Court Information
Ontario Court of Justice
Date: February 23, 2017
Court File No.: Toronto 17-15000482
Parties
Between:
Her Majesty the Queen
— And —
Jose Luis Pitot Flores and Christian Eduardo Criado Ordonez
Before: Justice David A. Fairgrieve
Heard on: January 26 and February 16, 2017
Reasons for Judgment released on: February 23, 2017
Counsel
Nathan Kruger — counsel for the Crown
Christopher O'Connor — counsel for the accused Flores and Criado
Judgment
FAIRGRIEVE J.:
Introduction
[1] This case, unfortunately, requires consideration of the principles stated recently by the Supreme Court of Canada in R. v. Anthony-Cook, 2016 SCC 43, 32 C.R. (7th) 1, governing the circumstances where a departure from a joint sentencing submission can be justified.
The Guilty Pleas
[2] On January 26, 2017, both Mr. Flores and Mr. Criado elected to be tried in the Ontario Court of Justice and pleaded guilty to charges of "theft over," relating to the theft of $64,000 worth of jewelry from a jewelry store in Toronto on December 12, 2016, and to "mischief under," relating to breaking the store's display window in order to steal the jewelry.
[3] Mr. O'Connor appeared as counsel for both accused. Defence counsel provided assurances that there was no concern as to any potential conflict of interest on his part arising from representing both accused, since, he stated, the theft was a joint enterprise and they were both in the same situation so far as sentencing was concerned. Crown counsel agreed that he had no concern about any conflict on defence counsel's part.
[4] While charged with the same offences, the Crown proceeded on separate informations charging each accused individually. It was accepted that the case required separate proceedings with respect to each person. A separate plea inquiry, with the assistance of the Spanish interpreter, was conducted in each case prior to the arraignment of the individual accused.
[5] After the plea inquiry was made in relation to Mr. Flores, he entered his guilty pleas, and the facts concerning the two offences were read in by the Crown. In the case of Mr. Flores, additional facts were also read in with respect to two other thefts that he committed with another person, not Mr. Criado, in November and earlier in December 2016, prior to the date of the jewelry store theft. It was agreed that these additional thefts should be taken into account as aggravating facts in relation to Mr. Flores's sentencing.
[6] The s. 606 plea comprehension inquiry was then conducted in relation to Mr. Criado. He, too, acknowledged that he understood the requirements of a valid guilty plea. Mr. Criado then pleaded guilty to the two charges on which the Crown proceeded and accepted the facts as just read in concerning the jewelry store theft. It should be noted that when asked if there was anything in the facts read in by the Crown that he did not admit were accurate, Mr. Criado stated initially (through the Spanish interpreter) that he did not understand the question. When it was repeated, he made it clear that his reply, "No, no, no. No, Your Honour," was in response to being asked whether he disputed anything the Crown had said about the circumstances surrounding the theft from the jewelry store.
The Facts Surrounding the Jewelry Store Theft
[7] The facts read in by the Crown were that on December 12, 2016, Mr. Flores and Mr. Criado, along with a third man (alleged by the Crown to be a person named Mr. de la Fuente) went to the Diamond Design store located in the Sheraton Hotel at 123 Queen St. West, Toronto. The store was downstairs in the hotel by the "PATH," the underground pedestrian walkway that links several downtown blocks. The store was open for business at the time. Using the pronoun "they", the Crown stated that "they" smashed the display window and removed two bracelets and a necklace worth a total of $64,000.
[8] All three men then made their escape together out of the building onto Richmond Street, where a surveillance camera caught them driving westbound in the same silver Honda that surveillance had also captured on November 20, after one of the additional thefts committed by Mr. Flores and Mr. de la Fuente at the Sheraton Hotel.
[9] The Diamond Design theft itself was also caught on video surveillance, which allowed the police to identify the two co-accused here as participants in the crime. They were ultimately arrested on January 10, 2017, when they were both already in custody. Crown counsel indicated that the police had not informed him of which person actually smashed the window and which person or persons actually grabbed the jewelry.
[10] Each of the accused personally agreed with the facts on which the Crown relied.
[11] It was agreed, as well, that the day before the guilty pleas were entered on January 26, 2017, defence counsel Mr. O'Connor had turned over to Detective Constable Jeffrey Chahal, 52 Division Major Crime Unit, the stolen jewelry. The property then was available to be returned to the Diamond Design store.
The Facts of Two Earlier Thefts Admitted by Mr. Flores
[12] In addition, as aggravating facts to be considered on sentencing only with respect to Mr. Flores, it was admitted that on November 20, 2016, he and the person alleged to be Mr. de la Fuente observed a woman having coffee at the Link Café in the same Sheraton Hotel. She had her purse on the floor beside her. Mr. Flores and Mr. de la Fuente were captured on a surveillance camera as one of the men distracted her by asking her a question, while the other man covered her purse with his coat and picked it up.
[13] Both men then exited the hotel together onto Queen St. West where, again captured by surveillance cameras, they crossed the street to the silver Honda on the north side of the street and drove away westbound.
[14] There was no recovery of the designer purse or a designer wallet inside it, which were said to have a value of $11,000. The Crown also stated that one of the credit cards that had been in the wallet was used at some later time in two separate fraudulent transactions at a McDonald's, though he was unable to say by whom.
[15] The next theft committed by Mr. Flores and Mr. de la Fuente, according to the Crown, occurred on December 7, 2016, at the Westin Harbour Hotel. A person named Yang Yang was sitting in the lobby with his laptop in a bag on the floor beside him. "They" took the bag, concealed it in a coat and left the hotel together to make good their escape. The laptop, it was stated, was worth $250, and was not recovered. Mr. O'Connor indicated, however, that restitution in the amount of $250 would be made to Mr. Yang, since he was giving that sum to Det. Chahal for payment over to the victim. Again, the theft was captured by a security camera in the hotel lobby.
[16] Mr. Flores admitted the facts concerning both of these thefts as well, acknowledging that they could be taken into account as aggravating factors on the sentencing for the jewelry store theft.
The Commencement of the Sentencing Proceedings
[17] Crown counsel started his submissions by stating that the Crown was not alleging any prior criminal record for either accused.
[18] Crown counsel then stated the following:
In terms of the joint submission, … my friend and I are joining essentially at a time served disposition and 12 months of probation. There are fairly unique reasons for that, in addition to the recovery of the property, given their date of arrest, they have … 17 real days – so, on enhanced credit, I'm content that that be 26 days of pre-trial custody. We're jointly requesting one further day and 12 months of probation.
In addition to the early guilty pleas, the recovery of most of the property, both individuals are on Immigration holds. We expect that both individuals will be deported in fairly short order. My understanding is that Mr. Criado will consent to his deportation and expects to go back to Chile soon, and Mr. Flores has been in Canada for longer and wishes to stay, but ultimately is in dire immigration circumstances and expects that he will likely be deported, in any event.
So, … in the absence of a criminal record, the efforts that both individuals went to when they were in custody to recover the jewelry and pay restitution on what I understand are very limited means with respect to Mr. Flores for the laptop. The fact that they are entering early guilty pleas, consideration of their pre-trial custody time, the immigration consequence…
[19] I interrupted Crown counsel at that point to indicate that I was aware of the Supreme Court's decision in R. v. Anthony-Cook, supra, but that given the value of the stolen property ($64,000), the fact that the two co-accused and another person had acted in concert to commit the theft, and, in Mr. Flores's case, the other two thefts that preceded it, I was "troubled" by the joint submission. I commented that it might ignore the public interest in deterring such offences. I then stated: "I think I have to put you on notice, so you can prepare submissions in support of the joint submission. This really is a case requiring a pre-sentence report, it seems to me." I stated that a pre-sentence report would assist in deciding whether there were exceptional circumstances to justify such an unusually lenient disposition.
[20] Mr. O'Connor replied by asking that the pleas be struck, stating that he had consulted with the Detective and Crown Attorney over the preceding two weeks that led to the return of the jewelry, and that the victims had no issue with respect to the proposed resolution.
[21] After a protracted exchange, it became apparent that the Crown had relied on defence counsel for information concerning the accused's personal circumstances. The Crown did not know why the accused were already in custody when they were arrested on January 10, and Mr. O'Connor took the position that the reason was irrelevant to this sentencing. Defence counsel had earlier made a passing reference to their having been arrested on December 22, yet later referred to both accused as having no prior record. The Crown was obviously unaware that they had both been found guilty of a theft in York Region committed by them on December 22, and did not know that that Mr. Flores was in fact serving a 60-day jail term when he was arrested on the present jewelry store theft charge.
[22] With respect to the weight to be given to the guilty pleas as a mitigating factor, the Crown stated that "there are fairly clear pictures of the individuals at the Sheraton Hotel and the different areas," and that the basis of the evidence concerning identification of the thieves was the videos and owner registration of the Honda in question. At the same time, he stated that there might have been "triable issues."
[23] Defence counsel stated the following:
So why is it exceptional, then? That it's a property offence where all the property was recovered, my clients have no criminal records, they've been here, one of them, a week prior to his arrest, why is there anything exceptional with what's being proposed?
Mr. O'Connor took the position that a pre-sentence report would serve no purpose and be of no benefit. He further stated that he would seek a prohibition order from the Superior Court to prevent the sentencing from proceeding any further.
[24] Pre-sentence reports were ordered for each accused. Both were remanded for the minimum 3-week period required by the probation office to prepare such pre-sentence reports. Both remained subject to the "immigration holds" during that period.
[25] On February 16, 2017, the date fixed for sentencing, the pre-sentence reports were filed. Mr. O'Connor stated that all of the information contained in the respective pre-sentence reports was accurate.
[26] Defence counsel renewed his application to have me recuse myself on the grounds that I had lost jurisdiction by ordering pre-sentence reports prior to hearing defence counsel's submissions, and by inadvertently misspeaking when I referred to the jewelry store theft as a robbery, thereby giving rise to a reasonable apprehension of bias on my part. In his written submissions, he also repeated his position that his clients' guilty pleas should be struck.
[27] I am satisfied that the application for me to disqualify myself has no merit and should be dismissed. In my view, neither ordering a pre-sentence report nor a slip of the tongue of the kind admittedly made results in any demonstration of bias or appearance of bias or of any other loss of jurisdiction. In my view, it is apparent that a sentencing judge has responsibilities to discharge that might sometimes be unpleasant and might not always find favour with all counsel involved in a case. That hardly amounts, I am certain, to a compelling reason for a court to disqualify itself or to abdicate its judicial function.
[28] Similarly, I do not think that the circumstances justify allowing the withdrawal of the guilty pleas by either accused at this stage. I am quite sure that any other judge would have expressed the same concerns with respect to the joint submission made here, particularly after it became apparent that it had been based on serious factual omissions and misleading information. Moreover, the facts of the offences were already clearly admitted by both accused, represented by counsel, after plea comprehension inquiries. There is no lingering concern that there were potential defences available or that the Crown's identification evidence might have proved inadequate. Defence counsel never took that position, in any event, but continued to insist that the circumstances of the case required the immediate imposition of sentence to allow both men to be quickly deported.
Mr. Flores's Pre-Sentence Report
[29] Jose Luis Pitot Flores was born in Peru on November 1, 1990, so he is now 26 years old. He came with his sisters to Canada at the end of 2007 as a permanent resident to join his mother and his then stepfather already here. His own father in Peru was an abusive alcoholic who spent much of Mr. Flores's childhood incarcerated.
[30] Mr. Flores is still single, but he has a 4-year old son who is in the custody of the accused's mother in Toronto. He terminated his relationship with the boy's mother, who herself had alcohol and cocaine issues, in 2014. Mr. Flores is very close to his mother, and his separation from her and his son, if he is deported to Peru, will be very difficult for all of them.
[31] The probation officer explained that the Immigration and Refugee Board will conduct an admissibility hearing to determine whether Mr. Flores could remain in Canada or have to return to Peru. His criminal record and the present theft conviction will likely result in a finding that he is inadmissible due to "criminality." He admitted to the probation officer that he did not consider his status as a permanent resident when he committed the offences. While he stated in court that he would consent to being returned to Peru, he has maintained no family connections there and told the probation officer that he would likely resort to crime there to support his cocaine addiction.
[32] Although Mr. Flores came to this country when he was 17, he made little progress learning English or with his education. He has only a sporadic and unstable employment history, with social assistance providing his primary source of income.
[33] Mr. Flores told the probation officer that he began using alcohol and cocaine in Peru prior to coming to Canada, and has had a serious drug addiction for a number of years. Since arriving in Canada, he has consistently used cocaine, as much as $200 worth every 2 or 3 days, and drinks alcohol, he said, to cope with stress and feeling overwhelmed. Mr. Flores also admitted that he uses heroin once a month or so, but does not regard it as a concern. According to the pre-sentence report, Mr. Flores is a polite and co-operative person, but justified his crimes on the basis that he needs up to $1600 a month to fund his alcohol and drug habits.
[34] Mr. Flores had started a substance abuse program with the John Howard Society, attending sessions on December 9 and 16, 2016, before his present incarceration interfered. It is to be observed, however, that he continued to commit thefts, including the jewelry store theft on December 12, after he commenced his counselling.
[35] Contrary to counsel's earlier statement that he had no prior criminal record, Mr. Flores admitted the following convictions and sentences, all in Toronto apart from the last entry from Newmarket on December 30, 2016:
| Date | Offence | Sentence |
|---|---|---|
| Nov 17, 2010 | Breach recognizance | 14 days jail (after 5 days custody) |
| Dec 22, 2010 | Breach recognizance | 30 days intermittent & probation |
| Feb 17, 2011 | Assault | susp sent & probation 12 mos. |
| June 7, 2011 | Theft Under; Possession Ppty Under | 1 day jail (after 6 days custody) |
| June 17, 2011 | Breach recognizance X2 | susp sent & prob 2 yrs (6 days cust) |
| Jan 31, 2013 | Breach recognizance | 15 days consec to sent being served |
| Dec 30, 2016 | Theft Under; Breach probation | 60 days jail (after credit for 15 days) |
It was apparent that the record in the pre-sentence report was still incomplete, since there was no entry indicating what jail term Mr. Flores was serving on January 31, 2013 when a consecutive jail term was imposed, and no entries to account for the probation officer's statement at p. 6 of the pre-sentence report that Mr. Flores has been supervised in the community on 4 separate probation orders, the most recent of which expired on January 26, 2017.
[36] It also became apparent, then, that Mr. Flores committed the three thefts he admitted here, including the $64,000 jewelry store theft, while he was already on probation. Similarly, the pre-sentence report disclosed that he was serving the 60-day jail term imposed in Newmarket for theft and breach of probation when he entered his guilty pleas here, a fact not known to the Crown or the court at the time.
Mr. Criado's Pre-Sentence Report
[37] Mr. Criado's situation was significantly different from that of his co-accused. Now 40, he resides in Santiago, Chile. He came to Toronto on December 8, 2016 en route to a golf tournament in New Zealand. He stayed on in Toronto, however, when his travelling companion was arrested at Pearson Airport on a warrant and Mr. Criado decided not to fly on to Auckland.
[38] Mr. Criado pleaded guilty in Newmarket on December 30, 2016 to two counts of theft, for which he had been arrested a week earlier, and he received a conditional discharge with a non-reporting probation order for 12 months. An Order for Detention was made under s. 55(2) of the Immigration and Refugee Protection Act on the same date he was arrested. An Exclusion Order, dated January 30, 2017, issued by the Immigration Division of the Immigration and Refugee Board, to which Mr. Criado consented, was filed as an exhibit on the sentencing.
[39] Mr. Criado is employed as a golf caddy and instructor in Chile. Supplementing the information in the pre-sentence report, he stated in court that his common law wife is now pregnant as a result of a successful in vitro fertilization procedure. He is anxious to return home.
[40] Mr. Criado admitted to the probation officer that in 2011 he had a similar experience in Singapore. At that time, he was expelled after serving 8 months of a one-year jail term for thefts he committed while visiting Singapore for a golf tournament.
[41] Like Mr. Flores, Mr. Criado has a history of drug abuse. He began using cocaine on a daily basis when he was 15. He has one prior conviction in Chile for drug possession and briefly attended an outpatient substance abuse program that proved unsuccessful.
The Anthony-Cook Principles
[42] There was no dispute that the leading case governing joint submissions at a sentencing hearing is the recent judgment of the Supreme Court of Canada in R. v. Anthony-Cook, supra, released on October 21, 2016. In that case, for a unanimous 7-judge Court, Moldaver J. stated at para. 25:
It is an accepted and entirely desirable practice for Crown and defence counsel to agree to a joint submission in exchange for a plea of guilty. Agreements of this nature are commonplace and vitally important to the well-being of our criminal justice system, as well as our justice system at large. Generally, such agreements are unexceptional and they are readily approved by trial judges without any difficulty. Occasionally, however, a joint submission may appear to be unduly lenient, or perhaps unduly harsh, and trial judges are not obliged to go along with them (Criminal Code, R.S.C. 1985, c. C-46, s. 606(1.1)(b)(iii)). In such cases, trial judges need a test against which to measure the acceptability of the joint submission. The question is: What test?
[43] Justice Moldaver answered that question at paras. 32 to 33 of his reasons under the heading "The Proper Test":
Under the public interest test, a trial judge should not depart from a joint submission 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 [R. v. Druken, 2006 NLCA 67], at para. 29, the court 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. O. (B.J.), 2010 NLCA 19, at para 56, when assessing a joint submission, trial judges should "avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts."
[44] Moldaver J. went on to identify the benefits that the acceptance of joint submissions brings, including the certainty of outcomes for both parties, leniency for an accused giving up his right to trial, saving the expense and inconvenience to victims and witnesses at a trial, and the efficient use of court resources. At paras. 42 to 44, Moldaver J. stated:
Hence, the importance of trial judges exhibiting restraint, rejecting joint submissions only where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system. A lower threshold than this would cast the efficacy of resolution discussions into too great a degree of uncertainty. The public interest test ensures that these resolution agreements are afforded a high degree of certainty.
At the same time, this test also recognizes that certainty of outcome is not "the ultimate goal of the sentencing process. Certainty must yield where the harm caused by accepting the joint submission is beyond the value gained by promoting certainty of result" (R. v. DeSousa, 2012 ONCA 254, per Doherty J.A., at para. 22).
Finally, I note that a high threshold for departing from joint submissions is not only necessary to obtain all the benefits of joint submissions, it is appropriate. Crown and defence counsel are well placed to arrive at a joint submission that reflects the interests of both the public and the accused (Martin Committee Report, at p. 287). As a rule, they will be highly knowledgeable about the circumstances of the offender and the offence and the strengths and weaknesses of their respective positions. The Crown is charged with representing the community's interest in seeing that justice is done (R. v. Power, [1994] 1 S.C.R. 601 at p. 616). Defence counsel is required to act in the accused's best interests, which includes ensuring that the accused's plea is voluntary and informed (see, for example, Law Society of British Columbia, Code of Professional Conduct for British Columbia (online), Rule 5.1-8. And both counsel are bound professionally and ethically not to mislead the court (ibid, Rule 2.1-2(c)). In short, they are entirely capable of arriving at resolutions that are fair and consistent with the public interest (Martin Committee Report, at p. 287).
[45] Under the heading "Guidance for Trial Judges," Moldaver J. set out specific considerations a sentencing judge hearing a joint submission should bear in mind: an omission should be regarded as something considered but rejected by counsel; the same public interest test applies to "jumping" or "undercutting" a joint submission; trial judges should be informed of the circumstances leading to the joint submission, with counsel required to "amply justify their position on the facts of the case as presented in court" to allow the judge "a proper basis upon which to determine whether the joint submission should be accepted"; the judge should notify counsel of his or her concerns, possibly allowing a guilty plea to be withdrawn in certain circumstances; and, finally, trial judges departing from a joint submission should explain why the proposed sentence was unacceptable and provide reasons that facilitate appellate review.
Application of the Public Interest Test
[46] In the case of each of the accused, I am satisfied that simply acceding to the joint submission for a "time served" disposition, with the expectation that he would be quickly deported, would indeed bring the administration of justice into disrepute. Such a disposition would ignore the need for some degree of denunciation and general deterrence in the sentences imposed. It would ignore the obvious aggravating factors in the circumstances surrounding the theft they committed. It would also disregard the personal circumstances of each accused that, once disclosed by the pre-sentence reports, do not support an exceptionally lenient sentence; indeed, quite the contrary.
[47] While I do not overlook the important role of plea negotiations and joint submissions in the overall functioning of criminal courts, the marked departure from the expectations an informed member of the public would reasonably have in a case like this, as well as the absence of any articulated justification provided by counsel to support such a non-custodial disposition, would warrant the conclusion that the court had failed to do its job. The community would be entitled to conclude that the judge had indeed been asleep at the switch. Ultimately, I think, that perception could only damage the repute of the judicial system.
[48] Crown counsel explained his participation in the joint submission by pointing to the return of the stolen jewelry worth $64,000, the public expense of incarceration that would be saved if the accused were deported, and the absence of any complaint from the victims with respect to the proposed disposition. None of those considerations should be disregarded, in my view, but they fail to justify the marked departure from the generally recognized range of sentence applicable to this kind of case, and they fail to reflect any effort to conform with the sentencing principles stated in the Criminal Code and appellate case law.
[49] While "theft over" is undoubtedly one of those offences that can vary greatly in gravity and produce widely disparate sentences, I think there is a generally held expectation concerning the theft of $64,000 worth of jewelry committed by three men acting in concert who, executing an apparent plan (albeit one lacking in particular sophistication), smash a jewelry store window and steal diamond bracelets and a necklace, fleeing afterwards to a car they had to make good their escape.
[50] The following statement is made in Ruby, Chan and Hasan, Sentencing (8th ed., 2012), at p. 998 et seq.:
For theft over cases generally, the range appears to be six months to three years, though thefts involving substantial amounts … will extend the sentence, and courts are more willing to go below the range than for thefts in positions of trust. In addition to the amount involved, factors most often focused on are the prior record (particularly of offences related to property), whether the offence was committed while on parole, whether the theft was calculated and well planned, and youth. The existence of planning or premeditation will tend to increase a sentence. Conversely, an act that was spontaneous is deemed less severe. … Lower moral blameworthiness can also be attributed to an offender who has resorted to theft to fund his alcohol or drug addiction or when the theft is motivated by a rather innocuous purpose.
[51] In circumstances where Crown counsel indicates that he was unaware of the antecedents or personal circumstances of the accused, it becomes more difficult to view a joint submission as a "considered agreement" by counsel. Similarly, I appreciate that counsel's participation in guilty pleas and joint sentencing submissions in provincial court cases do not necessarily fit the paradigm relevant to superior trial or appellate courts. Joint submissions here are often hastily arranged, based on only partial information, and without preparation or careful scrutiny of the available evidence, much less consideration of any relevant case law.
[52] There is no doubt that Crowns are under pressure to dispose of their cases in a way that encourages efficiency in the court system. It was recognized as a legitimate concern by Justice Moldaver in Anthony-Cook. At the same time, I think it is important that Crown counsel remain conscious of the fact that their sentencing positions are still subject to potential judicial review, at least to the extent of applying the public interest test, in the same way that trial judges know everything they do is subject to review by an appellate court.
[53] Reasonable people can, of course, disagree about the significance of particular factors. I might think, for example, that the return of the stolen property was a significant mitigating factor, but not conclude that it should outweigh every other consideration and dictate the sentencing option most suitable to the case, having regard to all of the circumstances. I do not find it surprising that Diamond Design was more interested in recovering its property than in pursuing particular consequences for the offenders or maintaining the repute of the justice system. Courts, however, have to be concerned as well with other jewelry stores carrying on business in the community and with deterring other potential thieves.
[54] Similarly, while the cost to the public of a custodial sentence should not be overlooked, it does not necessarily follow that sending a foreign visitor home after he is convicted of a serious crime committed in this country will normally be sufficient. Justice sometimes requires the expense to the public of incarceration, for reasons, I am sure, the public understands and supports.
[55] When a joint submission raises concerns that it is unduly lenient, I do not think it is fair to expect that defence counsel should have to explain his or her participation or willingness to take advantage of what the Crown was prepared to accept. As long as the lawyer has acted ethically and not actively misled the prosecutor or court, I do not think he or she should be required to volunteer information that does not advance the client's position. Having said that, however, I do not think it is open to counsel to refuse to answer a direct question from the court on the basis that it is irrelevant, nor is he entitled to misstate facts within his knowledge.
[56] I appreciate that I can properly depart from a joint submission only if it would be contrary to the public interest, in the sense Moldaver J. explained. Unfortunately, I have concluded that the proposed "time served" disposition would bring the administration of justice into disrepute, particularly given the benefit of the information obtained from the pre-sentence reports that was not available when the guilty pleas were entered. Any reasonable member of the public would rightly conclude, in my view, that the court had ceased to function properly, if a jewelry store theft of the kind committed by Mr. Flores and Mr. Criado, taking in account their personal circumstances, did not result in a sentence involving further custody. If it were simply a matter of some slight disagreement as to quantum, or "mere tinkering" with counsel's recommendation, I would be obliged to accede to the joint submission, but that is not the case, in my view.
The Collateral Immigration Consequences
[57] In R. v. Pham, 2013 SCC 15, 99 C.R. (4th) 219, Wagner J., for a unanimous 7-judge court, outlined the sentencing provisions in the Criminal Code and the responsibility of trial judges to impose fit sentences. At para. 17, he expressed agreement with the statements made by Moldaver J.A., as he then was, in R. v. Badhwar, 2011 ONCA 266, at paras 43 and 45:
… while the deportation consequences of the sentence may be a proper factor to consider in determining the appropriate sentence in certain cases, immigration consequences cannot take a sentence out of the appropriate range. …
No matter how one chooses to come at the issue, the bottom line remains the same. Courts ought not to be imposing inadequate or artificial sentences at all, let alone for the purpose of circumventing Parliament's will on matters of immigration.…
See also R. v. Mohammed, 2016 ONCA 678.
[58] The same statement of principle applies, it seems clear, when what is at issue is not avoiding an adverse immigration consequence for an offender wishing to remain in Canada, but also for offenders willing to accept deportation but wanting to use their removal from this country as a justification for avoiding the fit sentence that would otherwise be required.
The Appropriate Sentence for Jose Luis Pitot Flores
[59] The obvious aggravating factors with respect to Mr. Flores include the following:
the value of the property he stole ($64,000 from the jewelry store, after stealing property valued at $11,000 from one victim and property worth $250 from the other, in the two earlier thefts he admitted here for sentencing purposes);
the vulnerable nature of the victims, in the sense that jewelry stores openly display expensive items in shop windows, and people in hotels naturally have purses or laptop cases in their possession;
the fact that he acted in concert with another thief or thieves on each occasion;
the fact that all three thefts involved apparent premeditation rather than impulsive acts, with chosen victims and a getaway vehicle available;
his related criminal record, including multiple theft convictions resulting in prior jail terms that evidently provided inadequate individual deterrence, as well as a further theft in Newmarket subsequent to the thefts here in Toronto;
the fact that he was on probation at the time of the offences, apparently for other property offences;
the likelihood that he will continue to commit thefts, given his so far untreated, expensive cocaine addiction;
his failure to respond to previous community supervision and rehabilitative efforts.
[60] The mitigating factors to be taken into account in Mr. Flores's case include the following:
his guilty pleas;
his apparent assistance in the recovery of the stolen jewelry worth $64,000;
the potential adverse immigration consequences for him;
his cocaine addiction, in that supporting his drug habit was the motivation for the thefts, rather than simply greed;
his having been in custody with respect to other matters since December 22, 2016, although the pre-sentence custody attributable to the theft for which he is to be sentenced commenced only upon the expiry of the 60-day jail term imposed in Newmarket on December 30, 2016. Assuming he served 40 actual days of that sentence, he has been in custody, albeit subject to an immigration "hold," since February 7, 2017. With enhanced credit, the 17 actual days should be regarded as the equivalent of a sentence of almost one month.
[61] It strikes me that Mr. Flores's case is considerably more complicated than that of his co-accused. While it was stated at the time of the guilty pleas that there was no basis for distinguishing between the two men, given, it was erroneously stated, that neither had a prior record, it became apparent, after the pre-sentence reports were received, that there were significant differences between them.
[62] Mr. Flores is still young, having recently turned 26. He has lived in Canada since he was 17 as a permanent resident. His deportation to Peru seems inevitable, given the almost certain conclusion by the Immigration Board that he is inadmissible under s. 36 of the Immigration and Refugee Protection Act because of criminality. That is undoubtedly a tragic consequence of this offence for him and his family. It does not, however, relieve the court of its responsibility to impose a fit sentence, proportionate to the gravity of his crime and his degree of moral responsibility.
[63] I would have thought that, without the ultimately successful effort to return the stolen jewelry to its owner, Mr. Flores would normally have been facing a reformatory sentence of about 12 months, even considering a guilty plea and the position taken by the Crown concerning sentence. Given all of the circumstances, including his participation in the recovery of most of the stolen property, that period should be reduced to 9 months. Giving credit for one month of pre-sentence custody, a sentence of 8 months in a reformatory is required. That makes the joint submission, in my view, a marked departure from an acceptably lenient sentence and it requires a rejection of the joint submission.
[64] Mr. Flores is sentenced, then, to 8 months in a reformatory for the theft over. I will recommend that he serve his sentence at a place where treatment for his substance abuse is available, although I understand that a placement may be more difficult because he does not speak English fluently. The sentence for the mischief offence relating to breaking the jewelry store window, while somewhat beside the point, will be 30 days in jail, to be served concurrently with the sentence imposed for the theft over.
[65] The victim surcharge for each of the indictable offences is fixed by statute at $200, making a total of $400. He will have 5 years to pay. I think it safe to say that no one expects any enforcement efforts to be made to collect it.
The Appropriate Sentence for Christian Eduardo Criado Ordonez
[66] In addition to his guilty pleas, as a mitigating factor on sentencing, Mr. Criado can also rely on the pre-sentence custody he has served since he was arrested for these offences on January 10, 2017. Giving enhanced credit, the 6 weeks until today's date can be regarded as the equivalent of 9 weeks, which will be deducted from the appropriate sentence.
[67] For the reasons already stated, participation with others in a planned jewelry store theft where $64,000 worth of diamond jewelry is stolen is regarded as a serious crime. Denunciation and deterrence are the primary considerations, in my view. The eventual recovery of the property is a significant factor to be taken into account, but does not represent, I think, a "get out of jail and go home" card, as though a criminal court operates like a board game. Visitors to this country are subject to Canadian criminal law in the same way that everyone else is. In fact, there is an obvious public interest in deterring visits by people who intend to commit crimes here.
[68] Mr. Criado's situation is aggravated by the fact that he was found guilty of two other thefts he committed in York Region following the theft in Toronto. They did not lead, however, to any criminal record in this country, and this should be regarded as a first offence for sentencing purposes. At the same time, his situation is made somewhat less sympathetic by the fact that he evidently had a similar experience 5 years ago in Singapore, when he committed a theft and then served 8 months of a 12-month sentence there before being deported.
[69] Mr. Criado's cocaine addiction is definitely a Chilean problem, in my opinion, and his rehabilitation in that regard should not be a burden on Canadian taxpayers.
[70] I am also aware that Mr. Criado has consented to his deportation and that the Parole Board may grant early parole to facilitate his removal from Canada.
[71] I would have thought that a 6-month jail term would normally be considered at the bottom of the appropriate sentencing range for a theft of this nature. Given Mr. Criado's circumstances, making the appropriate deduction for pre-sentence custody and his imminent deportation, he is sentenced to 90 days in jail for the theft over and 7 days, concurrent, for the broken window.
[72] I should add, I think, that I still regard this admittedly lenient sentence as fundamentally different in nature from the "time served – go home" joint submission that was made. The difference justifies, in my view, a rejection of that joint submission on the basis of the public interest test and the imposition of a jail term.
[73] The victim surcharge is fixed at $200 for each indictable offence. While I assume, if he was travelling to New Zealand for a golf tournament, that he is not destitute, he can have 12 months to pay the victim surcharge.
Disposition
[74] Mr. Pitot Flores is sentenced to a total of 8 months in a reformatory.
[75] Mr. Criado is sentenced to 90 days in jail.
Released: February 23, 2017
Signed: Justice David A. Fairgrieve