

Importantly, both Gladue and Ipeelee speak to the sentencing obligations of judges to craft a proportionate sentence for Aboriginal offenders. They make no mention of prosecutorial discretion and do not support Mr. Anderson’s argument that prosecutors must consider Aboriginal status when making a decision that limits the sentencing options available to a judge. Mr. Anderson’s argument in effect equates the duty of the judge and the prosecutor, but there is no basis in law to support equating their distinct roles in the sentencing process. It is the judge’s responsibility to impose sentence; likewise, it is the judge’s responsibility, within the applicable legal parameters, to craft a proportionate sentence. If a mandatory minimum regime requires a judge to impose a disproportionate sentence, the regime should be challenged [para 25].

Second, the argument that Aboriginal status must be considered by the Crown relies on a principle of fundamental justice that the Court held is not valid: “The principle contended for by Mr. Anderson does not meet the second requirement that it enjoy consensus as a principle that is fundamental to the way in which the legal system ought to fairly operate” [para 30]. In concluding on this point the Court noted that accepting this principle would significantly impact on the role of the Crown and “hobble” them in their decision making processes:

We must begin by acknowledging that the principle advanced by Mr. Anderson would enormously expand the scope of judicial review of discretionary decisions made by prosecutors. In doing so, it puts at risk the adversarial nature of our criminal justice system by hobbling Crown prosecutors in the performance of their work and by inviting judicial oversight of the numerous decisions that Crown prosecutors make on a daily basis [para 31].

With respect to the second issue, the Court addressed two points.

First, the Court considered the scope of Crown discretion. In doing so it held that there has been a lack of clarity in the law regarding the scope of Crown discretion. The development of “core” discretion is not helpful and should be eliminated. In its place, the Court held that all discretionary decisions are to be treated equally and, importantly, the list of such decisions are not closed or fixed:

In an effort to clarify, I think we should start by recognizing that the term “prosecutorial discretion” is an expansive term that covers all “decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it” (Krieger, at para. 47). As this Court has repeatedly noted, “[p]rosecutorial discretion refers to the discretion exercised by the Attorney-General in matters within his authority in relation to the prosecution of criminal offences” (Krieger, at para. 44, citing Power, at p. 622, quoting D. Vanek, “Prosecutorial Discretion” (1988), 30 Crim. L.Q. 219, at p. 219 (emphasis added)). While it is likely impossible to create an exhaustive list of the decisions that fall within the nature and extent of a prosecution, further examples to those in Krieger include: the decision to repudiate a plea agreement (as in R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566); the decision to pursue a dangerous offender application; the decision to prefer a direct indictment; the decision to charge multiple offences; the decision to negotiate a plea; the decision to proceed summarily or by indictment; and the decision to initiate an appeal. All pertain to the nature and extent of the prosecution. As can be seen, many stem from the provisions of the Code itself, including the decision in this case to tender the Notice.

In sum, prosecutorial discretion applies to a wide range of prosecutorial decision making [paras 44-45].

Second, the Court considered the issue of when and how the exercise of Crown discretion may be reviewed. In doing so, it noted that “[m]anifestly, prosecutorial discretion is entitled to considerable deference” [para 48]. The review of prosecutorial discretion, the Court held, is reviewable only for abuse of process – which “refers to Crown conduct that is egregious and seriously compromises trial fairness and/or the integrity of the justice system” [para 50]. In stressing this point the Court noted that to the “extent the Gill test suggests that conduct falling short of abuse of process may form a basis for reviewing prosecutorial discretion, respectfully, it should not be followed” [para 51].

Having set the standard for review, the Court also noted that before the Crown is required to reply to such allegations, an evidentiary basis must be established [para 55].

In conclusion, the Court held:

Parliament has expressly conferred on the Crown the discretion to tender the Notice at the sentencing hearing through the governing provisions of the Code. This discretion is consistent with our constitutional traditions. As the Crown points out, tendering the Notice is not simply a decision as to what submissions will be made at a sentencing hearing (A.F., at para. 119). Tendering the Notice fundamentally alters the extent of prosecution — specifically, the extent of the jeopardy facing the accused. In this respect, the Crown’s decision to tender the Notice is analogous to the decision to proceed with charges that attract a mandatory minimum sentence when other related offences have no mandatory minimum sentence; the decision to proceed by indictment rather than summary conviction when different mandatory minimum sentences are involved; and the decision to proceed by indictment rather than by summary conviction when that decision precludes certain sentencing options.

For these reasons, I conclude that tendering the Notice is a matter of prosecutorial discretion. As a result, it is reviewable only for abuse of process.  In the complete absence of any evidence to support it, Mr. Anderson’s abuse of process argument must fail [paras 62-63].

Anderson is a very helpful decision beyond the specific issues it addresses for a number of reasons.

First, it has clarified the scope of Crown discretion. It has done away with the “core” dichotomy and it has recognized there is not a closed list of discretionary powers or decisions.

Second, it has held that review of such discretion is only permitted for abuse of process.

Third, it has held that an evidentiary basis is required before the Crown needs to respond to challenges to the exercise of its discretion.

Fourth, the Court recognizes that to the extent a regime results in a disproportionate sentence it can be challenged – short of which it must be applied.

DGM

New & Notable: High End & Fit

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Jeffrey Narvie went to an acquaintance’s home to sell him a small amount of marijuana. The deal didn’t go as planned for either the buyer, who was attacked and robbed, or the seller, who was subsequently arrested. After a trial Narvie was found to have held a knife to the victim’s throat, robbing him of his cell phone and $230.

The Crown argued that Narvie, an aboriginal person from the Mi’Kmaq band in New Brunswick should be sentenced to 3-5years in custody. Narvie submitted that 12 months would suffice. The trial judge imposed a sentence of 4 years, which “included three six-month concurrent sentences for the counts of mischief, breach of probation, and possession of stolen property, as well as nine months for trafficking in marijuana,” [@para 9]. Narvie appealed on the basis that the sentence was demonstrably unfit: 2014 ABCA 145.

In fashioning the sentence the trial judge noted:

• The lengthy related criminal record
• The unfavourable pre-sentence report
• Longstanding substance abuse issues
• A lack of remorse
• The principles in Gladue, 1999 CanLII 679 (SCC)

On appeal Narvie argued that the sentencing judge overlooked a number of mitigating factors including:

• A 10year gap in Narvie’s criminal record
• The prior attempts to overcome addiction issues
• Employment in the year prior to the offences
• The unsophisticated nature of the crimes
• The absence of injuries to the victim [@para 10]

The Crown conceded that the 9 month sentence for trafficking was overly harsh given the small amount involved and that the offender’s related drug record was minimal. The Court imposed a sentence of 60 days concurrent on the trafficking offence.

In dismissing the remainder of the sentence appeal the Court held that:

While the robbery sentence may have been at the high end, we cannot say it was demonstrably unfit. We are satisfied it fell into an appropriate range, given all the facts present here. The test is not whether a lower or higher sentence might have been imposed. It is whether, in this case, the sentence for robbery was demonstrably unfit. We are not convinced that it was. [@para 13]

Furthermore, although the sentencing “judge may not have mentioned every single factor, (…) all the matters he is said to have overlooked were, in fact, put before him. He carefully considered the principles of sentencing and made no errors of principle” [@para 12].

LT

New & Notable: Commendable Efforts but not Worthy of Lesser Sentence

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Shortly after midnight, Kristopher Clarke, 19 years old, walked into a convenience store wearing a skeleton mask and pulled out a starter’s pistol, which he pointed at the head of the victim. He demanded cash and cigarettes.  He threatened to shoot if his demands were not met. Clarke plead guilty and was sentenced by Moore J who accepted a joint submission of two years less a day.

The joint submission was premised and accepted on the basis of the following factors. First, Clarke was a youthful first offender, who pleaded guilty.

Second, Moore J described Clarke as having “an incredible amount of potential” given the family support and prospect for rehabilitation [@para 5].

Third, Clarke was released on bail pending disposition and had abided by all of the release conditions.

Fourth, at the time of the robbery Clarke was suffering from depression but had stopped taking his anti-depressants because he could no longer afford them. A detailed psychiatric report was filed.

On appeal, however, Clarke argued that in light of fresh evidence, which revealed that he had taken significant steps towards rehabilitation following disposition, the sentence should be reduced. The Ontario Court of appeal disagreed: 2014 ONCA 296.

Before declining to admit the fresh evidence, the Court of Appeal first set out the categories of proposed fresh evidence, which included:

• Letters of support from people who have known Clarke for many years
• Letters of support from Clarke’s employers from various subway restaurants where Clarke worked on a part-time basis.
• Letters relating to Clarke’s education post sentencing, which included the completion of high school credits and enrolment in a college program.

Although the Court commended Clarke for his efforts in both education and employment ultimately they determined that the fresh evidence did not:

significantly alter the picture presented to the sentencing judge. Then, as now, the appellant is a youthful first offender who committed very serious offences and who shows good potential for rehabilitation. Then, as now, he has the full support of his friends and family.  Then, as now, he has the full support of his friends and family. While the appellant appears to have made progress with his education since he was released on bail pending appeal we cannot say that the fresh evidence demonstrates a significant change of circumstances sufficient to permit us to reduce the sentence imposed by the sentencing judge [para 19].

Moreover, in concluding that the sentence was fit the Court highlighted that:

given the gravity of the offence, the governing law, and the fact that the sentence was at the low end of the range and imposed following a joint submission, we consider that in law we must uphold the sentence [para 20].

This approach is consistent with the comments of the Saskatchewan Court of Appeal in R v Stonechild, 1995 CanLII 3925 (CA), where the Court stressed that:

(…) crimes violence will be visited with a significant term of imprisonment. Robbery with violence is the type of crime from which the public is entitled to be protected and the sentence imposed must leave no doubt that such conduct cannot be tolerated.

Service stations and other places of business that remain open during the night (often with only one attendant) are particularly vulnerable. Taxi drivers are often in a similar position. Robbery is particularly serious because of its inherent danger to human life. Any escalation of violence toward a victim as well as resistance to the offender can easily result in death or serious bodily harm [paras 7-8].

LT

New & Notable: Maxwell - not so smart after all

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Norman Maxwell thought he had a clever scheme. His scheme involved defrauding the Bank of Montreal to the tune of $375,000; he did so through several transactions occurring over the period of about one month. 

Maxwell was charged and ultimately found guilty after trial. The trial judge imposed a sentence of 4 years jail and made two ancillary orders: (i) restitution in the amount of $293,205; and (ii) a fine in lieu of forfeiture in the same amount to be paid within 30 days prior to the appellant’s release from custody, and in default of payment, a further term of imprisonment of four years to be served consecutively to the principal sentence. Maxwell was not happy - he had sought a conditional jail sentence or in the alternative, a sentence in the range of 2 years. He appealed. The Court of Appeal dismissed his appeal: 2014 ONCA 316.

On appeal two issues were raised.

First, Maxwell took issue with the length of sentence. The court rejected this ground of appeal. 

A custodial sentence of four years in our view falls within the range of sentence appropriate for the offence and the offender who committed it. The scheme involved several individual transactions that took place over a period of about a month. The amount of money involved, $375,000, was significant. That the bank manager breached bank procedure in the hope that the appellant’s promise of significant future business does not diminish the appellant’s moral blameworthiness. Nor are we persuaded that the trial judge’s consideration of the significant personal consequences for the manager resulted in the imposition of an unfit custodial sentence.

The reasons of the trial judge reflect consideration and application of the controlling sentencing principles including denunciation, deterrence and, secondarily, rehabilitation. The appellant is a mature adult, with related but dated convictions. At the time of sentencing he continued to solicit funds from others for a highly secretive project that the trial judge was satisfied did not exist [paras 5-6].

Second, Maxwell took issue with the fine in lieu of forfeiture. The court held that the "imposition of a fine in lieu of forfeiture...reflects no error in principle" [para 8]. However, the court did vary the order by allowing 2 years (rather than 30 days) to pay and reduced the imprisonment in default from 4 years consecutive to 3 years.

DGM

New & Notable: Hoping for Rehabilitation does not Protect the Public

Mr. Ogbamichael touches women in a sexual manner while riding public transit. He has done so for many years. Most recently he was convicted of sexually assaulting a young woman on the Toronto public transit system: 2014 ONSC 1693. At the time of the offences Ogbamichael was bound by a probation order which barred him from being on Toronto Transit Commission [TTC] property.

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Ogbamichael’s victim was asleep on the bus when she woke to the offender rubbing her leg and crotch. He tried to put his hand down her pants and she fled the bus.

The victim described feeling disgust and shame at the attack and an ongoing fear of using the public transit system.

Trotter J held that he had no doubt that the offender has made many other women feel the same way over the years as this was his seventh conviction for a similar sexual offence.

An earlier pre-sentence report [PSR] one prepared prior to this most recent crime, described the offender as being at a low risk to re-offend, despite suffering from the paraphilia “toucherism”.  The PSR’s prediction turned out to be wrong as this sexual assault was perpetrated shortly after the offender’s release from custody. Ogbamichael offered no expression of remorse nor any real insight into the impact his crimes have had on his victims.

Before sentencing Trotter J noted that the offender’s undeterred conduct “leaves a sentencing judge with little choice but to increase the severity of responses to his re-offending. At this stage, a disposition focused on rehabilitation would delicately rest on little more than hope, leaving young women travelling the TTC to bear the risk of this approach” [@para 16].

Ogbamichael was sentenced to an 18-month jail term for the sexual assault and 12-months consecutive for the breach of probation, followed by a three year probationary period. In so doing Trotter J recognized that:

this custodial sentence, for a single over-the-clothing subway groping might strike some as severe. However, given Mr. Ogbamichael's persistent pattern of offending, which seems to be impervious to jail sentences and court orders, a significant jail sentence is required in an effort to protect the public and to put an end to this behaviour [para 22].

 LT

New & Notable: Anesthesiologist Abusing Sedated Patients

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Until the Ontario Superior Court’s decision in R v Doodnaught, 2014 ONSC 1196, there have been no reported cases in Canada on sentencing of an anesthesiologist who sexually assaulted his sedated patients during various medical proceedings [para 26].

Doodnaught was convicted of sexually assaulting 21 female patients. The victims were between the ages of 25 to 75. The sexual acts perpetrated on them included kissing, fondling, and forced fellatio. Although three formal complainants were made during the time period in the indictment, Doodnaught had faced no repercussions; the effects of the anesthesia were blamed and Doodnaught denied the allegations. McCombs J found that the dismissal of these complaints emboldened Doodnaught and escalated the frequency of his crimes. In fact, in the ten days prior to his arrest, no less than four women were sexually assaulted; three of them by forced fellatio. 

McCombs J found held that “the power imbalance between” Doonaught “and his victims was absolute” [para 8]. Sedated but aware of what was happening to them, the impact on the victims has been devastating.   The victim impact statements described profound psychological effect, sexual dysfunction and a distrust of the medical profession [para 13].  

At the time of sentencing Doodnaught was 65 years old with no prior criminal record.  McCombs J held that the “court has a duty to send a clear message that reflects society’s abhorrence for the conduct, and serves as a deterrent to others in a position of trust who might be inclined to prey upon vulnerable, sedated patients” [para 29].

Doodnaught was sentenced to 10years.

In March of 2014 Doodnaught sought release pending the hearing of his appeal. The notice of appeal alleges some 100 errors by the trial judge - all of which challenge the correctness of the findings of fact [2014 ONCA 172 @paras 7-8].

The Crown argued that Doodnaught’s ongoing detention was necessary and in the public interest. LaForme JA agreed and noted the following:

(…) on the record before me, his grounds of appeal are weak and not likely to succeed, although some may be arguable.  In cases like this, the need for immediate enforcement of the judgment outweighs the need to review the decision. Release, therefore, would not be in the public interest [ONCA para 24].

Doodnaught submitted the same 49 letters of support that were filed on sentencing. The point was to illustrate that some small segment of the public believed in his innocence.  LaForme JA held that:

These opinions should be accorded little weight given that a contrary opinion is no doubt held by the 21 victims and their families and associates.  The letters thus do not assist very much in gauging the public interest in this case [ONCA para 19].

 LT

New & Notable: A Continued Battle with an Intractable Offence

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Bonita Purtill had a prior conviction for impaired driving. Sadly that conviction did not fully deter her. On Thanksgiving day 2008, while impaired, she slammed her truck into another vehicle, killing a 5 month-old child inside and breaking the back of the mother. Purtill later refused to provide a sample of her breath.

Purtill was ultimately convicted of criminal negligence causing death, impaired causing death and refusal to provide a breath sample. The trial judge imposed a sentence of 6 years for the criminal negligence offence and impaired driving and 1 year consecutive for the refusal. Purtill appealed: 2013 ONCA 692.

In recent years the Ontario Court of Appeal has made clear that this type of offence has proven intractable and that increased sentences are not only warranted but necessary to send a strong message of deterrence and denunciation: R v Kummer, 2011 ONCA 39; R v Junkert, 2010 ONCA 549 - something I discussed in a recent blog: Fighting an Intractable Problem?

In response to the appeal in Purtill, the Court of Appeal reiterated this message and added a helpful point regarding the consecutive sentence for the refusal charge:

There is no fixed upper limit for criminal negligence causing death or impaired driving causing death. The facts of the case must govern...In this appeal, a five-month-old baby was killed and his mother's back was broken as a result of the appellant's offences. While the appellant showed remorse, she had a prior, albeit dated, criminal record for impaired driving. Furthermore, there was no error in the sentencing judge's imposition of a consecutive sentence for the offence of refusal to provide a breath sample. Counsel acknowledges that a consecutive sentence for this offence was appropriate. The seven year sentence was not unduly long or harsh in the circumstances and we are satisfied that the sentence does not offend the totality principle [para 4].

Given that an offence of refusal knowing death was caused (or bodily harm and death ensued) is now available, the guidance about the consecutive nature of that offence is notable. The battle with this intractable offence will undoubtedly continue; hopefully all courts will take note.

DGM

New & Notable: If at first you don't succeed...maybe you should stop

Daniel Woods was trafficking in cocaine. He got caught. He was found to have $1,130 and some drugs including 95.5 grams of cocaine. He was charged. He was released pending trial and resolution of that charge. While on release he again trafficked in cocaine. He was caught, again. This time he had 288.5 grams of cocaine and 79 ecstasy pills, along with $540. He was charged, again. He pleaded guilty to both charges.

Woods was a young man, he had no prior record and he had a gambling addiction. The sentencing judge imposed a sentence of 18 months jail on the first charge and 30 months jail on the second. Woods appealed: 2013 ONCA 766.

The Court of Appeal upheld the sentence. In doing so it offered the following:

However, the sentencing judge considered it an aggravating factor that the appellant committed the second offence while released on an undertaking and awaiting disposition of the first offence.

We agree. Where an accused re-offends while on release, the sentencing principles of general deterrence and denunciation must be given more significance to discourage and denounce such conduct. Further, we see no basis for the appellant’s submission that the sentences on the two offences should have been concurrent. We are not persuaded that the sentencing judge made any error or that the sentence is unfit [emphasis added]; [parars 3-4].

DGM