R. v. Gabriel

R. v. Gabriel Court Supreme Court Date 2018-10-16 Citation 2018 NSSC 252 Docket Hfx. No. 475620 Judge/Registrar/Adjudicator Rosinski, Peter P. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: R. v. Gabriel, 2018 NSSC 252 Date: 2018-10-16 Docket: Hfx. No. 475620 Registry: Halifax Between: Her Majesty the Queen v. Chantel Dawn Gabriel Corrected Decision: The text of the original decision has been corrected according to the attached erratum dated October 19, 2018. Judge: The Honourable Justice Peter P. Rosinski Heard: October 10, 2018, in Halifax, Nova Scotia Final Written Submissions: October 9, 2018 Counsel: Erica Koresawa for the Appellant Colin Coady, for the Respondent By the Court: Introduction [1] The Provincial Court Judge departed from a joint recommendation (30 days custody) presented to her at the sentencing of Ms. Gabriel. The Crown appeals the sentence she imposed (one day in jail served by Ms. Gabriel’s appearance in court, and a $20 fine) on the following grounds: 1. The sentencing judge erred in principle in undercutting a jointly recommended sentence; 2. The sentencing judge erred in failing to provide sufficient reasons to allow for meaningful appellate review; and 3. Such other grounds as may appear from a review of the record under appeal. [2] The Crown and defence agree that this Court should allow the appeal, vary the sentence, and impose the jointly recommended sentence of 30 days custody.[1] However, both the Crown and defence suggest that the sentence should, in the interests of justice, be permanently stayed. [3] I conclude that the sentencing judge erred in principle in departing from the joint recommendation, which error allows this court to sentence Ms. Gabriel to a fit sentence.[2] [4] In essence, that aspect of the joint recommendation is before me now. [5] However, seven months have passed since the sentencing date. I must therefore also ask myself whether there are “exceptional” circumstances that render it inappropriate to now incarcerate Ms. Gabriel?[3] [6] In Scott Justice Saunders stated, albeit in dissent: 114 When someone has served most or all of a sentence which is later found to be unfit on appeal, there is a natural reluctance to re-incarcerate. Former Chief Justice MacKeigan put it well in R. v. Barktow (1978), 24 N.S.R. (2d) 518 where at p. 524 he said: We must always be disinclined to send a man back to jail to serve the remainder of a longer term substituted on appeal unless that disinclination is overridden by the need to deter others by a much greater sentence. (Citations omitted) 115 Matthews, J.A. touched upon the basis for the disinclination in R. v. Fitzgerald, [1985] N.S.J. No. 434 (Q.L.) (C.A.) where at para. 14 he observed: [14] This Court has expressed its reluctance to send a person back to prison where the sentence of imprisonment has been fully served at the time of the hearing of the appeal. We must question whether the interests of the public or the accused would be served by reincarceration. 116 In the recent case of R. v. Sinclair, 2012 MBCA 24, the Manitoba Court of Appeal cited a leading sentencing text for the principles of (re)incarceration, The Sentencing Code of Canada: Principles and Objectives, the Honourable Gilles Renaud, (Markham: LexisNexis Canada Inc., 2009) where the author states (at 5.96-5.97, 5.100-5.101, 5.114): As a broad, general statement of law, the principle of sentencing which directs courts to be chary of returning an offender to a custodial facility after a lengthy period of time within the community, lest the rehabilitative efforts displayed and the progress achieved towards social re-integration be lost, is exercised only at the appellant level. In practice, an offender will have been tried and convicted after a period of time and then ... In the interim, the offender may ... have made great strides in pursuing an education or in establishing a family or success in employment endeavours. In such circumstances, it is often thought by appeal court judges that it is counter-productive to sacrifice the gains that have been achieved in terms of rehabilitation in order to foster the principles of denunciation and general deterrence by means of incarceration. Hence, the principle is chiefly understood to be available to an appellate court to temper the rigours of sentencing doctrine in meritorious instances in which evident rehabilitative efforts and achievement are at risk of being undermined significantly if imprisonment is visited upon the offender. 117 Similar sentiments were expressed by the New Brunswick Court of Appeal in R. v. Veysey, 2006 NBCA 55 where at para. 32 the court outlined four factors it considered relevant when determining whether, due to exceptional or "special" circumstances, a court should refrain from re-incarcerating an offender even though the sentence was demonstrably unfit: [32] We find nothing inherently harsh or oppressive in jailing a person who has served a sentence that was demonstrably unfit. The fact that the original sentence has been fully served does not, by itself, warrant special consideration. At the same time, we are left with the Supreme Court's caution that to require an accused to serve a fit sentence after having completed an unfit one may lead to an injustice. Thus, one must be prepared to recognize that in certain instances reincarceration could work an injustice. The difficult task is to identify the circumstances in which reincarceration would work such a result. In short: What constitutes special circumstances? Having regard to the jurisprudence discussed above, we have isolated four factors that one could reasonably consider relevant to the issue of whether a stay should be granted. This is not to suggest that the list is exhaustive. Other pertinent factors may exist. However, for purposes of deciding this appeal, we are content to examine the following: (1) the seriousness of the offences for which the offender was convicted; (2) the elapsed time since the offender gained his or her freedom and the date the appellate court hears and decides the sentence appeal; (3) whether any delay is attributable to one of the parties; and (4) the impact of reincarceration on the rehabilitation of the offender. 118 Finally, in R. v. G.C.F., [2004] O.J. No. 3177 (Q.L.) (C.A.), Justice Borins of the Ontario Court of Appeal provided a helpful overview of the potential approaches a court of appeal might follow where it concludes that the original sentence was unfit but that it would be inappropriate to incarcerate the offender. At para. 35 he writes: [35] The above cases illustrate that different approaches have been taken where an appellate court is of the opinion that although the trial judge erred in imposing a demonstrably unfit sentence, it would be inappropriate to incarcerate the defendant. One approach is to dismiss the appeal notwithstanding that the trial judge committed reversible error. Another, is to allow the appeal, impose the custodial sentence that should have been imposed and stay the enforcement of the sentence. In circumstances such as those that exist in this case, where the offender has served the whole of a conditional sentence, the second approach may be preferable. First, it corrects the reversible error arising from the imposition of a demonstrably unfit sentence by imposing the custodial sentence that should have been imposed. Second, to dismiss the appeal notwithstanding the trial judge's reversible error, the defendant's record would not reflect the penalty that in the opinion of the appellate court the trial judge should have imposed. As I have indicated, whether the court will stay the enforcement of the sentence will depend on the presence of special circumstances. 119 In disposing of the appeal in that case, Borins, J.A. at para.36 offered a third option, which was to allow the appeal but vary the sentence: [36] In the result, I would grant leave to appeal sentence and allow the appeal. I would vary the conditional sentence of twelve months to be a sentence of two years less a day to be served in a reformatory, credit the respondent with the 12 month conditional sentence that he served, with the result that his effective sentence of 12 months will commence when the respondent surrenders or is arrested. 120 This Court in R. v. Butler, 2008 NSCA 102 and in R. v. Best, supra, followed the first approach and dismissed the Crown's sentence appeal notwithstanding the panel's conclusion that the trial judge had erred in determining the initial sentence and that appellate intervention was required. In both cases it was found not to be in the interests of justice to re-incarcerate the offender, despite the trial judge's errors in imposing sentence in first instance. 121 On the facts of this case, I prefer the other alternatives suggested by Borins, J.A. in G.C.F., supra. The first would be to allow the appeal, impose the custodial sentence that ought to have been imposed in the court below, but stay the enforcement of the sentence. Had this been a case where Mr. Scott had served the whole of his conditional sentence, this approach is one I may have adopted. Here, however, his sentence began almost a year ago, and he has completed some, but certainly not all of its length. To me, this is an instance where the third approach is to be preferred, such that I would allow the appeal but vary the sentence. I favour that approach in this case as it enables the Court to maintain a sentencing benchmark while avoiding injustice to this particular offender, and respecting the public interest. 122 It appears to me that in crafting a proper sentence here, there are three particular factors which are especially relevant to the task: the seriousness of the offence for which Mr. Scott was convicted; the fact that he has completed a substantial portion but not all of his sentence; and the impact of re-incarnation on the offender's rehabilitation. [7] There is no evidence before me that Ms. Gabriel has violated the Conditional Sentence Order and probation order that were imposed on the same day as part of that joint recommendation proposed by counsel. Both Crown and defence counsel suggest that it would work an injustice to now incarcerate Ms. Gabriel. [8] A consideration of the factors relevant to the “interests of justice” lead me to conclude that although the sentencing judge erred in rejecting the 30 days’ custody, in my view it is not appropriate to incarcerate Ms. Gabriel at this time. [9] Consequently, I allow the appeal, but permanently stay the 30 day sentence, including the associated victim fine surcharge. The statutory framework [10] Appeals are creatures of legislation. They all must find their roots in soil deliberately deposited by legislators. [11] Rule 63.02 of Nova Scotia Civil Procedure Rules (Summary Conviction Appeal), reads: This Rule applies to a summary conviction appeal under part 27 of the Criminal Code, which includes an appeal of a decision in both federal summary conviction proceedings and, by operation of the Summary Proceedings Act (Nova Scotia) a provincial summary conviction proceeding. [12] The appeal is to this court sitting as a Summary Conviction Appeal Court (SCAC). This appeal arises through the operation of. ss. 813 and 822 of the Criminal Code. [13] Sections 813 reads: 813(1) Except where otherwise provided by law, (b) the informant, the Attorney General or his agent in proceedings under this Part may appeal to the appeal court (ii) from a sentence passed upon a defendant,,..." [14] The "appeal court" is defined in section 812, in the case of Nova Scotia, as "the Supreme Court". [15] Section 822 reads: 822(1) Where an appeal is taken under section 813 in respect of any conviction, acquittal, sentence, verdict or order, sections 683 to 689, with the exception of subsections 683(3) and 686(5) apply, with such modifications as the circumstances require. [16] Part 21 of the Criminal Code (Appeals - Indictable Offences) includes ss. 673 - 696. [17] Section 683 contains a list of general procedural powers available to courts of appeal. Relevant for present purposes is Section 683(1)(d), which is the statutory basis for a motion to adduce fresh evidence. It reads: 683(1) For the purposes of an appeal under this part, the Court of Appeal may, where it considers it in the interests of justice,... (d)receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness;.. [18] Section 687 reads: (1) Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive, a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or b) dismiss the appeal. (2) A judgment of the court of appeal that varies the sentence of an accused who was convicted has the same force and effect as if it were a sentence passed by the trial court. The Standard of Review [19] Key to any appeal is appreciating the necessary, but sometimes complicated question: what is the relevant standard of review that an appeal court ought to use in assessing how much deference it owes to the trial court? [20] In R. v. Skinner, 2016 NSCA 54, Justice Saunders has very helpfully detailed the law surrounding this question.[4] Standard of Review 15 While typically included as an important section in any brief, factum or decision, standard of review is a concept which is often poorly understood. For the benefit of readers who might not be legally trained, a brief introduction may be helpful. 16 I begin with a simple reminder of our role and responsibility as a Court of Appeal. We review for error. An appeal is not a chance for a second trial. In order to overturn or vary a decision following a trial, we must be satisfied that the error is serious and affected the result. We do not intervene when the mistake is found to be trivial. 17 Long-settled rules set the boundaries for our evaluation of errors alleged to have occurred in the court below. That assessment requires the application of an appropriate standard of review, which is fixed by the type of error said to have occurred. The phrase "standard of review" is simply a label used to explain the margin or tolerance for deviation allowed during appellate review, depending upon the category of issue or question challenged on appeal. It is a convenient way to describe the view-finder, the lens, through which we, as appellate judges examine the error alleged to have occurred in the court below. 18 For the purposes of this introduction and its application to this case, I will restrict my observations to the occasions that most often arise in the context of criminal and civil appeals. Obviously, my comments are not intended to cover the host of other situations where different standards and terminology will apply, such as we see in administrative law; judicial review; damages; costs; or matters said to involve mixed questions of law and fact. 19 Generally then, in criminal and civil cases, the initial inquiry focuses on whether the alleged error concerns a "question of law" or a "question of fact". As we shall see, the difference matters. The characterization of the error drives the standard of review applied to it. See, for example, R. v. Shropshire, [1995] 4 S.C.R. 227; R. v. M.(C.A.), [1996] 1 S.C.R. 500; Housen v. Nikolaisen, [2002] 2 S.C.R. 235; and H.L. v. Canada (Attorney General), 2005 SCC 25. 20 When the error is said to involve a question of law, the judge must always be right. That is why the standard of review on questions of law is said to be one of correctness. In interpreting and properly applying the law the judge must be correct. 21 By contrast, the standard of review is different whenever the issue challenged on appeal is no longer legally centric. When errors are said to have occurred in such things as a trial judge deciding what facts to accept and what reasonable inferences to draw from those facts; or apportioning weight to the evidence the judge chooses to accept; or resolving matters of credibility; those errors are tested on appeal using a much different yardstick. There, considerable deference is paid to the trial judge's decisions and a broader latitude for tolerance is invoked when such rulings are challenged in this Court. In the context of criminal appeals, questions of fact will not be disturbed unless they are found to be unreasonable or unsupported by the evidence. Slightly different language is used in the context of civil appeals where factual findings will not be interfered with unless they are said to be the product of palpable and overriding error. 22 To understand these concepts, a simple analogy is often helpful. I will use the example of a target to illustrate the difference. Whether one has ever engaged in target practice or taken part in archery, everyone knows what a bull's eye target looks like, with its series of concentric circles, reducing to a small circle in the center. As we have seen, the standard of review applied to questions of law is one of correctness. The judge's rulings must hit the bull's eye. There is no room or margin for error. Striking the outside rings on the target is never good enough. A bull's eye, on a question of law, is always required. No deference is accorded. Errors of law will be set aside and corrected. 23 By contrast, a judge's decisions on questions of fact are not evaluated on a standard of correctness. A high degree of deference is accorded. Even though opinions may differ with regards to particular factual rulings, they will not likely be disturbed because the margin or tolerance for deviation is wide enough to accommodate other outcomes which are reasonable and find support in the evidence. Recalling my analogy, striking the outer rings on the target will suffice and appellate intervention will not be warranted. 24 This then explains why it is important to understand how the appropriate standard of review will vary depending upon how one characterizes the issue or ground of appeal, and why and in what circumstances limits have been placed on our power to intervene. 25 The reasons for adopting such an approach are of course grounded in both common sense and policy. Obviously the trial (or sentencing) judge has seen and heard the evidence from a front row seat. Long-settled jurisprudence, over the centuries, has carefully emphasized the advantage trial judges have over appellate judges when deciding the facts. They are in the best position to watch the witness, observe demeanor, decide matters of credibility, and ultimately sort out and state a preference for contradictory evidence. 26 Further, in terms of public policy, there must be certainty, consistency and finality in the law. Trials are the recognized forum where facts are decided by an independent and impartial decision-maker. If appeals gave the parties carte blanche to try the same matter all over again, there would never be an end to disputes. The attendant delay, added costs, wasted resources, inconsistent verdicts, and inability to correct for error or provide meaningful relief to the parties would thwart any chance of obtaining timely and affordable justice. 27 These then are some of the reasons why the roles and responsibilities of trial and appellate courts are so different. It is hoped that this brief commentary will serve to better explain how those principles will influence and constrain our consideration of cases on appeal. This takes me to the standards that apply to the issues raised in this case. 28 The law relating to appeals from sentence is well-settled. The "test" to be applied is not how many years in prison I or any of my colleagues would have imposed had Mr. Skinner first appeared in this Court for sentencing. The law is such that our role on appeals from sentence is narrowly defined. The limitations on our authority were recently described by Justice Oland in R. v. B.M.S., 2016 NSCA 35: [11] Trial judges have a broad discretion to impose the sentence they consider appropriate within the limits established by law: R. v. Shropshire, [1995] 4 S.C.R. 227 at para 46, R. v. Nasogaluak, 2010 SCC 6 at para 43 - 46. Absent an error in principle, failure to consider a relevant factor, overemphasis of the appropriate facts, or a sentence that is demonstrably unfit, a Court of Appeal should not intervene: R. v. Proulx, 2000 SCC 5 at para 123. Any error that may be identified by an appellate Court will only justify intervention if that error had an impact on the sentence ordered: R. v. Lacasse, 2015 SCC 64 at para. 41, 43 - 44. These are the principles I will apply to the issues raised by the Crown on appeal. Why I say the sentencing judge erred in principle The Background to the Sentencing [21] Ms. Gabriel was approximately 44 years of age when she appeared before the trial court. She had 32 prior criminal convictions, and included therein were 13 prior Section 145 Criminal Code offences. The remainder consisted of theft of property and possession of stolen property. [22] On November 22, 2017, with the assistance of legal counsel, she pled guilty to two counts of theft from Lawton’s Drug Stores Ltd. in Dartmouth, on two separate occasions arising on July 18, 2017, contrary to Section 334(b)(ii) Criminal Code. [23] On each occasion thereafter she had legal counsel representing her in court. [24] On that information she was put over to January 12, 2018 for sentence, but she did not appear. [25] On January 17, 2018, she was in custody after a warrant for her arrest was executed. She was released on a promise to appear, for February 6, 2018. [26] On February 6, 2018, as a result of being late, the matter was adjourned to March 5, 2018. [27] On March 5, 2018, she did not appear. A bench warrant was held and her sentencing was put over to March 26, 2018 at 9:30 a.m. Her counsel, Mr. Drew Rogers informed the judge that the matter of sentence had been resolved by an “early resolution proposal” and that there would be a joint recommendation in place.[5] Mr. Rogers indicated that she had been in contact with his office, he had no explanation for her non-appearance, and requested that the warrant for the arrest of Ms. Gabriel be held until March 26, 2018. [28] He told the court he would send a letter to her last known address advising her of the appearance required on March 26, 2018.[6] [29] On March 26, 2018 Mr. Rogers was present, but Ms. Gabriel was not. A warrant for the arrest of Ms. Gabriel was released. Mr. Rogers confirmed that he had sent a letter on March 6, 2018 to Ms. Gabriel’s last known address and he had received no contact from her and the letter had not been returned to his Nova Scotia Legal Aid office.[7] [30] Ms. Gabriel was arrested on that unendorsed s. 524 Criminal Code warrant on April 1, 2018. The Crown opposed her release before the Justice of the Peace, and the matter was set over for a show cause hearing to April 3, 2018 in Dartmouth Provincial Court. [31] A new information was laid charging her with “on or about March 26, 2018 at or near Dartmouth Nova Scotia, did having appeared before the Dartmouth Provincial Court Judge, did fail without lawful excuse to attend court on March 26, 2018, as thereafter required by the court, contrary to Section 145(2)(b) of the Criminal Code.” [32] With her on March 26, 2018, was Nova Scotia Legal Aid cells counsel. He had not been counsel for her on these matters previously. The Crown was represented by a very experienced prosecutor, who also had not previously dealt with the case. [33] Crown counsel confirmed that Ms. Gabriel had stolen approximately $193.18 in merchandise on the two occasions, of which $45.24 of merchandise was recovered, leaving a balance unrecovered of $147.94. [34] The Crown and defence counsel confirmed they were presenting a joint recommendation in relation to the offences as follows: 1. July 18, 2017, two counts of theft (summary conviction): a 60 days’ conditional sentence followed by 18 months’ probation to the 30 days custody to run consecutively. The Crown sought restitution in the amount of $147.94. 2. March 26, 2018, one count of failure to appear - s. 145(2)(b) (summary conviction): 30 days’ custody, to run consecutively. [35] Importantly, a joint recommendation regarding the July 18, 2017 offences was in place as early as March 5, 2018. As defence counsel put it: “for the shoplifting offences, those were the subject of negotiations, and it had been understood that the 60 day house arrest would be imposed and she was prepared for that [as well].” [36] In relation to the s. 145 charge, he stated that “she has no good reason for missing her sentencing date in court and is pleading guilty at the first opportunity to take responsibility for that.” Both trial counsel confirmed that this charge was also the subject of a separate joint recommendation. [37] The sentencing judge requested that the matter be adjourned to later in the day to give her a chance to consider the joint recommendation regarding the s. 145 offence. She continued to sit in court until 3:37 p.m. The matter reconvened at 4:03 p.m. [38] Upon her return the Judge stated: The concern I have and had with Ms. Gabriel’s matter, I understand there being a history of [section 145 offences], it struck me as a 30 day custody sentence being unduly harsh, I guess would be the word. And then when I heard from Ms. Gabriel regarding the circumstances around why she hadn’t attended court, and I’m still not clear on all of those circumstances, but it doesn’t sound to me like they were investigated in a substantial way. So that gave me concern with regards to a 30 day sentence irrespective of the history that Ms. Gabriel would have before the court… Certainly not the court’s practice to go behind joint submissions and try to come up with their own decision. But in the this circumstance, in light of this particular case, what I’ve heard, and it’s certainly not a situation wherein pleading guilty for a failing to attend court is not… is not a complicated legal matter. There wouldn’t have been much negotiation… And just overall what… How is the administration of justice going to look with respect to this particular matter. I will give counsel another opportunity if they want to make submissions. But my thought process is that a 30 day custody sentence going forward would not be fit in this particular circumstance. [my emphasis added] [39] Crown counsel told the court in response:[8] … I don’t want to revisit your ruling Your Honour, but the Crown is of the view that to maintain confidence in the administration of justice here and let the greater public know that there has to be some consequences… A direction to come to court is not an invitation. And in the circumstances, particularly with someone with that history of recidivism of this very type of charge, a custodial sentence of some measure is required from the Crown’s perspective, so we’ll put that in the 14 to 21 day range. [40] Defence counsel stated: It is true that she was picked up on a warrant instead of able to turn herself in. And one might argue successfully that she had opportunity to do so sooner. In the ordinary course of things, perhaps 30 days might be appropriate. Given these facts, should your honour feel perhaps an extension of the CSO might be a better alternative, defence would certainly not argue with that. I also don’t say that my friend’s position of two weeks in custody is unreasonable either. In ordinary cases, certainly that would be appropriate. I would invite Your Honour to exercise your discretion as you see fit. [41] Immediately after those comments, the sentencing judge stated: With respect to the March 26, 2018 matter for which Ms. Gabriel has pled guilty for failing to attend court, there’s going to be a $20 fine, one day deemed served with respect to that matter. With respect to the two charges from July 18, 2017, you’re going to be sentenced, Ms. Gabriel, to 60 days conditional sentence… [discussion of the conditions associated with the house arrest ordered]… Then following the 60 day conditional sentence, you’re going to be subject to an 18 month probation order [conditions ordered], and a restitution order in the amount of $147.94 to be paid before the end of the 18 month probation order… there’s also going to be victim fine surcharges in the amount of $200 [$100 for each charge]. The application of the law to the facts [42] In R. v. Anthony – Cook, 2013 SCC 43, Justice Moldaver set out the inquiries that a trial judge should make when considering departing from a joint recommendation on sentence: 49 Finally, I would offer some brief guidance to trial judges on the approach they should follow when they are troubled by a joint submission on sentence. 50 Courts across the country are generally in agreement on the procedure judges should follow when they are inclined to depart from a joint submission (see, for example, B.O.2, at paras. 74-82; R. v. Sinclair, 2004 MBCA 48, 185 C.C.C. (3d) 569, at para. 17; G.W.C., at para. 26). The parties and interveners emphasize the importance of procedure. It [page225] ensures that joint submissions are given proper consideration, and that accused persons - who have already entered a plea of guilty - are treated fairly. The following procedures reflect practical wisdom gained from the experience of our trial and appellate courts. They are meant to apply only to those cases where the joint submission is contentious and raises concerns with the trial judge. As I mentioned earlier, most joint submissions are unexceptional and are readily approved by trial judges without any difficulty.3 51 First, trial judges should approach the joint submission on an "as-is" basis. That is to say, the public interest test applies whether the judge is considering varying the proposed sentence or adding something to it that the parties have not mentioned, for example, a probation order. If the parties have not asked for a particular order, the trial judge should assume that it was considered and excluded from the joint submission. However, if counsel have neglected to include a mandatory order, the judge should not hesitate to inform counsel. The need for certainty in joint submissions cannot justify failing to impose a mandatory order. 52 Second, trial judges should apply the public interest test when they are considering "jumping" or "undercutting" a joint submission (DeSousa, per Doherty J.A.). That is not to say that the analysis will be the same in either case. On the contrary, from the accused's perspective, "undercutting" does not engage concerns about fair trial rights or undermine confidence in the certainty of plea negotiations. In [page226] addition, in assessing whether the severity of a joint submission would offend the public interest, trial judges should be mindful of the power imbalance that may exist between the Crown and defence, particularly where the accused is self-represented or in custody at the time of sentencing. These factors may temper the public interest in certainty and justify "undercutting" in limited circumstances. At the same time, where the trial judge is considering "undercutting", he or she should bear in mind that the community's confidence in the administration of justice may suffer if an accused enjoys the benefits of a joint submission without having to serve the agreed-upon sentence (see DeSousa, at paras. 23-24). 53 Third, when faced with a contentious joint submission, trial judges will undoubtedly want to know about the circumstances leading to the joint submission - and in particular, any benefits obtained by the Crown or concessions made by the accused. The greater the benefits obtained by the Crown, and the more concessions made by the accused, the more likely it is that the trial judge should accept the joint submission, even though it may appear to be unduly lenient. For example, if the joint submission is the product of an agreement by the accused to assist the Crown or police, or an evidentiary weakness in the Crown's case, a very lenient sentence might not be contrary to the public interest. On the other hand, if the joint submission resulted only from the accused's realization that conviction was inevitable, the same sentence might cause the public to lose confidence in the criminal justice system. 54 Counsel should, of course, provide the court with a full account of the circumstances of the offender, the offence, and the joint submission without waiting for a specific request from the trial [page227] judge. As trial judges are obliged to depart only rarely from joint submissions, there is a "corollary obligation upon counsel" to ensure that they "amply justify their position on the facts of the case as presented in open court" (Martin Committee Report, at p. 329). Sentencing - including sentencing based on a joint submission - cannot be done in the dark. The Crown and the defence must "provide the trial judge not only with the proposed sentence, but with a full description of the facts relevant to the offender and the offence", in order to give the judge "a proper basis upon which to determine whether [the joint submission] should be accepted" (DeSousa, at para. 15; see also Sinclair, at para. 14). 55 This is not to say that counsel must inform the trial judge of "their negotiating positions or the substance of their discussions leading to the agreement" (R. v. Tkachuk, 2001 ABCA 243, 293 A.R. 171, at para. 34). But counsel must be able to inform the trial judge why the proposed sentence would not bring the administration of justice into disrepute or otherwise be contrary to the public interest. If they do not, they run the risk that the trial judge will reject the joint submission. 56 There may, of course, be cases where it is not possible to put the main considerations underlying a joint submission on the public record because of safety or privacy concerns, or the risk of jeopardizing ongoing criminal investigations (see Martin Committee Report, at p. 317). In such cases, counsel must find alternative means of communicating these considerations to the trial judge in order to ensure that the judge is apprised of the relevant considerations and that a proper record is created for appeal purposes. 57 A thorough justification of the joint submission also has an important public perception component. Unless counsel put the considerations [page228] underlying the joint submission on the record, "though justice may be done, it may not have the appearance of being done; the public may suspect, rightly or wrongly, that an impropriety has occurred" (C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed. 2012), at p. 73). 58 Fourth, if the trial judge is not satisfied with the sentence proposed by counsel, "fundamental fairness dictates that an opportunity be afforded to counsel to make further submissions in an attempt to address the ... judge's concerns before the sentence is imposed" (G.W.C., at para. 26). The judge should notify counsel that he or she has concerns, and invite further submissions on those concerns, including the possibility of allowing the accused to withdraw his or her guilty plea, as the trial judge did in this case. 59 Fifth, if the trial judge's concerns about the joint submission are not alleviated, the judge may allow the accused to apply to withdraw his or her guilty plea. The circumstances in which a plea may be withdrawn need not be settled here. However, by way of example, withdrawal may be permitted where counsel have made a fundamental error about the legality of the proposed joint submission, for example, where a conditional sentence has been proposed but is unavailable. 60 Finally, trial judges who remain unsatisfied by counsel's submissions should provide clear and cogent reasons for departing from the joint submission. These reasons will help explain to the parties why the proposed sentence was unacceptable, and may assist them in the resolution of future cases. Reasons will also facilitate appellate review. Stage I – the error committed by the sentencing judge [43] The Judge’s words included: … The concern I have, and had with Ms. Gabriel’s matter, I understand there being a history of [section] 145 s [breaches], it struck me as a 30 days’ custody sentence being unduly harsh, I guess would be the word. And then when I heard from Ms. Gabriel regarding the circumstances around why she hadn’t attended court, and I’m still not clear on all of those circumstances,[9] but it doesn’t sound to me like they were investigated in any substantial way… In this circumstance, in light of this particular case, what I’ve heard, and it’s certainly not a situation wherein pleading guilty for failing to attend court is not… is not a complicated legal matter. There would not have been much negotiation… How is the administration of justice going to look with respect to this particular matter. I will give counsel another opportunity if they want to make submissions. But my thought process is that a 30 days’ custody sentence going forward would not be fit in this particular circumstance. [44] Here, the Judge did not propose allowing Ms. Gabriel to withdraw her guilty plea; nor did she provide “clear and cogent reasons” for departing from the joint recommendation. [45] As I read her reasons, in essence, she determined that what was objectionable about the 30 days’ custody sentence recommendation, was that the recommended sentence was “unfit”, or outside the range of sentences given the circumstances of Ms. Gabriel, and circumstances of the offence. [46] She did not apply the “public interest test,” which Justice Moldaver noted “is distinct from the “fitness” test used by trial judges and appellate courts in conventional sentencing hearings” (para. 31). [47] Justice Moldaver confirmed that: Under the public interest test, a trial judge should not depart from a joint recommendation on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. But what does this threshold mean? Two decisions from the Newfoundland and Labrador Court of Appeal are helpful in this regard. In Druken,… held that a joint submission will bring the administration of justice into disrepute or be contrary to the public interest if, despite the public interest considerations that support imposing it, it is so ‘markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a breakdown in the proper functioning of the criminal justice system’. And, as stated by the same court in R v B.O.(No.2), 2010 NLCA 19 at para. 56, when assessing a joint recommendation, trial judges should ‘avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts’. … Rejection, denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty and resolution discussions, to believe that the proper functioning of the justice system has broken down. This is an undeniably high threshold – and for good reason, as I shall explain. [48] Ms. Gabriel had 13 prior convictions under Section 145 Criminal Code. She had 32 previous criminal convictions in total. Ms. Gabriel was responsible for a significant delay in the processing of her case, and an unnecessary use of police resources to twice locate and arrest her. [49] I infer that she knew full well, as a result of not appearing in court, and then not voluntarily appearing in court in the intervening three weeks, she was in breach of s. 145 during that entire time period, and that the police would be looking for her in order to arrest her.[10] [50] Moreover, a close examination reveals that the proposed 30 days’ custody sentence was well within the “range of sentence”. [51] The maximum sentence (summary conviction) for Section 145(1) breaches is contained in s. 787 Criminal Code: “a fine of not more than $5,000 or to a term of imprisonment not exceeding six months, or to both.” [52] In R. v. Young, 2014 NSCA 16, the Court was dealing with a sentence appeal of an indictable s. 145 breach charge (2 year imprisonment maximum). [53] On October 11, 2012, Mr. Young had entered into a recognizance “… Not [to] contact or communicate with, or attempt to contact or communicate with, directly or indirectly [his domestic partner] Florence Kirk…”. On October 25, 2012, he returned to court on remand. He was later found guilty that he had contact with Ms. Kirk that day while he was standing in the courtroom, when he deliberately turned around to face her, and as the sentencing judge stated: “It is a pretty serious offence for someone in an open court to turn to the person who is a complainant and victim alleged in a domestic violence situation, and basically make commentary to them in a heated tone such that it’s perceived to be angry in tone and in gesture”. Mr. Young stated to her: “I’ll hang you. I’ll call and make fucking complaints… [Inaudible]”. [54] Justice Bryson for the court stated in relation to Mr. Young’s appeal of his 12 month sentence: 24 Two examples of cases which have some similarity to the circumstances of the offence and the offender in this case are: R. v. Clayton, [2001] N.S.J. No. 438 and R. v. J.W.F., 2006 NSSC 273. 25 In Clayton, the accused was sentenced to four months' imprisonment for breaches of recognizance, concurrent to his current sentence. Conditions of recognizance included keeping the peace. Clayton had a 20-year criminal record for breach of recognizance, sexual assault and failure to appear. 26 In J.W.F., the context was sexual assault and communicating with a minor for sexual purpose, the court decided: [3] ... Count 3 -- that he did between the 1st day of January A.D., 2004 and the 30th day of June A.D., 2004 at or near (...) Dartmouth, in the Province of Nova Scotia, being at large on his Undertaking Given to a Justice, and being bound to comply with a condition of that Undertaking directed by the said Justice, fail without lawful excuse to comply with that condition, to wit: you shall keep the peace and be of good behaviour, contrary to Section 145(3)(a) of the Criminal Code. ... [17] ... On the 3rd Count it is the sentence of the court that you be sentenced to a term of 4 months concurrent ... ... [3] Count 8 -- did between the 1st of January A.D. 2004 and the 30th day of June A.D., 2004 at or near (...) Dartmouth in the Province of Nova Scotia being at large on his Undertaking Given to a Justice fail and being bound to comply with a condition of that Undertaking directed by the said Justice fail, without lawful excuse to comply with that condition, to wit: you shall keep the peace and be of good behaviour, contrary to Section 145(3)(b) of the Criminal Code. ... [19] On Count No. 8 the sentence will be 4 months concurrent. [Emphasis added] 27 Both counsel submitted that breaches of recognizance usually attract a sentence of one to three months' incarceration. The imposition of 12 months' imprisonment for breach of a recognizance in a non-violent domestic abuse context, absent violation of a current probation order and compulsive re-offending behaviour in this case, is excessive. Certainly, Mr. Young's behaviour was serious and a flagrant disregard of the court's authority. But it was spontaneous, not pre-meditated and appears to have been a reaction to frustrating circumstances in the controlled environment of a courtroom where Mr. Young lacked counsel. Mr. Young was in court by compulsion. Ms. Kirk was there voluntarily. Mr. Young could not avoid the proximity of her presence. 28 Although Mr. Young has an extensive criminal record, with one exception, he had never received more than a two month sentence for breaches of recognizance, undertaking or probation. In many instances his custodial sentence was a matter of days. His most serious -- and recent -- period of incarceration for a breach of probation occurred in 2009. He received a sentence of six months, consecutive to sentences for theft under $5,000 (s. 334(b)) and possession of stolen property (s. 334(1)(a)). 29 In the circumstances of this case, and this offender, a sentence of 12 months' incarceration is clearly excessive. I would grant leave to appeal and allow Mr. Young's sentence appeal. I would impose a sentence of six months. I would not otherwise alter sentence. [my italicization added] [55] In R. v. McKenna, 2014 NSSC 92, Justice Scaravelli overturned a 14 month sentence for three breaches of recognizance imposed in provincial Court, and imposed a 6 month sentence. Mr. McKenna had an extensive record including breaches of probation or recognizances. He did not have a record for violence. The circumstances of the breaches were non-violent. [56] I will add here that in my considerable criminal law experience, (in the case of summary conviction elections by the Crown on such charges), it is not unusual for repeat offenders to receive 1 to 3 months in custody for freestanding breaches of conditions of release under Section 145 of the Criminal Code. [57] In R. v. Perry, [1996] NSJ 680, Justice Kelly imposed a 45 day custodial sentence for breach of a non-contact provision in a recognizance (s. 145 offence). Therein he stated: 15 Mr. Perry has had a clean record for the past year and there is no suggestion that he has breached any further the terms of the probation of the undertaking or the probation sentence that occurred as a result of his sentence for assault. He is presently on probation for that conviction. 16 Under these circumstances it is appropriate to place weight on the factor of specific deterrence. In Peter Allan Walsh v. Her Majesty the Queen, (N.S.C.C.), March 9, 1990, Freeman, J. (unreported) (CBW 8187), Judge Freeman, as he then was, dealt with a breach of probation and an appeal of sentence of three months for a breach or failure to appear for an appointment, which was a condition of that probation. The trial judge in that matter took into consideration the fact that the accused person had also failed to report for the trial in the matter and the matter had to proceed ex parte. What is relevant for the purposes of this sentencing is the comment of Judge Freeman at pp. 6-7: It is most important for the benefit of the public and in particular for the benefit of accused persons that the probation procedure be respected. When the probation procedure is flouted as it has been by Mr. Walsh then the court must resort to strongly deterrent sentences in order to preserve the integrity of the system. [58] Having determined that the sentencing judge erred, it now falls to me to consider what is the appropriate outcome here? [59] In the normal course, absent exceptional circumstances, the jointly recommended sentence should be imposed. Stage II – are there exceptional circumstances that militate against incarceration? [60] Counsel have suggested, and satisfied me, that the relevant factors at play here should drive my assessment of the interests of justice, to the conclusion that Ms. Gabriel’s 30 day sentence should not be imposed, but it and the associated victim fine surcharge be permanently stayed. Conclusion [61] I sentence Ms. Gabriel to 30 days’ custody for the March 26, 2018 Section 145 offence. In the interests of justice, I stay that sentence and the associated victim fine surcharge. Rosinski, J. SUPREME COURT OF Nova Scotia Citation: R. v. Gabriel, 2018 NSSC 252 Date: 2018-10-16 Docket: Hfx. No. 475620 Registry: Halifax Between: Her Majesty the Queen v. Chantel Dawn Gabriel ________________________________________________________________ ERRATUM: October 19, 2018 ________________________________________________________________ Judge: The Honourable Justice Peter P. Rosinski Heard: October 10, 2018, in Halifax, Nova Scotia Final Written Submissions: October 9, 2018 Counsel: Erica Koresawa for the Appellant Colin Coady, for the Respondent Erratum: In Paragraph 20, “R. v. Purchase” has been replaced with “R. v. Skinner” [1] The sentencing judge did impose a consecutive 60 day Conditional Sentence Order and 18 months probation on other charges, sentenced at the same time. [2] I recognize that the Provincial Court dockets are very busy and I understand that I should show deference to the sentencing judge unless it is clearly demonstrated that I must overturn her decision. [3] See for example R. v. Scott, 2013 NSCA 28. To similar effect, see: R. v. Suter, 2018 SCC 34, at para. 103; R. v. Butler, 2008 NSCA 102 (his first custodial sentence; addiction driven crime and “real prospect that he is genuinely motivated to conquer his drug addiction” – at para. 39); R. v. Best, 2012 NSCA 34, at para. 34; R. v. MacDonald, 2014 NSCA 102, at para. 57; R. v. Shi, 2015 ONCA 646, at paras. 12-13. [4] Interestingly, Justice Cromwell (as he then was) stated that a dispute about the “fitness of sentence” does not constitute an “error of law alone” within the meaning of Section 839 of the Criminal Code – R. v. Rideout, 2005 NSCA 122, at paras. 13-14. [5] Counsel at the appeal, have confirmed that there was to be a joint recommendation for a 60 days Conditional Sentence Order (house arrest) followed by 18 months’ probation on the July 17, 2018 charges alone. [6] These facts are confirmed by me listening to the audio recording of court proceedings that day, which are consistent with the endorsements on the information. [7] These facts are confirmed by me listening to the audio recording of court proceedings that day, which are consistent with the endorsements on the information. [8] While recognizing that counsel must be responsive to sentencing courts’ concerns, I believe the better practice, in circumstances where no new relevant and material information has come to light since the joint recommendation was agreed upon, is for counsel to continue to represent the joint recommendation as suitable, or withdraw it by agreement. [9] Ms. Gabriel stated: “I missed the first court date [March 5] because I had a broken rib… And I meant to turn myself in before I got picked up but it just didn’t happen that way. (Question – were you in hospital?) Yes. And I have two broken ribs and one cracked.” Her counsel stated: “she was treated and released, your Honour. She wasn’t an inpatient. She was admitted for the purpose of diagnosis and released from the hospital.” [10] Which they were entitled to do in accordance with the Section 524 Criminal Code warrant. Having said that, I also recognize that Ms. Gabriel’s circumstances are rooted in substance abuse, which can interfere with her daily routine functioning.