Her Majesty the Queen v. O'Quinn et al. [Indexed as: R. v. O'Quinn]

59 O.R. (3d) 321

[2002] O.J. No. 2016

Docket Nos. C37300 and C37301

Court of Appeal for Ontario

McMurtry C.J.O., Cronk and Gillese JJ.A.

May 22, 2002

Criminal law -- Sentencing -- Plea negotiations -- Two accused charged with aggravated assault -- Trial judge stating in pre-trial discussion with counsel in chambers that he would impose sentence of between 12 and 15 months' imprisonment plus three years' probation on guilty plea unless pre-sentence report negative -- Pre-sentence report positive in relation to both accused -- Accused pleading guilty -- Neither counsel making any reference during sentencing submissions to prior discussions in chambers -- Trial judge sentencing each accused to term of imprisonment of two years less one day plus three years' probation -- Counsel meeting with trial judge in chambers after he was functus -- Trial judge then stating that he had forgotten his earlier position -- Sentence of two years less a day gives rise to appearance of unfairness in circumstances -- Sentence appeal allowed and sentence varied to 15 months' imprisonment plus three years' probation.

The two appellants and two other individuals were charged with aggravated assault. In the course of pre-trial discussions in chambers, the trial judge stated that, on a guilty plea, he would impose a sentence of between 12 to 15 months' imprisonment plus three years' probation unless the pre- sentence report was negative. The pre-sentence report was positive in relation to both appellants. The appellants pleaded guilty. Neither counsel made any submissions on the record referring to pre-trial discussions in chambers. The trial judge sentenced each appellant to a term of imprisonment of two years less a day followed by three years' probation. At a meeting with counsel in chambers following the sentencing, the trial judge stated that he had forgotten his earlier position and expressed regret that counsel had not reminded him of it. The appellants appealed.

Held, the appeal should be allowed.

Per McMurtry C.J.O. (Cronk J.A. concurring): The essence of the discussions that took place in chambers should have been placed on the record at the time that the guilty pleas were entered. In the circumstances, there was an appearance of unfairness in relation to the imposition of the sentence of two years less a day plus three years' probation given the fact that the appellants would have been advised of the range of sentence suggested earlier by the sentencing judge. The sentencing judge was entitled to change his mind if additional relevant facts were brought to his attention before sentencing, but this was not the situation here as he had simply forgotten his earlier comments. The sentence should be varied to 15 months' imprisonment plus three years' probation.

Per Gillese J.A. (dissenting): It was not entirely clear what happened at the pre-trial meeting. The trial judge's opinion as to sentence was apparently conditional upon a collective plea by all four accused, and only the two appellants pleaded guilty. The opinion was expressed in the absence of full information. The appellants did not suggest that their guilty pleas were entered in reliance on the pre-trial discussion or that the sentence was unfit. In the circumstances, fairness considerations did not require a reduction in sentence.

APPEAL by an accused from a sentence for aggravated assault.

Timothy E. Breen, for appellants. Nadia Thomas, for respondent.

[1] MCMURTRY C.J.O. (CRONK J.A. concurring): -- This is an appeal from the sentence imposed on each of the appellants by the Honourable Mr. Justice Culver on September 17, 2001 of two years less one day imprisonment, plus three years' probation for aggravated assault.

[2] The appeal is related to a statement made by Justice Culver in chambers that, in the absence of a negative pre- sentence report, he would impose a sentence of 12 to 15 months' imprisonment with three years' probation. It is common ground that the pre-sentence report was in fact positive in relation to the appellants.

Facts

1. Circumstances of the offence

[3] The appellants were two of four individuals who assaulted the male victim in a poolroom which was part of a bar. The victim was pushed against a wall and struck over the head with a beer bottle. He was then dragged into another room where he was punched, kicked and struck with a beer bottle. The victim was rendered unconscious and remained in a coma for a period of time. He suffered neurological injuries and required physical and speech therapy. At the time of the sentencing, the victim had made a good recovery.

[4] The appellant O'Quinn was 18 years old at the time of the offence and had a youth record. The appellant Taylor was 19 years old at the time of the offence and also had a youth record.

[5] It is not submitted on behalf of the appellants that the sentence imposed would have been unfit in the absence of the comments made by Justice Culver in chambers.

2. Plea negotiations

[6] An affidavit of Deborah Loft, trial counsel for the appellant Taylor, was filed on the appeal. Her affidavit stated that after being committed for trial following a preliminary inquiry before Justice Culver, counsel met with Justice Culver in chambers for "the purpose of attempting to resolve the matter". Crown counsel provided an agreed statement of fact which was accepted by all defence counsel. Crown counsel advised that upon a plea of guilty, he would seek a sentence of two years' imprisonment in addition to the pre-trial custody of approximately six months.

[7] The affidavit of Ms. Loft goes on to state that it was the position of the defence that in light of the youth of the appellants a sentence of 8 to 12 months' imprisonment would be appropriate. Justice Culver participated in the discussions and stated in "unequivocal terms" that on a guilty plea he would impose a sentence of between 12 to 15 months' imprisonment with three years' probation. The affidavit of Ms. Loft also stated that Justice Culver pressed the caveat that his position on sentence would only change if the pre-sentence report revealed that "the accused was a psychopath" or "had a history of inflicting cruelty on animals".

[8] A new information was prepared and on April 9, 2001 the appellants entered a plea of guilty before Justice Culver. A pre-sentence report was ordered and the sentencing took place on September 17, 2001.

[9] After the accused were sentenced to two years less a day and three years' probation, counsel for the accused requested a meeting with Justice Culver which took place in the presence of Crown counsel. Justice Culver stated to counsel that he did not recall making a statement that in the absence of a negative pre-sentence report he would impose a sentence of between 12 to 15 months. The affidavit of Ms. Loft also stated that "after all counsel confirmed that he had taken such a position, Justice Culver indicated that he had made a mistake and expressed regret that counsel did not remind him of his earlier position."

[10] The affidavit filed by Crown counsel stated that he had consistently taken the position that the appropriate sentence was two years' incarceration in addition to the pre-trial custody served. Crown counsel also stated that his recollection was that Justice Culver had given the range of 12 to 15 months on the understanding that all four accused were to enter guilty pleas and that a pre-sentence report had to be prepared.

[11] All counsel agreed that Justice Culver was functus at the time that the meeting took place in his chambers after the sentencing.

Conclusion

[12] It would appear that the availability of the pre- sentence report did not influence the sentencing judge negatively as it was positive in relation to the two appellants.

[13] We are of the view that the Crown's understanding that all four accused were to enter guilty pleas should not be relevant to the appropriate sentence for the two appellants.

[14] In our view, the essence of the discussions that took place in chambers should have been placed on the record at the time that the pleas of guilty were entered. It is very important for the integrity of the administration of justice that discussions of this nature in chambers be a matter of public record. As well as apprising the public of the substance of these discussions, situations as existed here would be avoided.

[15] In the circumstances, we are concerned that there is an appearance of unfairness in relation to the imposition of the sentence of two years less a day plus three years' probation given the fact that the appellants would have been advised of the range of sentence suggested earlier by the sentencing judge. The sentencing judge was, of course, entitled to change his mind if additional relevant facts had been brought to his attention before sentencing but this was not the situation here as he had simply forgotten his earlier comments.

[16] We therefore conclude that leave to appeal sentence be granted, that the appeal be allowed and the sentence varied to one of 15 months plus three years' probation.

[17] GILLESE J.A. (dissenting): -- With respect, my assessment of the issues differs from that of my colleagues.

[18] The appellants' position is that the failure of the trial judge to sentence the appellants in accordance with the position taken in a pre-trial meeting gives rise to a miscarriage of justice.

[19] The appellants have not suggested that the guilty pleas were entered in reliance on the pre-trial discussion. Nor have they suggested that the sentence is unfit.

[20] It is common ground that at the pre-trial meeting on July 27, 2001, all four accused expressed an interest in obtaining a resolution. The position jointly presented by the accused was that there would be a guilty plea by all four accused to the aggravated assault charge based on an agreed statement of facts. The agreed statement of facts was provided to Justice Culver by the Crown counsel. Crown counsel indicated that he was prepared to lay a new information and have the matter proceed before Justice Culver in the Ontario Court of Justice only if all four accused were to plead guilty. Otherwise, the matter would proceed in the Superior Court of Justice based on the committal.

[21] There is some dispute as to the range of sentence that defence counsel suggested. Crown counsel recalls defence counsel suggesting a range of time served up to nine months. Defence counsel says her position was that a further sentence of eight to 12 months' imprisonment was appropriate.

[22] The position of Crown counsel in the meeting was that a two-year term of incarceration in addition to time served, plus three years' probation, a DNA order and a weapons prohibition was the appropriate sentence.

[23] Crown and defence counsel all sought the same sentence to be imposed on each of the accused.

[24] In the pre-trial meeting, Justice Culver indicated that he would impose a sentence in the range of 12 to 15 months followed by three years' probation but he wanted to see pre- sentence reports on the accused.

[25] Following the pre-trial meeting and while Crown counsel was away from the office, defence counsel representing the appellants approached a different Crown counsel and requested that a new information be laid in the Ontario Court of Justice for their clients. New informations were laid for the two appellants and guilty pleas were entered.

[26] When the original Crown counsel returned, he wrote to all defence counsel reiterating his position that the pre-trial discussion with Justice Culver was premised on the express understanding that there would be a collective plea by all four accused to aggravated assault.

[27] On September 17, 2001, almost two months after the pre- trial discussion, the appellants appeared before Justice Culver for sentencing.

[28] At the sentencing, Crown counsel filed victim impact statements and provided the court with the relevant caselaw. He sought a sentence of two years' incarceration in addition to pre-trial custody.

[29] Defence counsel did not raise the matter of the pre- sentence discussion either in discussion with Crown counsel before the sentencing or during submissions before Justice Culver.

[30] Defence counsel suggested a sentence of 12 months in addition to pre-trial custody.

[31] After hearing submissions, Justice Culver imposed a sentence of two years less a day on each appellant. Taking pre- trial custody into consideration, the equivalent of a 39- month sentence was imposed on each of the appellants.

[32] According to the evidence of the Crown counsel, when counsel met with Justice Culver following the sentencing, Justice Culver appeared surprised by defence counsel's indication that he had previously suggested a range of 12-15 months. Justice Culver sought confirmation of that from Crown counsel; Crown counsel advised that Justice Culver had given that range on the understanding that all four would enter guilty pleas.

[33] Justice Culver indicated that his only recollection of the pre-trial discussion was the suggestion of an unspecified reformatory sentence.

[34] Justice Culver said that in imposing sentence, he had been influenced by a recent analogous case in a neighbouring jurisdiction involving a beating and serious injury to the victim in which a similar sentence had been imposed.

[35] According to Crown counsel, Justice Culver apologized for the misunderstanding but did not acknowledge any error on his part.

[36] The co-accused, Jerry Lockhardt, entered a guilty plea in Superior Court to the aggravated assault and received the equivalent of a 39-month sentence. This was based on a joint submission intended to craft the same sentence as that which was imposed on the appellants.

[37] The remaining co-accused, Daniel Herder, was convicted following trial and received the equivalent of a 37-month sentence. It appears that the intent of the sentencing judge was to impose the same sentence as that received by the appellants and the other co-accused.

[38] In my view, there is some ambiguity about what transpired before Justice Culver at the pre-trial meeting. I find it difficult to accept defence counsel's characterization of the pre-trial discussion as one in which Justice Culver gave an "unequivocal" statement of the sentence he would impose. The opinion expressed as to sentence was conditional upon a collective plea by all four accused, which did not transpire. It was conditional upon receipt of favourable pre-sentence reports. It was made in the absence of full information, as Justice Culver had neither the victim impact statements nor the relevant caselaw.

[39] In the circumstances of this case, do fairness considerations require a reduction in sentence of the two appellants to a lesser period of incarceration?

[40] The pre-trial discussion was an informal attempt to facilitate resolution. The accused were not present. The precondition upon which the suggested range of sentence was given -- namely that all four accused plead guilty and be dealt with together -- was not met. Crown and defence counsel were far apart on what constituted an appropriate sentence and knew it was a matter that would continue to be argued before the sentencing judge.

[41] Reliance has not been argued in this case. Situations of reliance involve different considerations. Indeed, had pleas been entered by all four the day the discussion took place and sentencing followed shortly thereafter, different considerations might apply but here some two months elapsed between the discussion and the sentencing.

[42] The duty of the sentencing judge must be considered against this factual backdrop.

[43] The primary obligation of the sentencing judge is to impose a fit sentence. No one has argued that the sentence imposed was not fit. Justice Culver took into account the appellants' young ages, guilty pleas and prospects of rehabilitation. But, he also considered the brutality of the attack and the fact that it was unprovoked. The victim, a total stranger, was so severely beaten by four men acting in concert that he was left in a coma for a week. Thereafter, he was in intensive care for several days before being transferred to a step-down unit where he remained for about a month. He has suffered lasting neurological injuries and required physical and speech therapy.

[44] Justice Culver applied the proper principles to sentencing, turned his mind to the circumstances of the offence and of the offenders. The sentence was fit and within the range of sentences for similar offences.

[45] Fairness requires a consideration of the full context and the overriding obligation of the sentencing judge to impose a fit sentence. Reducing the sentences of the appellants would result in a disparity in sentence among the four people who committed the assault. That does not seem fair and offends the basic sentencing principle that similar sentences are to be imposed for similar offences committed in similar circumstances.

[46] The due administration of justice requires that pre- trial discussions of this sort take place. In my view, however, in the circumstances of this case, an expression on the appropriate range of sentence cannot be binding upon the sentencing judge.

[47] Even where sentencing proceeds by way of joint submission, the final determination as to sentence rests with the sentencing judge. This independence must be even greater where, as here, Crown counsel and defence counsel each urge upon the court a different range of sentence.

[48] The sentence is fit and was made according to proper sentencing principles. It ought not to be interfered with.

[49] For these reasons, I would dismiss the appeal as to sentence.

Appeal allowed.