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DATE: 20010207
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DOCKET: C35351
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COURT OF APPEAL FOR ONTARIO
FINLAYSON, LABROSSE and LASKIN JJ.A.
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BETWEEN:
HER MAJESTY THE QUEEN
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David M. Tanovich, for the appellant
Respondent
- and -
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JASON CARMEN CERASUOLO
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Laura Hodgson, for the respondent
Appellant
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Heard: January 24, 2001
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Released orally: January 24, 2001
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On appeal from the sentence imposed by Justice Derek T. Hogg dated June 21, 2000.
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## FINLAYSON J.A.:
[1] This appeal is from sentence on a plea of guilty to one count of extortion, two counts of theft under and one count of failure to comply. Ignoring a joint submission by Crown and defence counsel, the trial judge imposed a sentence of three years imprisonment. The joint submission was for a sentence of one year followed by two years probation.
### Facts
[2] The extortion charge was the most serious offence. On November 22, 1999, the appellant had made contact with the complainant through a gay dating chat line. He went to the complainant’s home and they had consensual sex. He asked the complainant for money to buy marijuana and received about $200. Subsequently, the appellant would call the complainant or show up at his door to extort more money through threats. The appellant used the following reasons for requiring the money:
“I’m 17 and you’re a child molester and you’re going to jail. I have two older brothers and they really want to kill you, but I’m trying to keep them away.”
“I need the money to pay my mother.”
“I am in trouble with a gang and owe them money. They know where you live.”
“I got some people who know where you live and will kill you when you’re not looking, so you better watch your back, if you don’t give me more money.”
[3] The theft under count was for the theft of some $600 from his mother. She had received the money from St. Judes Church to help her pay her rent. The other charge of theft also arose out of a chat line contact. This time he met a woman, moved in with her for a short period of time after which he stole her television set. The failure to comply was a violation of his probation on a conviction of possession of marijuana. The total financial loss suffered by all victims as a result of cash and stolen articles was $4,557.00.
[4] In mitigation, it was said of the appellant that he committed the offences to support an addiction to crack cocaine. He was 25 years of age and had served 10 weeks of pre-sentence custody. He was abused as a child.
### Reasons
[5] There was some dispute in this court whether the submissions of counsel amounted to a joint submission because of a disagreement as to the precise credit the appellant should receive for pre-trial custody, but it was clear that both counsel suggested a one year sentence and the trial judge treated the submissions as joint. Nevertheless, he simply dismissed them out of hand. He said:
As I stated before, I am not bound by any submission that was given to me by the Crown or any attempt to make that a joint submission by the accused’s counsel, Ms. Robb.
The facts surrounding this case are absolutely atrocious. Chat lines are put into place for people to get together on a proper basis. I may not agree with the type of chat lines that are on the air, of which there are hundreds of them on the Internet, however, people put faith in these things and you, sir, have taken advantage of them.
The facts surrounding this case, as I said, are absolutely atrocious. You took advantage of this man, you went and had sexual relations with him and then tried to bring them out in the open, thereby causing him a horrendous embarrassment. You have also swindled these women and swindled from a church, and as far as I am concerned, these twelve months is not proper.
As far as I am concerned, the message must go out to people who are going to take advantage of those who put their faith in the chat line that will not be allowed by this Bench or any other Bench. You are going to go to the penitentiary for three years.
[6] At no time did the trial judge give an analysis as to why it would be contrary to the public interest to give effect to the joint submission or why it would bring the administration of justice into disrepute.
### Analysis
[7] While the offences, particularly the extortion, were serious and the appellant had a record, this did not justify the trial judge’s summary rejection of the joint submission followed by a custodial sentence that tripled the Crown’s suggestion. A joint submission is not binding on the trial judge but it commands more deference than that accorded to it by this trial judge, particularly when accompanied by a plea of guilty at an early enough stage that the complainant in the extortion charge was spared the considerable embarrassment of having to testify at trial.
[8] This court has repeatedly held that trial judges should not reject joint submissions unless the joint submission is contrary to the public interest and the sentence would bring the administration of justice into disrepute: e.g. [R. v. Dorsey (1999), 1999 CanLII 3759 (ON CA)](https://www.canlii.org/en/on/onca/doc/1999/1999canlii3759/1999canlii3759.html), 123 O.A.C. 342 at 345. This is a high threshold and is intended to foster confidence in an accused, who has given up his right to a trial, that the joint submission he obtained in return for a plea of guilty will be respected by the sentencing judge.
[9] The Crown and the defence bar have cooperated in fostering an atmosphere where the parties are encouraged to discuss the issues in a criminal trial with a view to shortening the trial process. This includes bringing issues to a final resolution through plea bargaining. This laudable initiative cannot succeed unless the accused has some assurance that the trial judge will in most instances honour agreements entered into by the Crown. While we cannot over emphasize that these agreements are not to fetter the independent evaluation of the sentences proposed, there is no interference with the judicial independence of the sentencing judge in requiring him or her to explain in what way a particular joint submission is contrary to the public interest and would bring the administration of justice into disrepute.
[10] The sentencing judge’s statement that the facts are atrocious is not sufficient to explain why the joint submission was being ignored. While the facts surrounding the extortion were serious, there is nothing in the facts agreed upon for the purpose of sentencing that suggests a one-year prison term would not meet the ends of justice. In fact, I doubt if “atrocious” is an appropriate description for what occurred in the chat line counts. The trial judge seemed overly concerned with the harm being done to the integrity of chat lines. In my view, the message of the sentencing judge that the bench will protect those who “put their faith in chat lines” is unrealistic and imprudent.
### Conclusion
[11] Accordingly, leave to appeal sentence is granted. The appeal is allowed and the sentence is varied by giving effect to the joint submission and imposing a sentence of one year followed by two years probation.
Signed: “G.D. Finlayson J.A.”
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“I agree J.M. Labrosse J.A.”
“I agree John Laskin J.A.”
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minicounsel
