R. v. Wickstrom

2011 BCSC 745 R. v. Wickstrom

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Wickstrom, 2011 BCSC 745 Date: 20110607 Docket: X074232 Registry: New Westminster Regina v. Kenneth Wayne Wickstrom Before: The Honourable Mr. Justice Bernard On appeal from Provincial Court of British Columbia, Surrey Registry, No. 160488-9B, Order made May 11, 2010 Reasons for Judgment Counsel for the Crown/Respondent: J.R.W. Caldwell Counsel for the Defendant/Appellant: M.S.A. Fox Place and Date of Hearing: New Westminster, B.C. February 14 and March 25, 2011 Place and Date of Judgment: New Westminster, B.C. June 7, 2011 A. Overview [1] On May 11, 2010, Kenneth Wickstrom entered a guilty plea to one count of Breach of Probation before Her Honour Judge Gordon of the Provincial Court of British Columbia. In very brief sentencing submissions immediately following the plea, both the Crown and Defence invited the judge to impose 90 days (less credit for time served) in jail, as a fit sentence. Gordon P.C.J. acceded to this shared position; however, she also imposed a three-year probation order. In so doing, she did not invite submissions from either party or give reasons for departing from the parties' joint submission. [2] Mr. Wickstrom has appealed his sentence. He seeks to have the probation order struck on the basis that Gordon P.C.J. erred in principle by: (a) not accepting a joint submission which was fit and

reasonable; (b) not inviting counsel to make further submissions before imposing a sentence at variance with the joint position; and, (c) failing to give reasons for declining to accede to the joint submission. [3] Alternatively, Mr. Wickstrom seeks a significant reduction in the probationary period, in keeping with the "innocuous" nature of the probationary breach. B. Background [4] Mr. Wickstrom is a 55-year-old man with a lengthy criminal history; one that dates back to 1978. Since 2005 his criminal record shows many convictions for Indecent Acts and for Failures to Comply with Court Orders. On December 12, 2007, for an Indecent Act offence, Mr. Wickstrom was sentenced to "time served" (six months) and three years of probation. [5] On April 17, 2010, while Mr. Wickstrom was still bound by the December 12, 2007 probation order, he was seen in a public park contrary to one of the conditions of his probation. It was the early evening and Mr. Wickstrom was carrying stereo speakers across a city park near to his residence. The police investigated immediately, learned of his prohibition, arrested him, and charged him with one count of Failing to Comply with a Probation Order. [6] Following his arrest, Mr. Wickstrom remained in custody. On May 11, 2010, he pleaded guilty and was sentenced to 67 days in jail (with credit given for 23 pre-sentence custodial days) and placed on

probation for three years, with conditions as follows: (1) Keep the peace and be of good behaviour; (2) Appear before the court when required to do so by the court; (3) Notify the court or the probation officer of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; (4) Do not communicate or have contact in any manner with people under the age, of 14 years; and, (5) Do not go within one block of any playground, school ground, public park, public swimming area, or community centre. C. The Sentencing Hearing [7] Mr. Redekopp was Mr. Wickstrom's legal counsel at the sentencing hearing. When the Wickstrom case was called, Mr. Redekopp informed the Court that the matter was for disposition, and Mr. Wickstrom entered a guilty plea. [8] Mr. Shaw was counsel for the Crown. In very brief sentencing submissions, he adverted to a criminal record and informed the Court that Mr. Wickstrom "has a problem controlling himself and his behaviour"; hence, he was "not supposed to be around any parks". He described the breach in question, as an "innocuous" one involving Mr. Wickstrom walking across the park carrying stereo speakers he had found. Mr. Shaw said that although Mr. Wickstrom "wasn't up to anything" he was, nonetheless, in breach of his probation. [9] Mr. Shaw put forward the Crown's sentencing position as

follows: He got 60 days the last time. I think it's a 90-day sort of situation, in the Crown's submission, this time. It just gets - - goes up the ladder. He knows what he needs to do. An update might assist in the sense that he must be on some programming - some variety - because he's got reporting conditions and the like, and that's been going on for years, as well; but, I don't know what the status is because we don't have a report. [10] Mr. Redekopp's position on sentence (save for the issue of credit for time served) was similarly brief: Yes, Your Honour. Essentially a joint submission. I've talked with my client and with respect to Mr. Wickstrom's record and the nature of the breach, I'm going to suggest that a 90-day sentence is appropriate. (T. p. 2, lines 31-35) Given the fact that Mr. Wickstrom has the step-up principle of 90 days, the fact that although he was breaching his bail (sic) condition, there was nothing else of - - that was a problem with respect to the protective nature of that clause, Your Honour, I'm going to suggest that my friend and I are - - should be considering a joint submission as 90 days with credit for 38 days time served, Your Honour. (T. p. 4, lines 4-12) [11] The judge said only the following in relation to sentence: All right, I haven't been persuaded to increase the time that you have spent in custody, so I will credit you with 23 days

time served, and order that you serve a further 67 days, which makes a total of 90 days. In addition, I am going to place you on probation for three years. The conditions are . . . (T. p. 4. lines 33-47, p 5, lines 1-14) D. Synopsis of the parties' positions [12] The Appellant's primary position is that Judge Gordon erred in principle when she failed to follow the joint sentencing position placed before her. The Appellant says that the probation order the judge imposed was a material variation from the parties' joint submission. The Appellant's position is that a 90-day period of incarceration was a fit and reasonable sentence and, as such, Judge Gordon was obliged to follow it or, to give reasons for declining to do so and invite further submissions. [13] The Appellant submits that the only question for the appellate court, in such circumstances, is whether the joint sentencing position was within the range of fit and reasonable sentences for the offence in question; if it was, then sentence must be varied to cancel the probation order. In support of its position the Appellant relies upon R. v. MacDonald, 2004 ABCA 295; and R. v. Melvin, 2009 NSSC 152. [14] The Appellant's alternative position is that a three-year probationary period is disproportionate to the gravity of offence: one described by the Crown as "innocuous". The Appellant says that if the probation order stands,

then it must be significantly reduced in its duration to make it proportionate to the crime. [15] The Respondent's position is that Judge Gordon was not bound to adopt the joint submission of counsel and, that while it would have been preferable if further submissions were invited before imposing probation order, the failure to do so is not an error in principle justifying appellate intervention. The Respondent submits that the only question for the appellate court, given the issues raised, is whether the sentence imposed is demonstrably unfit; if it is not then it should not be disturbed on appeal. [16] Not surprisingly, the Respondent has not suggested that the 90-day period of incarceration without probation is not a "fit and reasonable" sentence; however, it submits that appending to it the three-year probationary term does not, thereby, render it unfit and unreasonable. In support of this position it submits: (a) that probation orders are not punitive in nature; (b) that the judge knew that the appellant's existing probation order would expire in seven months; and, (c) that a further lengthy probationary period was appropriate to protect children. [17] In support of its position, the Respondent cites R. v. Grimmson, 1997 CarswellBC 2585 (C.A.); R. v. Pretty, 2005 BCCA 52; R. v. Shankaran, 1995 CarswellBC 727 (C.A.); R. v. Proulx, [2001] 1 S.C.R. 61; and, R. v. Shoker, [2006] 2 S.C.R.

399. E. Discussion [18] This sentence appeal is predicated upon much common ground; in particular (a) that the appellant's guilty plea was pursuant to a negotiated plea agreement; (b) that the parties presented a joint sentencing submission as an aspect of the agreement; (c) that Judge Gordon was aware that the guilty plea and joint submission were linked to such an agreement; (d) that in imposing sentence Judge Gordon declined to adopt the joint submission without inviting further submissions or giving reasons for imposing a different sentence; and (e) that the joint submission was within the range of fit and reasonable sentences. While I think (c) is less than clear in the court record, it was not raised as an issue in this appeal. [19] In light of the aforementioned common ground, the live issues raised by the appellant are relatively narrow: (a) did the sentencing judge err in principle when she declined to accede to the joint submission by adding a three-year probation order, without inviting further submissions and giving reasons for departing from the joint submission? (b) if so, then should the reviewing court vary the sentence to that submitted jointly at the sentencing hearing, so long as it was a fit and reasonable one? [20] In MacDonald, supra, the Alberta Court of Appeal answered these questions in the affirmative. Fruman J.A., speaking for the court said: 1 FRUMAN

J.A. (orally):-- The appellant pled guilty to a series of offences relating to three indictments. In addition to fines and restitution, the crown and defence agreed to a joint submission of one year imprisonment less five months' credit for pre-trial custody. They disagreed whether the sentence should be served in gaol or in the community. 2 The sentencing judge concluded the appellant was a danger to the public and imposed a seven-month term of incarceration. No issue is taken on appeal with that sentence. However, she also imposed a 12-month probation order with onerous conditions, including a curfew, counselling, a prohibition on the use of alcohol and drugs, and random drug testing. This was not part of the joint submission and constituted a variation of it. The sentencing judge had not discussed the probation order with counsel or given them an opportunity to make submissions about the variation. 3 While a judge is entitled to depart from a joint submission, certain procedures must be followed. In R. v. Tkachuk (2001), 293 A.R. 171 at para. 32, this court clarified that: 1. A sentencing judge must give serious consideration to the joint sentence submission; 2. A joint sentence submission should be accepted unless is it considered unfit or unreasonable; 3. If the sentencing judge is inclined to depart from the joint sentence, the judge must so advise counsel and permit them

to make further submissions in support of the joint submission to address the judge's concerns; and 4. If the judge remains of the view that the joint submission is unfit or unreasonable, the judge may impose a different sentence, but must give reasons. 4 Unfortunately, that procedure was not followed in this case. Accordingly, we invited the crown and defence to make further submissions regarding the sentence imposed and the judge's refusal to follow the joint submission. 5 We conclude that the joint submission was fit and reasonable and should not have been varied. Therefore, the appeal is allowed and the 12‑month probation order is vacated. [21] Similar views were expressed by Mr. Justice Wright of the Supreme Court of Nova Scotia, in Melvin, supra: 26 The obligations of a sentencing judge, when presented with a joint recommendation of counsel arising from a genuine plea bargain, were recently considered by the Nova Scotia Court of Appeal in R. v. MacIvor [2003] N.S.J. No. 188 and in R. v. G.P. [2004] N.S.J. No.

496. In essence, the Court of Appeal has set out those obligations in two respects: (1) The sentencing judge is required to assess whether the joint recommendation on sentence is within an acceptable range (i.e., whether it is a fit sentence) and if it is, there must be sound reasons for departing from it (see, MacIvor at paras. 31-35 where the sentencing judge, [2002] N.S.J. No. 507, was found to have erred in "jumping" the joint submission in a case where the jointly recommended sentence was manifestly fit and there were no compelling reasons for departing from it; and (2) The sentencing judge, before rejecting the joint recommendation, is required to advise counsel that judicial consideration was being given to departing from it and to afford counsel an opportunity to make submissions justifying their proposal (see, G.P. at paras. 17-19 where the appeal was allowed by reason of the sentencing judge's failure to do so). 27 Counsel for the appellant submits that this twofold obligation comes into play not only where both counsel have jointly recommended a specific sentence but also in the situation where, as a result of plea negotiations, counsel have agreed only on the range of sentence to be jointly submitted. It is further argued that this twofold obligation extends to the range of sentence situation where, as here, the Crown has committed itself to recommend one end of the

range, with the defence at liberty to argue a more lenient position. 28 In principle, I agree with that submission whether the negotiated plea agreement in the present case is properly labelled a joint recommendation or something short of that. It is nonetheless based on a genuine plea bargain and committed the Crown to a certain position. I do not see any sound rationale for distinguishing this agreement from more close-knit plea agreements which involve a joint recommendation for a specific sentence or a defined range of sentence. Each of these situations, in my view, trigger the above recited obligations of the sentencing judge provided they arise from a genuine plea bargain. From an interests of justice perspective, I consider the following passage written by Justice Fish in R. v. Verdi-Douglas (2002), 162 C.C.C. (3d) 37 (Que. C.A.) to have equal application here: Their shared conceptual foundation is that the interests of justice are well served by the acceptance of a joint submission on sentence accompanied by a negotiated plea of guilty -- provided, of course, that the sentence jointly proposed falls within the acceptable range and the plea is warranted by the facts admitted. [22] In British Columbia our Court of Appeal has adopted a similar, albeit slightly less rigid, view of the sentencing judge's role when presented with a joint submission linked to a negotiated plea

agreement. In Pretty, supra, Mr. Justice Low said: 2 The appellant contends that the appeal judge erred in not finding error on the part of the sentencing judge in imposing a sentence greater than that proposed in the joint submission without advising counsel and without having a good reason for the departure. It is clear from the cases that a sentencing judge is not bound by a joint recommendation from counsel as to the appropriate sentence. The judge can reject the joint submission but ought to give reasons for doing so and not disregard it or overlook it. The authorities in this Court state that it is preferable for the judge to make plain the reasons for the concern with the joint submission so that counsel can place any additional relevant material on the record for a possible appeal. However, the fact that the judge does not, before giving reasons for sentence, state concerns he has with respect to the joint proposal does not mean that an appeal court must find the sentence to be unfit and reduce it to that proposed in the joint submission. [23] The foregoing passages from Pretty, supra, suggest that a sentencing judge does not commit an error in principle requiring the appellate court to impose the sentence sought in the joint submission (so long as it is fit), merely because the sentencing judge failed to invite further submissions and failed to give reasons for

imposing a different sentence. In this regard, the respective appellate courts of British Columbia and Alberta seem to differ, notwithstanding apparent general agreement about the sentencing judge's role in such matters. [24] In MacDonald, supra, and Pretty, supra, the appellate courts of Alberta and British Columbia, respectively, have acknowledged the unique role of the sentencing judge who is presented with a joint submission arising from a negotiated plea agreement, and have affirmed that considerable deference should be accorded to joint submissions in such matters. These two decisions and Melvin, supra, recognize that plea agreements with joint sentencing submissions are a widely accepted and valuable extra-judicial aspect of the administration of justice. Plea agreements permit the reasonable resolution of prosecutions which may well be fraught with frailties not known to the court or the public. Evidentiary or other issues in a case may be such that considerable reservations exist about the enduring strength of a prosecution. For example, essential witnesses may become uncooperative, hostile, fearful, ill, etc. While plea agreements will undoubtedly represent compromises which may be troubling to some (particularly, those who are unaware of the reasons behind them) the realities of cases may justify them as eminently sensible and reasonable resolutions in all the

circumstances. [25] It is self-evident that the value of plea agreements would be seriously undermined if the courts were generally disinclined to show considerable deference for them at sentencing and upon appellate review. In Alberta, such deference is shown in the mandatory language found in MacDonald, supra. [26] In British Columbia, the deference is couched in permissive language. For example, Low J.A. said that the judge "ought to", rather than "must", give reasons for rejecting a joint submission, and that the failure to do so "does not mean that an appeal court must find the sentence to be unfit and reduce it to that proposed in the joint submission" (underlining added). The use of such language seems intended only to permit some limited flexibility at the appellate level, rather than to undermine, in any sense, the general efficacy of plea agreements. Mr. Justice Low's words suggest that a reviewing court's approach to these matters will be different from other sentence appeals, in the sense that the court will be guided, albeit not bound, by sentencing principles which show due regard for joint submissions arising from plea agreements. [27] In Pretty, supra, the appellate court was faced with unusual circumstances; ones very different from the case at bar, and ones that called for the flexible approach expressed by Low J.A., in order to achieve a just result: 7 We are

not told that there was any other information that the defence could have put before the sentencing judge had he signalled dissatisfaction with the joint submission. This was not a complicated matter and, although the sentence proceeding did not take much time, it seems that counsel made complete submissions and it is difficult to conceive what else might have been said to attempt to support the sentence proposed or to add to the record for a possible appeal. The judge was not bound by the submission, he found that he did not consider a conditional discharge to be "not contrary to the public interest" as required by s. 730(1) of the Criminal Code, and the circumstances, in my view, made that a reasonable conclusion. [28] At Mr. Wickstrom's sentencing hearing, "probation", as an aspect of the sentence, was never addressed by the parties. The judge heard nothing for, or against, it. The judge heard nothing regarding the appropriate duration. The judge heard nothing about suitable conditions. These circumstances are far removed from those in Pretty, supra. [29] In R. v. Penney, 2010 BCCA 307, the court re-affirmed the reasoning in Pretty, supra, and identified a further distinguishing aspect of such sentencing hearings: 8 I would add to the comments of Mr. Justice Low that it is, as well, preferable, and I understand it is often a course taken, that the judge, after hearing

submissions and determining that he or she will not follow the joint submission, will indicate that result to counsel and thereby permit an opportunity for both counsel to consider whether there should be a withdrawal of a guilty plea. F. Conclusion [30] Having due regard to all the foregoing, I am satisfied that the probation order in question ought to be vacated. The 90-day joint sentencing position was a fit and reasonable sentence; there has been no suggestion otherwise. The sentencing judge gave no reasons for departing from the joint submission. She heard no submissions about the efficacy of a probation order of any duration, let alone one of three years with several restrictive conditions. She gave no opportunity to Mr. Wickstrom to consider whether he wished to apply to withdraw his guilty plea. [31] It is also significant that the circumstances of the breach were fairly characterized by the Crown as innocuous and that very little was said about the circumstances of the offender; thus, the foundation for imposing the probation order in question was dubious. It seems that the sentencing judge simply used the fact of a breach, per se (i.e., without regard for the nature of the breach and without information justifying the continuing need for restrictive long-term conditions) as an opportunity to extend Mr. Wickstrom's existing probationary conditions for another two years

and five months. [32] I am satisfied that even with British Columbia's flexible approach to sentence appeals in these matters, there ought to be a sound basis for departing from the general principle of deference to joint submissions linked to plea agreements; such is, in my view, consistent with the reasoning in Pretty, supra. I am unable to conclude that there was such a basis here. [33] It must be presumed that if Crown counsel's view of this matter was (a) that a probation order was a necessary and appropriate aspect of the sentence, and (b) that the prosecution's case was solid, then a probation order would have been a non-negotiable aspect of any plea agreement. The Crown is in a unique position to make an informed decision in these matters. It may be, for example, that the Crown was of the view that a probation order was not supportable due to the "innocuous" nature of the breach, or that Mr. Wickstrom was already bound by a similar order and the Crown's view was that another order was superfluous, or that another sentencing for Mr. Wickstrom was pending, on a matter which might better support the imposition of a restrictive and lengthy probation order. The possible scenarios and considerations are manifold. They will not be known to the court; however, they undoubtedly inform the plea negotiations and, thus, the joint submission. [34] There is no question that Judge

Gordon was not bound by counsels' joint submission if she was not satisfied that it was fit and reasonable, in all the circumstances; however, such a view was never expressed by her. Had she done so, it is reasonable to presume that the Crown would have expressly stated that it was not seeking a probation order and this would likely have ended the court's consideration of the matter, given that there was virtually no factual foundation before the court for the imposition of such an order. [35] Notwithstanding the Respondent's urgings regarding the probation orders as non-punitive, I do not think the determination of this appeal turns on whether a probation order is characterized as rehabilitative rather than punitive. I am satisfied that the appending of a probation order to the jail sentence was a material variation of the joint submission. In MacDonald, supra, the circumstances were remarkably similar to the case at bar. The sentencing judge was presented with a joint submission of one year in jail (reduced by five months as credit for time served). The judge acceded to the jail-term submission, but added a 12-month probation order "with onerous conditions", without inviting submissions or giving reasons for departing from the joint submission. The appellate court concluded that the probation order was an unwarranted variation of the joint submission and, thus, vacated it. G. Disposition [36] The appeal is allowed. The three-year probation order is hereby vacated. "The Honourable Mr. Justice Bernard"