R. v. Peters, 2010 ONCA 30
CITATION: R. v. Peters, 2010 ONCA 30
DATE: 20100119
DOCKET: C50369
COURT OF APPEAL FOR ONTARIO
Feldman, Blair and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
Holly Ann Peters
Respondent
Karen Papadopoulos, for the appellant
Paul Slocombe, for the respondent
Heard: October 27, 2009
On appeal from the sentence imposed by Justice Ian V.B. Nordheimer of the Superior Court of Justice on March 31, 2009.
R.A. Blair J.A.:
[1] The Crown appeals from the imposition of a suspended sentence plus three years probation by Justice Nordheimer following a plea of guilty by the respondent to a charge of aggravated assault. The respondent is an aboriginal offender.
The Circumstances of the Offence and the Plea
[2] The respondent and the victim were acquaintances. They had an earlier altercation but had temporarily reconciled their differences until they found themselves together, along with the victim’s boyfriend, at a bar on March 8, 2008. Ms. Peters, the respondent, had been drinking and during the conversation took offence at something the victim said. She pushed the victim. The scuffle escalated and the boyfriend intervened to attempt to separate the pair. While he was doing so, the respondent lunged past him and swung the beer bottle she was holding at the victim’s head, breaking the bottle with the blow. She then followed through with her swing in a downward motion with the broken bottle, causing two lacerations to the victim’s face that required 21 stitches to close.
[3] Nearly a year after the incident, the victim was still experiencing continuing pain in her left eye and face, headaches, left eyelid muscle spasms, and facial asymmetry. The scars remain visible and may require plastic surgery.
[4] The respondent pled guilty to aggravated assault after the preliminary hearing and after the complainant had testified at that hearing. At the sentencing hearing, the Crown sought a custodial sentence of 12 to 18 months. The defence suggested a suspended sentence followed by two years probation. A conditional sentence was not open to the sentencing judge because the amendments to the Criminal Code, R.S.C. 1985, c. C-46, in 2007 prohibit the granting of such a sentence where a serious personal injury offence – of which aggravated assault is an example – has been committed.
[5] After considering all of the various factors involved and in particular, the Gladue report, the sentencing judge imposed a suspended three-year sentence with a lengthy series of probationary terms during that period. The Crown now seeks to appeal that sentence.
[6] For the reasons that follow, I would not interfere with the sentence imposed by the sentencing judge. In brief, while the offence was serious and the antecedents of the respondent troubling, it was open to the sentencing judge to apply the Gladue principles as he did and to impose the sentence that he did. I can find no error in principle in his reasoning nor – given the jurisprudence – can the sentence be said to be manifestly unfit. In such circumstances, the sentencing judge’s sentencing decision is entitled to considerable deference and an appellate court ought not to interfere.
The Circumstances of the Offender
[7] Ms. Peters was 26 years old at the time of her plea. She does not have any prior criminal record as an adult, but has two prior convictions as a youth, one of which was for assault causing bodily harm. The Gladue report revealed a difficult and disheartening upbringing in a home of violence and alcohol abuse. Ms. Peters, herself, may be suffering from Fetal Alcohol Syndrome. She has a history of abuse at the hands of her parents, of friends of her parents, and others, which started when she was three or four years of age.
[8] Ms. Peters has problems with alcohol and with anger management, both arising out of her background. She began to drink and experiment with drugs in her early youth, turning to crack dealing in her early twenties. It is apparent, as the sentencing judge noted, that the confrontation leading to this offence was directly related to her consumption of alcohol.
[9] In the last few years, however, Ms. Peters has managed to gain employment and has taken courses to improve her skills. At the time of sentencing, she was working at a bank as a financial services representative but has apparently lost that position since the sentence was imposed. The fresh evidence filed indicates that she continues to seek employment and is responding well to the guidance of her employment counsellors. She is also compliant with the terms of her probation and, according to her probation officer, “reports with a positive and prosocial attitude.” She has been referred to two substance use programs. Ms. Peters works as a volunteer for the youth program at Aboriginal Services of Toronto and is reported to be “a very strong individual who is genuine and thoughtful” and who has “a gift in working with youth.”
The Applicable Principles of Sentencing
[10] In the course of his reasons, the sentencing judge took into account all of the relevant principles of sentencing, including the provisions of s. 718.2(e) of the Criminal Code mandating the court to consider “all available sanctions other than imprisonment that are reasonable in the circumstances … with particular attention to the circumstances of aboriginal offenders” (emphasis added). He was aware of, and cited, the direction of the Supreme Court of Canada in R v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, at para. 93(3), that s. 718.2(e) is remedial in nature and is designed to ameliorate the serious problem of over-representation of Aboriginal people in prisons and to encourage sentencing judges to have recourse to a restorative approach to sentencing. He took into account the fundamental purpose of sentencing set out in s. 718 of the Code, namely to contribute to “respect for the law and the maintenance of a just, peaceful and safe society” by the imposition of sanctions that incorporate the sentencing objectives of denunciation, deterrence, rehabilitation and the promotion of responsibility in offenders.
[11] Ms. Papadopoulos argues firmly and ably, on behalf of the Crown, that the sentencing judge erred in principle by failing to give sufficient weight to the paramount principles of denunciation and deterrence. However, when consideration is given to the appropriate principles – as it was here – the weight to be attributed to those principles in the balancing exercise is generally a matter attracting deference to the sentencing judge’s decision. The sentencing judge not only referred to denunciation and deterrence in his general review of the applicable principles; he addressed those sentencing objectives three times during his consideration of the Crown’s position (which, incidentally, he acknowledged was “a reasonable one given the circumstances surrounding the offence”). In addition, he recognized the Gladue and post-Gladue jurisprudence underscoring that s. 718.2(e) establishes a new methodology for approaching the sentencing of aboriginal offenders but does not necessarily mean aboriginal offenders will ultimately receive different sentences from other offenders, particularly for serious offences such as this one. In particular, the sentencing judge addressed the statement of this Court in R. v. W. (R.) (2008), 2008 ONCA 800, 239 C.C.C. (3d) 47, at para. 31, and relied upon by the Crown: “In the case of serious and violent offences, even for aboriginal offenders, the balance will often tilt in favour of [deterrence, denunciation, and the need for social protection].” See also Gladue, at paras. 79, 88, and 93(9); R v. Kakekagamick (2006), 2006 28549 (ON CA), 211 C.C.C. (3d) 289, at para. 43 (Ont. C.A.).
[12] Finally, the sentencing judge noted the theme running through some of the authorities to the effect that the objectives of denunciation and deterrence are not only met through the imposition of a term of incarceration: see e.g. R v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 20 and 22; R. v. Wismayer (1997), 1997 3294 (ON CA), 33 O.R. (3d) 225 (C.A.), at p. 241-245.
[13] In the end – after balancing all of the factors relative to sentencing an aboriginal person, and after taking into account the seriousness of the offence and the aggravating and mitigating factors relating to it, the contents of the favourable Gladue report he had before him, the victim impact statements, and the particular circumstances of this offender – the sentencing judge simply decided that a period of incarceration was not the appropriate disposition for this offender in relation to this crime. He concluded:
In the end result, I am not satisfied that a period of incarceration is necessary either for the purpose of expressing denunciation or deterrence in this case. Further, a period of incarceration manifestly fails to achieve the restorative purpose that is of particular importance in the case of Aboriginal offenders. A period of incarceration would undoubtedly cause Ms. Peters to lose her job and then quite possibly set back the progress that she has made over the past few years. At the same time, however, I appreciate that there needs to be some close supervision of Ms. Peters in an effort to ensure that she does not commit a further offence.
[14] It was open to the sentencing judge to come to this conclusion on the record before him. To say that the balance will often tilt in favour of deterrence and denunciation in the case of serious and violent offences, as this Court did in W.(R.), is not to say that it always will. Neither Gladue nor its progeny establish that aboriginal offenders are to be sentenced to terms of incarceration in all cases of serious offences. At the end of the day, as many authorities have noted, it remains for the sentencing judge to consider the case as a whole and to arrive at a sentence that is fit and just in the circumstances.
[15] I have read the draft reasons of my colleague, Justice Watt. Respectfully, I am unable to accept – as he concludes – that the sentencing judge failed to give effect to the predominant principles of denunciation, deterrence, promotion of responsibility and acknowledgement of harm. The sentencing judge gave very careful consideration to all of the principles of sentencing relating to aboriginal offenders, including the relevant jurisprudence (referred to above) and including the need to give effect to the objectives of denunciation and deterrence. He was also alert to the need to promote responsibility in offenders for their actions, and said so explicitly.
[16] For the reasons he clearly expressed, and after addressing all of the pertinent principles and factors, the sentencing judge concluded that a period of incarceration was not necessary to meet the needs of denunciation and deterrence and indeed that it would be courterproductive to achieving the restorative purposes that are of particular importance in the case of Aboriginal offenders. This he was entitled to do. The weight to be given to the various sentencing factors – including whether incarceration was necessary to meet the objectives of denunciation and deterrence – was for him to decide.
[17] Nor do I accept that the sentencing judge misapprehended the evidence in any significant way that would open his decision to review.
[18] Without any error in principle on the part of the sentencing judge, his decision is entitled to deference and we are not permitted to interfere. As Lamer C.J. noted in R. v. M. (C.A.) (1996), 1996 230 (SCC), 105 C.C.C. (3d) 327, at paras. 91-92:
Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliament explicitly vested sentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code.
A sentencing judge ... enjoys a position of advantage over an appellate judge in being able to directly assess the sentencing submissions of both the Crown and the offender. A sentencing judge also possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender's crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be “just and appropriate” for the protection of that community. The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly.
[19] Similarly, I am not persuaded that the sentence imposed was manifestly unfit. In her factum, Ms. Papadopoulos submits that “[a]n offender, irrespective of descent, who violently swings a beer bottle at a female victim’s head, resulting in two serious gashes, ongoing pain, and facial scarring requiring surgery must serve a custodial sentence.” Respectfully, while such a result may often be the case, to say that an offender in such circumstances – particularly an aboriginal offender – must serve a custodial sentence is to state the sentiment too strongly, and is inconsistent with the Gladue jurisprudence and, indeed, the jurisprudence respecting sentencing generally.
[20] The Crown relied on this Court’s recent decision in R. v. Chickekoo, 2008 ONCA 488, a case with some similarities to this case. There, this Court upheld an 18 month sentence plus two years probation for an aboriginal female who broke a beer bottle over a victim’s head, leaving the victim permanently disfigured. There are distinctions between the cases, however. In Chickekoo, the injuries were more severe and the appellant’s adult criminal record was more pronounced. In any event, the two cases provide an example of how sentencing judges can arrive at different decisions in the proper exercise of their sentencing discretion, depending upon the nuances of the circumstances. I am not persuaded that the decision in Chickekoo leads to the conclusion that the decision of the sentencing judge here was manifestly unfit.
Disposition
[21] I would accordingly grant leave to appeal sentence but dismiss the sentence appeal.
“R.A. Blair J.A.”
“I agree K. Feldman J.A.”
Watt J.A. (Dissenting):
[22] From their conclusion that the sentencing judge did not err in principle and did not impose a sentence that was manifestly unfit, my colleagues accord substantial deference to the sentencing decision and would dismiss the appeal.
[23] I disagree. In my view, the sentencing decision is cumbered by error and is manifestly unfit. I would grant leave to appeal, allow the appeal, set aside the sentence imposed and substitute for it a sentence of imprisonment for 12 months followed by probation for three years on the same terms ordered by the sentencing judge. My reasons for doing so follow.
The Circumstances of the Offence
[24] My colleague has generally described the circumstances in which the assault occurred. Brief amplification is warranted.
[25] The principals’ differences arose from an incident a few months earlier. After an exchange of words, the respondent threw a glass of beer on the victim. The apparent settlement of differences was more akin to a grudging tolerance born of mutual remove than a meaningful reconciliation.
[26] Immediately prior to the assault that attracted the sentence under appeal, the victim had purchased two bottles of beer and one of water from the bar. She returned to the table she shared with her boyfriend who was talking to the respondent. The victim gave her boyfriend the bottle of water and the respondent one of the two bottles of beer. The victim could not hear something the respondent said during the conversation at their table. The victim said: “pardon”. The respondent pushed the victim and the fracas was underway. The record offers no indication that the victim was armed.
[27] Sentencing took place about one year after the offence was committed. The scars on the victim’s face remained visible but were fading. She continued to require pain medication.
The Circumstances of the Offender
[28] A brief elaboration on the circumstances of the respondent is in order.
[29] At the time of sentencing, as now, the extent to which the respondent might suffer from the effects of fetal alcohol syndrome is unknown. No testing has been done.
[30] The respondent is a chronic abuser of alcohol and has also consumed illicit drugs including ecstasy. The mainstays of her abuse are alcohol and marijuana. She has also trafficked in crack cocaine.
[31] As a young offender, the respondent accumulated two prior convictions and a conditional discharge. One conviction and the conditional discharge were for assault. The assault conviction arose out of the termination of a dating relationship. The respondent was upset. She invited her former partner outside of a licensed premises on the pretence that she wished to speak to him. An adult friend of the respondent followed.
[32] Once outside the bar, the respondent grabbed her former partner and began punching him in the head. Her cohort, the adult, approached. The respondent held the victim. The adult cut the victim’s face with a sharp weapon, causing injuries that required seven stitches to close.
[33] The second assault for which the respondent received a conditional discharge involved the respondent’s mother. The offence was committed while the respondent was on probation for the previous assault on her former boyfriend.
[34] The respondent acknowledges that she has problems with excessive consumption of alcohol and management of her anger. Details are sparse about her attendance at any programs that treat or provide counselling for alcohol abuse and anger management.
The Principles of Sentencing
[35] The parties share common ground that, in cases of unprovoked violence against another person, the predominant sentencing objectives are denunciation and deterrence. In this case, I would also assign a place of prominence to promotion of a sense of responsibility and an acknowledgement of the harm done to victims of unprovoked violence and to the community in which they live: Criminal Code, s. 718(f).
[36] The fundamental principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence committed and the degree of responsibility of the offender who committed it: Criminal Code, s. 718.1. This fundamental principle applies as much to aboriginal offenders as it does to non-aboriginal offenders.
[37] Sections 718.2(d) and (e) embody the principle of restraint in sentencing. Sentencing judges should not deprive an offender of his or her liberty if less restrictive sanctions may be appropriate in the circumstances: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 17. Sentencing judges are required to consider all available sanctions other than imprisonment that are reasonable in the circumstances for all offences, but are required to give particular attention to non-carceral sentences for aboriginal offenders: Criminal Code, s. 718.2(e).
[38] It is worth reminder that the words of s. 718.2(e) do not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender who committed it: R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, at paras. 33, 36. A fit sentence is one that is proportionate to the gravity of the offence committed and the degree of responsibility of the offender who committed it and vindicates the applicable sentencing objectives, principles and factors.
[39] Section 718.2(e) directs sentencing judges to undertake the process of sentencing aboriginal offenders differently so that a truly fit and proper sentence will be imposed in each case: Gladue at para. 33. What s. 718.2(e) does is to alter the method of analysis that sentencing judges use to determine a fit sentence for aboriginal offenders. Sentencing determinations must take cognizance of the unique circumstances of aboriginal peoples: Gladue at para. 75.
[40] It does not follow from either s. 718.2(e) or Gladue that, as a general practice, sentences imposed on aboriginal offenders must inevitably assign greatest weight to the principles of restorative justice and less weight or a subservient place to sentencing objectives like deterrence, denunciation and separation: Gladue at para. 78.
[41] Despite the difference in methodology mandated by s. 718.2(e) and Gladue for aboriginal offenders, the more violent and serious the offence committed, the greater the likelihood that the terms of imprisonment imposed on aboriginal and non-aboriginal offenders will be close to or coincide with each other: Gladue at paras. 33, 79. Section 718.2(e) and Gladue command a different methodology for determining a fit sentence for an aboriginal offender, but do not necessarily dictate a different result: R. v. Whiskeyjack (2008), 2008 ONCA 800, 93 O.R. (3d) 743 (C.A.), at para. 31; R. v. Kakekagamick (2006), 2006 28549 (ON CA), 81 O.R. (3d) 664 (C.A.), at para. 43; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 42.
[42] As a sentencing alternative, probation is primarily rehabilitative, not punitive, assigning prominence if not exclusivity to the sentencing objective articulated in s. 718(d): Proulx at paras. 23, 32. The failure to distinguish between sentences that are punitive, or at least have a punitive feature, and probation may result in the imposition of lenient sentences that fail to provide sufficient denunciation and deterrence and attract public disapprobation: Proulx at para. 30.
Analysis
[43] A constellation of factors satisfies me that this is not a case in which deference should be accorded to the decision of the sentencing judge.
[44] In the first place, the sentencing judge noted the absence of any previous failure by the respondent to comply with the terms of a probation order. In fact, when the respondent was arrested for an assault on her mother on August 25, 2001, an offence for which she received a conditional discharge on July 12, 2002, the respondent remained bound by the terms of a probation order made on September 12, 2000, as a result of a prior conviction of assault.
[45] The sentencing judge was also in error in his reference to the respondent’s prior experiences on probation in another respect. In addition to the periods of probation imposed when the trial judge suspended the passing of sentence after entry of convictions for possession of stolen property and assault, the respondent was also required to comply with a probation order when conditionally discharged for the assault on her mother in August 2001.
[46] Secondly, in my view, the trial judge erred in failing to appreciate that, although the respondent’s aboriginal status mandated the application of a different methodology to the determination of a fit sentence, it did not alter the fundamental duty of the sentencing judge to impose a fit sentence compliant with the fundamental principle of proportionality and the governing sentencing objectives: Gladue at paras. 33, 75. Section 718.2(e) does not require an automatic reduction of the sentence or a remission of a warranted period of incarceration simply because the respondent is aboriginal: Gladue at para. 88.
[47] The offence the respondent committed here was a serious violent offence. And not the first serious violent offence in which the respondent has participated. Gladue teaches that generally, as a matter of practical reality rather than sentencing principle, particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders: Gladue at para. 33. It is all the more so for recidivists.
[48] Third, the trial judge failed to consider how yet another, a fourth term of probation, could vindicate the predominant sentencing objectives of denunciation and deterrence, not to mention promotion of a sense of responsibility and an acknowledgement of the harm done to the victim and to the community.
[49] The sentencing judge invoked the decision in R. v. Wismayer (1997), 1997 3294 (ON CA), 33 O.R. (3d) 225 (C.A.) to support his conclusion that the sentencing objectives of denunciation and deterrence can be sated otherwise than by the imposition of a sentence of actual imprisonment. But Wismayer, like Proulx, made this observation in response to and rejection of an argument that, unlike a sentence of actual imprisonment, a conditional sentence of imprisonment could not service the objectives of denunciation and deterrence. The Proulx court concluded that a conditional sentence of imprisonment is punitive and capable of providing significant denunciation and deterrence: Proulx at paras. 35, 41.
[50] In this case, as the sentencing judge pointed out, a conditional sentence of imprisonment was not an available sentencing option. Aggravated assault is a “serious personal injury offence” as defined in s. 752 of the Criminal Code, thus cannot be the subject of a conditional sentence of imprisonment under s. 742.1 of the Criminal Code.
[51] As a general proposition, it is right to say, as the trial judge did, that a sentence of actual imprisonment is not the only sentencing alternative that can satisfy the sentencing objectives of denunciation and deterrence. A conditional sentence of imprisonment may also do so because it has a punitive ingredient.
[52] But, as the Proulx court is careful to point out, what distinguishes probation from a conditional sentence of imprisonment is the absence from the former and presence in the latter of this punitive component. Probation is primarily a rehabilitative sentencing option, one that services the sentencing objective in s. 718(d). It is the punitive aspect that distinguishes the conditional sentence of imprisonment, which like probation has a rehabilitative aspect, from probation: Proulx at para. 22.
[53] The unavailability of a conditional sentence of imprisonment in this case cannot justify the imposition of a sentence that lacks a punitive component and fails to provide an adequate ration of denunciation and deterrence: Proulx at paras. 22, 23, 29, 30, 32, 99. To achieve punitive objectives, like denunciation and deterrence, especially where aggravating circumstances are present, incarceration is generally the preferable sanction: Proulx at para. 114.
[54] Fourth, the sentencing judge erred in treating, as mutually exclusive, the sentencing options of probation and imprisonment. The alternative of a conditional sentence of imprisonment was unavailable, excluded by statute because of the character of the offence the respondent committed. But that did not leave probation alone or imprisonment alone as the only sentencing options.
[55] The unavailability of a conditional sentence of imprisonment as a sentencing alternative seems to have driven the sentencing judge down to suspend the passing of sentence and impose a period of probation. A conditional sentence of imprisonment, as Proulx instructs, combines punitive and rehabilitative features. Its unavailability does not warrant imposition of a period of probation, a sentence that lacks any denunciatory or deterrent value and is not faithful to the fundamental principle of sentencing: proportionality.
Conclusion
[56] With respect to the views of my colleagues, I am satisfied that the reasons of the sentencing judge reveal misapprehensions of relevant evidence (compliance with prior probation orders and the number of prior convictions or findings of guilt) and errors in principle (failure to give effect to the predominant principles of denunciation, deterrence, promotion of responsibility and acknowledgement of harm) and resulted in the imposition of a sentence for a serious and violent offence that is manifestly unfit.
[57] In the result, I would grant leave to appeal, allow the appeal, set aside the sentence imposed at trial and in its place substitute a sentence of imprisonment for 12 months to be followed by a period of probation for three years on the same terms as those imposed by the sentencing judge. The term of imprisonment that I would impose is circumscribed by the position of Crown counsel on appeal and should not be taken as dispositive of the lowest end of the appropriate range of sentence for aggravated assault in circumstances such as these.
RELEASED: January 19, 2010 “David Watt J.A.”
“KF”