Her Majesty the Queen v. Nault [Indexed as: R. v. Nault]
59 O.R. (3d) 388
[2002] O.J. No. 2017
Docket No. C37776
Court of Appeal for Ontario,
Charron, Borins and Feldman JJ.A.
May 22, 2002
Criminal law -- Sentence -- Conditional sentence -- Sixty- eight-year-old accused pleading guilty to possession of cocaine for purpose of trafficking -- Sentencing judge rejecting joint submission for conditional sentence of two years less a day because of his understanding that community could not provide necessary resources to supervise conditional sentence -- Accused's appeal from sentence of 18 months' imprisonment allowed -- Sentencing judge should have asked counsel to advise him of proposed supervision plan instead of relying on his own knowledge or understanding of availability of resources -- Sufficient resources existed in community to supervise accused on conditional sentence -- Trial judge erring in expecting community to be able to provide surveillance officers to enforce terms of conditional sentence -- Accused had served five months of his sentence by time appeal heard -- Sentence varied to 14 months' conditional.
The accused, a 68-year-old first offender with serious health problems, pleaded guilty to two counts of possession of cocaine for the purpose of trafficking. Crown and defence counsel agreed on a joint submission of two years less a day, to be served in the community. Although the sentencing judge was satisfied that a conditional sentence was appropriate, he rejected the joint submission and imposed a sentence of 18 months' incarceration followed by two years' imprisonment on the basis of his own perception of a lack of resources in the community to supervise conditional sentences. He stated that, in order for a conditional sentence served under house arrest to be a true sentence, it must be enforced by surveillance officers. The accused appealed.
Held, the appeal should be allowed.
The trial judge erred in rejecting the joint submission. Instead of relying on his own knowledge or understanding of the availability of resources in the community, he should have asked counsel to advise the court of the proposed supervision plan and, if necessary, to provide evidence that the proposed supervision would be in place. The record suggested that there were, in fact, sufficient resources in the Timmins community to supervise the accused on a conditional sentence. Finally, to expect a community to be able to provide surveillance officers to enforce the terms of conditional sentences may, in effect, preclude the imposition of conditional sentences in that community, and the trial judge erred in taking that approach. The trial judge was satisfied that the accused was not a risk to re-offend. The joint submission of two years less a day, served in the community, was appropriate. As the accused had already served five months in custody, the sentence should be varied to 14 months' imprisonment.
APPEAL by an accused from a sentence for possession of cocaine for the purpose of trafficking.
R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, 142 Man. R. (2d) 161, 182 D.L.R. (4th) 1, 249 N.R. 201, 212 W.A.C. 161, [2000] 4 W.W.R. 21, 140 C.C.C. (3d) 449, 49 M.V.R. (3d) 163, 30 C.R. (5th) 1 (sub nom. R. v. P. (J.K.D.)), consd Other cases referred to R. v. Dewald (2001), 2001 4721 (ON CA), 54 O.R. (3d) 1, 156 C.C.C. (3d) 405 (C.A.); R. v. Makar, 2000 MBCA 69, [2000] M.J. No. 458; R. v. Roberts, [2000] O.J. No. 3750 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 742.3(1), 742.6(9)
Gregory P. Jones, for appellant. Stephane Marinier, for respondent.
The judgment of the court was delivered by
[1] FELDMAN J.A.: -- The appellant pled guilty in Timmins to two counts of possession of cocaine for the purpose of trafficking. It was agreed that his role was as a courier who delivered cocaine for transaction purposes. He also allowed his apartment to be used as a storage location for packages of cocaine. The total amount of cocaine involved was 24 ounces. He was 68 years old, divorced and lived alone. He suffered from several serious medical conditions, some life-threatening, which required that he take 14 medications on a complex schedule. He had no criminal record.
[2] Crown and defence counsel agreed on a joint submission on penalty of two years less a day to be served in the community, based on the appellant's advanced age, his serious medical condition, lack of criminal record and low-level role in the enterprise.
[3] In particular, Crown counsel advised the judge that the Crown was aware of the quantity of cocaine found in the appellant's apartment, but that the Crown had taken a serious look at the case in agreeing to the joint submission. The Crown wanted to prevent drug trafficking in the community and felt that the sentence had to be a minimum of two years less a day. However, the Crown had taken the appellant's personal circumstances into account and felt that a sentence in the community was appropriate in the circumstances of the particular case.
[4] Although the sentencing judge was satisfied that a conditional sentence was appropriate, he rejected the joint submission and imposed a sentence of 18 months' incarceration plus two years' probation. He did so on the basis of judicial notice of a lack of resources in the community to supervise conditional sentences. He said [in translation]:
For the past two years, the message has been clearly sent in this community that this type of sentence cannot be considered given the lack of resources and the lack of surveillance required for such an order to have a punitive effect, for the sentence to have some sort of bite. And the Supreme Court of Canada has very clearly established that such an order must have a certain punitive element and that the preferred manner to demonstrate the punitive element of the sentence is house arrest. And in order for such a sentence to be a true sentence, it must be enforced by surveillance officers. As I indicated earlier, unfortunately this community does not have the resources to provide the type of surveillance that would satisfy the Court, so that the order would be worth the paper on which it is written. The Court will certainly not issue an order that cannot be enforced by the authorities, and the court cannot put its trust in the network of informers to oversee the conditions imposed in orders for a conditional sentence.
Analysis
[5] A sentencing judge is entitled to reject a joint submission "if accepting it would be contrary to the public interest or would otherwise bring the administration of justice into disrepute": R. v. Dewald (2001), 2001 4721 (ON CA), 54 O.R. (3d) 1 at p. 9, 156 C.C.C. (3d) 405 at p. 415 (C.A.).
[6] In this case, the sentencing judge rejected the joint submission for a conditional sentence, not because he believed that the sentence proposed was an inappropriate one for the offender in all of the circumstances of the case, but because of his understanding that the community could not provide the resources necessary to supervise the sentence.
[7] With respect to the sentencing judge, he erred in rejecting the joint submission. He erred in three ways:
[8] First, the sentencing judge appeared to rely on his own knowledge or understanding of the availability of resources in the community without a record before the court. Crown counsel had been clear that the Crown had seriously considered the situation of the accused before agreeing to recommend a sentence to be served in the community. If the Crown was not satisfied that appropriate resources were available to supervise or enforce such a sentence, the court is entitled to assume that the recommendation would not have been made.
[9] In a situation where the sentencing judge is concerned about the available resources, the judge should ask counsel to advise the court of the proposed supervision plan, and if necessary, provide evidence that the proposed supervision will be in place. In that way, the judge can consider the submission and his or her concerns in the context of a record, both counsel will have an opportunity to assist the court and provide input into the record, and a court on appeal of the sentence will have a record on which to base its consideration of the issue.
[10] Second, the record that does exist suggests that there are, in fact, sufficient resources in the Timmins community to supervise this offender on a conditional sentence.
[11] The appellant was on bail from January 2000 until October 2001 when he was sentenced. The sentencing judge found that the appellant had shown good conduct during that time, and based on that observation, made the finding necessary as a precondition to the imposition of a conditional sentence, that the appellant could "not be deemed to be a danger to the community". Further, the sentencing judge imposed as part of his sentence, a period of two years probation, with one of the conditions that the appellant report to the probation officer and be under the supervision of that person or another authorized person. In other words, the court appeared to be satisfied that probation officers or other authorized persons would be available to supervise the appellant as required while on probation. Presumably such persons would also be available to supervise him as required on a conditional sentence.
[12] Third, it is not clear from the record, what type or level of supervision the sentencing judge had in mind in order to be able to adequately enforce the punitive aspects of a conditional sentence.
[13] The punitive house arrest conditions of such a sentence are imposed by the court and are expected to be observed by the person under sentence, just as terms of probation or parole are to be observed. They are monitored by a conditional sentence supervisor with reporting and other appropriate conditions. Further, any breach is punishable under the Criminal Code, R.S.C. 1985, c. C-46 by having to serve the balance of the sentence in jail (s. 742.6(9)).
[14] To expect that a community would be able to provide surveillance officers to enforce the terms of conditional sentences, may in effect, preclude the imposition of conditional sentences in that community. It was an error of law for the trial judge to have taken that approach.
[15] Both the sentencing judge and the respondent rely on the decision of the Supreme Court of Canada in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, 140 C.C.C. (3d) 449 at para. 74 where the court says that "if the level of supervision available in the community is not sufficient to ensure safety of the community, the judge should impose a sentence of incarceration." However, that passage is addressing a different issue which is the risk of re-offending, and the need for the sentencing court to consider the risk of re-offending in the context of the conditions of the sentence that can be effectively imposed.
[16] In this case, the sentencing judge was satisfied, based on the experience of the appellant while on lengthy bail pending trial, that he was not a risk of re-offending. In any event, in this case the appellant was the subject of police surveillance in respect of the offence itself over a lengthy period prior to his arrest, so that on that ground as well, it is apparent that the law enforcement authorities in Timmins are well able to surveille the appellant in respect of any re- offence.
[17] This portion of the Proulx decision was recently considered by the Manitoba Court of Appeal in R. v. Makar, 2000 MBCA 69, [2000] M.J. No. 458 in similar circumstances to the case at bar. That court also expressed concerns regarding the implications of the quoted paragraph which were interpreted by the trial judge and by the position of the Crown in a manner similar to this case. The court noted that it cannot be up to the will of any province to effectively preclude the imposition of conditional sentences by failing to provide sufficient supervisory resources. I agree with the comments made by [the] Court of Appeal in that case. See also the brief endorsement of this court to the same effect in R. v. Roberts, [2000] O.J. No. 3750.
Conclusion
[18] The sentencing judge appeared to be satisfied that the appellant could have served his sentence of imprisonment in the community, except for the problem regarding community resources for supervision and surveillance.
[19] In light of the error of law, and the joint submission made by counsel for a sentence of two years less a day to be served in the community as a conditional sentence, I would set aside the sentence imposed by the sentencing judge and substitute a conditional sentence of imprisonment to be served in the community on the following terms which were discussed with counsel:
(1) The appellant will remain under house arrest with a curfew which requires him to be in his apartment except between the hours of 1-3 p.m. from Monday to Friday when he can go out to shop and attend his medical appointments.
(2) The only other exception is for medical emergencies or with the written permission of his conditional sentence supervisor.
(3) He is also bound by the statutory conditions set out in s. 742.3(1) of the Code.
[20] The appellant has already served approximately five months in custody. In those circumstances, giving some credit for the fact that jail time earns remission whereas time served in the community does not, the term of his conditional sentence, which was to be two years less a day, shall be 14 months. The period and terms of probation imposed by the sentencing judge shall remain in place.
Appeal allowed.